Archive for the ‘Venture Capital’ Category

Managing Legal Challenges on a Startup Board

My partner Brad recently released his latest book, Startup Boards – Getting the Most out of your Board of Directors.  This is a great book for people looking for advice on how boards should operate in the very fluid world of startups.

One of the areas that Brad focuses on are some of the legal challenges that present themselves while serving on a board.  What might seem easy “hey, don’t I just do the right thing and all is well and good?” becomes a lot harder when different people are added to the mix.  For instance, did you know that under certain circumstance the board can be personally liable for actions of the company?  Do you know what types of lawsuits are most likely in a startup company?

This book tackles the most important legal challenges including things like VC self dealing, down rounds and founder departures.  While all of these situations are tough, they are even worse with an inexperienced board.

As the lawyer-boy at Foundry Group, I’m a big advocate of getting smart on these issues and this book is a great resource.

February 10th, 2014     Categories: Education, Venture Capital    

I’m Adopting A VC Code of Conduct

A few days ago, Gil Dibner posted what he called a VC code of conduct.  I read articles all the time where VC’s write about how venture capital “should work” and the vast majority of the time I either disagree or find them a waste of time.  I feel that most of these articles are just self promotion with no actual new intellectual capital being created.

But Gil’s article is fantastic.  It’s also depressing that he felt compelled to write it.  It is yet another indictment that many VCs behave poorly and have given our ecosystem a bad, but deserved, reputation.  When I read it I had three strong reactions: one, I have tried my best in my career to comply with these ideas (call me out if you feel otherwise!), two, I think others VCs would do well by adopting these proposals, and three I think my partners at Foundry Group score well on these metrics to date.

I’m going to summarize his idea of a VC code of conduct and add a few wrinkles of my own.  That being said, you should read his full article here.  I’m only going to detail where I have a particular spin.  I also think that Gil missed three themes that are important as well.

1. I will do no harm.  Should be “duh,” but being on boards for the last 15 years proves this isn’t as simple as it sounds.

2. I will respect your time. CEO / Entrepreneur time is simply more valuable than my time.  I don’t make the companies successful – y’all do.

3. I will not ask for material I don’t need.  And I wish Gil would have added “And I will read and be responsible for understanding all materials that you send me.”  I can’t stand board meetings where a CEO is having to go through the presentation for the benefit of lazy board members.

4. I will not string you along.  It always surprises me how many people thank me for a quick NO.  It’s the humane thing to do.

5. I will let you know about competitors in our portfolio.  Done.

6. I will be transparent about any conflicts of interest between and entrepreneur and myself.  I’d argue that this should be even broader.  Just be transparent in general!  An entrepreneur should never wonder what a VC is thinking.  Let’s just be open and keep filters to a minimum and clear honesty to a maximum.

7. I will not sign a NDA, but will act as if a reasonable one is in place.  Simple.  But also know that if you ask me for a NDA I’ll know you haven’t done much homework and you aren’t starting off on the right foot.

8. I will not share your slide deck unless you give me permission.  With my partners, yes.  With others, no.

9. I will not speak to your customers without permission.  This is horrible behavior in our industry that must stop.

10. I will educate before I negotiate.  I’ve always loved doing this and this is what led to Brad and I writing our book Venture Deals – Be Smarter Than Your Lawyer and Venture Capitalist.

11. I will be honest about what standard terms are.  I agree with the sentiment, but as a former lawyer, I hate the idea of negotiating over the term “standard.”  I’d prefer to just put our term sheet out on the web and give the same deal every time as we’ve done at Foundry Group.

12. I will not issue a term sheet unless my firm has made a firm decision to invest.  This is perhaps the worst behavior in our ecosystem today. I see it more often with late stage firms than early firms, but it is present at all stages.  Once a firm pulls this trick on a company I will never work with them again. Ever.

13. I will reflect the term sheet in the final legals.  A deal is a deal.  ’Nuff said.

14. I will not seek an unreasonable equity stake in your business.  I think this is an important one.  Everyone must feel like they have proper “skin in the game.”  This seems like a simple concept, but often you find people fighting over things that shouldn’t matter.  Assume the company will be a huge success and don’t over optimize around the edges.

15. I will avoid surprises.  I think that if VCs and entrepreneurs have transparent relations, as in 6 above, then this just follows.

16. I will act in the best interests of the company at all times.  It’s not only the law, but a good idea too.

17. I promise to try not to look at my phone in meetings.  This is a hard one, but an important one. I’m not perfect, but I’m trying.  Frankly, I find myself looking at my phone when the meeting gets bogged down, usually by a board member who didn’t come prepared.

I also think that there should be three additions to the list.  I welcome your feedback.

18.  I will respond to you promptly, especially if we have an investment in your company.  This should be table stakes to a VC, but it isn’t.  There are always particular emergencies and situations which will make this difficult, but it is really important for an entrepreneur to know they always have someone to turn to.  After all, being CEO is a lonely job.

19. I will not collude with other VCs to harm your company.  I find it reprehensible when VCs collude to either drive down valuation / terms prior to a financing, or when the company is in dire straights collude to take over the company on the cheap.  There are plenty of other situations, too.   This one may have the greatest “subject to interpretation” issue to it, but I’ve seen this line crossed at times and it disgusts me.

20. I will answer all well-tailored emails.  If I am sent a well-crafted email, I will answer it.  I promise.  Whether or not I know you or not, you’ll get a response.  This doesn’t mean that I will answer spam, emails created from mail merges, emails with so many grammatical and spelling mistakes that I can’t read or emails that are clearly from someone who has done no research into what Foundry Group invests in.  But if you at least try, you’ll get a response from me.

That’s an even twenty and I’m sure we could add a few more, but this would be my Twenty Commandments of VC, or as Gil put it a VC Code of Conduct.  

I’m proud to say that Foundry Group signs up to this code of conduct as we feel this should be the minimum baseline for good VC / entrepreneur relations.

Have an opinion?  Feel free to leave  comment below or hit me up at @jasonmendelson on Twitter.  Well done Gil and thanks for getting an important conversation started.

 

 

 

 

 

January 22nd, 2014     Categories: Entrepreneurship, Foundry Group, Frustrations, Venture Capital    

Wanted – Colorado-based Entrepreneur to Pitch My Me at Class

I co-teach a class at the University of Colorado Law School called “VC 360.”  We have MBA, Engineering and JD candidates and the course deals with all things in the entrepreneurial / venture ecosystem.

Each year, we have a pitch day where one entrepreneur comes in and pitches me.  The students get to watch.  The entrepreneur and I get an hour together and then the students get to ask questions for 20 minutes.

This is a real pitch.  It’s not any different than if someone comes to our offices, but there is a “studio audience.”

So if you are interested in pitching Foundry Group and want to do something great for the Boulder education community, let me know.  I can only take one.

The pitch date is 10/7 at 8am in Boulder.

September 11th, 2013     Categories: Education, Entrepreneurship, Financings, Venture Capital    

The “VC Bargain”

With the recently announced acquisition of our portfolio company MakerBot, the conversation invariably turns to “was this the best time for the company to sell?”

It’s a question that is asked every time a company sells and it usually creates a lot of noise by people whose opinions are usually misinformed and even more so, irrelevant.  The question is asked over and over and over again:  “When is the correct time for a startup to sell itself?”

The answer is simple:  “When the founders want to sell.”

Period.

Unfortunately, many investors do not feel this way.  Clearly, a VC can be very helpful in advising the founders about past experiences, the current state of the M&A market and their thoughts around valuations, but when the founders want to sell, it’s time to sell the company.  Who are we to tell the founders that they aren’t allowed to fulfill their dreams and create an event that will change their lives?

Brad and I have written a lot about venture term sheets.  (Plug:  buy our book!).  One thing we haven’t written about, however, is what we call “The VC Bargain.”

We believe this “bargain” is inherently created when VCs invest in a company.  And no, this isn’t in the legal documents, but should be part of a mutual understanding by both parties.  (Note, however, we’ve seen some VCs and many late stage funds actually try to draft into the documents at what valuations founders may sell at and we find this practice distasteful).

If a VC is playing for a longer / bigger outcome, then it is the responsibility of the investor to create some financial liquidity for the founders and employees that makes them feel secure.  The situation we hate is one where the founders and employees receive nothing except the message “no, you can’t sell, keep running the business.”

But this isn’t solely as one-way bargain.  If you take venture money, you have a duty as well.  You have a duty to actually work toward a liquidity event.

From time to time, we’ve encountered entrepreneurs who really aren’t interested in selling their company.  This has been expressed both explicitly “I have no intentions of ever selling my company” to more implicitly whereby an entrepreneur continually finds fault with potential buyers (“I hate their culture,” “I don’t like big companies,” etc.).

Few companies can expect to go public.  Therefore, the acquisition market is the only way for investors to create proceeds to return to their limited partners.  And everyone should know that our job is to take our investors money, invest it and return a lot more money to them.   Without acquisitions, we can not do this.

It amazes us, but we find that some entrepreneurs don’t actually realize (or respect) this when they take on investment.  Yeah, we know you don’t normally gravitate working for big companies (otherwise, why start your own?), but at some point, if things go well, BigCo may be correct path of the company.

Bottom line is that this VC Bargain is an important one in the startup ecosystem, but one that is not well understood by some.

June 25th, 2013     Categories: Entrepreneurship, Financings, Venture Capital    

We Signed an Important Amicus Brief in Oracle v. Google Case

At Foundry Group, we take a strong interest in the policy and legal ecosystem that affects the start up industry.  We’ve been among the first to support initiatives like Startup Visa and patent reform and have been active in city, state and national politics in the hopes of keeping the U.S. the center of the startup world.

I’ve recently left the NVCA board after my four-year term was up.  During that time I took a particular interest in SOPA/PIPA (glad that blew up, but keep your eyes open, there are still folks out there trying) and I’m proud to say that the association has a permanent IT policy group that did not exist before I joined.  High on the list of issues going forward certainly will be around Cybersecurity and more patent reform.

Recently, our company signed onto an amicus brief that might be the most important issue that we’ve faced.  In short, Oracle is threatening to chill innovation in the software industry by arguing that APIs are copyrightable.  Google is the defendant and should Oracle win this case, the implications are disastrous for our startup ecosystem and our economy.

Thankfully the folks at the University of California, Berkeley, spearheaded by Jennifer Urban see this as a major threat as well and wrote a cogent and powerful amicus brief to the court.  The list of signatories to the brief are here and represent a wide constituency of the industry.

Thank you Jennifer and team for your tireless efforts.  Startup land:  please support and help recognize these important efforts.

 

May 31st, 2013     Categories: Entrepreneurship, Law, Venture Capital    

Calling All Angels – Fort Collins Version

Three keys to a building a strong ecosystem for startups are: (1) entrepreneurs; (2) technology; and (3) investors.   For a long time, newer entrepreneurial communities have relied on the first two segments to attract the third.  We are now realizing that to sustain and grow a vibrant entrepreneurial community, we need to support all three.

Angel investors are typically very bright, successful entrepreneurs who want to give back after they cash out in one or two of their own ventures.  Although they understand how to build products and companies, they may not have a lot of experience in taxes, financing, and investment.  One of the big areas that can come back to bite them later is taxes.

My friend, Roger Glovsky, along with EKS&H, the Rocky Mountain Innosphere, and Impact Angel Group are trying to shine a light on tax issues that may be critical for angel investors to understand, such as 83(b) elections, tax qualified stock options, and trading equity for services.  In addition, they will talk about tax loopholes for investors, the Colorado enterprise tax zone credit, and tax deductible philanthropic funds to support Colorado startups.

If you are in the Fort Collins area next week, be sure to sign up for this special event (free!) on May 31 at the Rocky Mountain Innosphere.

May 22nd, 2013     Categories: Financings, Law, Venture Capital    

My “First” Rock and Roll Video (a.k.a “Come to VentureScape 2013!)

For those of you who know me, I have always loved being a musician.  For a while, I thought that I would make my living as a drummer, but the world conspired against me.  That being said, I couldn’t be grateful enough that I ended up as a venture capitalist.

Last year, I spearheaded the Foundry Group “I’m a VC” Video.  It was as ton of fun and I’m certainly proud of it, but musically it’s a parody song and I don’t have the same emotional attachment that I do with the real music that I create, especially those songs that I co-write with my business partner Ryan McIntyre for our band Legitimate Front.

Completely separately, I’m on the Executive board of the National Venture Capital Association, where I’m the Chairperson of the 2013 annual meeting, now called VentureScape 2013.  (Plug:  Sign up for the event!).  When I was drafted to come up with a different format than past years I knew that I wanted “fun” to be part of the event.

We decided to throw a huge party the night before the main event and thanks to Silicon Valley Bank, we are going to have a great event that revolves around….. wait for it….  MUSIC!  For the first time ever VCs are going to get together with their favorite folks and listen to world class music headlined by Pat Monahan of Train fame!

As part of the new format of the event (it’s not just the party, either, check out the agenda!), Emily Mendell, V.P. of Communications at NVCA created some great videos to promote the event.  Today’s video:  VC Rockstar Dreams and it features the music of Legitimate Front!  I love that Ray Rothrock and Marc Cadieux, both of whom will be performing as well, were in the video as well.

This is probably the closest that I’ll ever come to making a real video of my music, but it was a wonderful experience.  Check it out for yourself below.  And oh, yeah…. Come to the event, May 14th at the Great American Music Hall!

Notes:  Yes, that is really me lying on the street outside in San Francisco.  And yes, I was told that a person once died in the exact spot that I “performed” in.  All for the love of art.  Special thanks to Long Haul Films for a GREAT job.

 

February 26th, 2013     Categories: Hobbies, Just For Fun, Music, NVCA, Venture Capital    

It’s the Hours, not the Rate – Why Most People Focus on the Wrong Thing When Choosing a Lawyer

Given my background as a recovering lawyer, I’m often asked by portfolio companies, friends, other VCs, etc. for attorney referrals.  I don’t get asked too often on routine matters, but the really important “bet  the company” stuff where counsel selection is critical.  Fortunately, I’ve had the pleasure to work with a lot of good folks which soothes my inner zen master, as so many lawyers are average at best.

However, literally every discussion I have is similar to this:

Me: “Hey, you should check out X, Y and Z for what you need.”

Them: “I did, thanks for the recommendations.  They are all great, but X is $500 and hour, Y is $650 and hour and Z is $850 an hour.  Therefore we are going with X.”

Me: “You realize that hourly rate is largely irrelevant?”

Them: “Huh?”

And thus a discussion ensures on why hourly rates are largely irrelevant.  Why is this the case?  Simple math: Total Bill = Hourly Rate X Hours billed.

In all my years of auditing lawyer bills, it’s the hours that always stand out.  The hours, in any complex matter are what spiral out of control.  In these big issue situations (litigation, patent stuff, M&A, IPOs, etc.), the amount of hours that an efficient and creative lawyer will save you far, far outweigh whatever hourly rate they may charge.  In fact, the higher hourly rates seem to have little or no effect on overall lawyer bills as I look across multiple companies, it’s all about the knowledge, experience and efficiency.

One simple decision, for instance the decision to not file a particular motion, response, fight an irrelevant issue, etc., will impact the total fees way more than an hourly rate.

So when you are shopping, do your diligence on the creativity, efficiency and deep domain knowledge the lawyer has.  The amount of hours you will save far surpass any difference in rate.

(***Caveat:  This doesn’t pertain to simple matters like company formation, typical venture financings, etc.  Also, at some point hourly rates DO matter, but I’m thinking of a lawyer who is  $1000 an hour and I would stake my reputation that his overall bills are lower than any of his peers for similar matters.)

January 20th, 2013     Categories: Law, Venture Capital    

Startup Summer! Find your great summer internship here!

Of all the projects Startup Colorado initiated in its first year, one of the most successful was Startup Summer, a summer internship program that combined a ten-week internship at a Denver/Boulder startup with a series of evening events focused on teaching the student-participants the fundamentals of entrepreneurism.  Last year 18 students worked with 14 companies in a variety of roles, from web developer to marketer.

Startup Colorado is now accepting applications for the second year of the Startup Summer program, which will be open until March 1st.

The program includes:

  • A paid ten-week internship with a Front Range startup; the internship will include frequent interaction with the company founders and management team
  • The Startup Summer seminar series, featuring prominent entrepreneurs teaching classes on entrepreneurship
  • A weekly social event with business leaders in the community
  • A close-knit community with your peers in Startup Summer
  • An opportunity to interact weekly with a personal mentor experienced in startups and entrepreneurship

Like last year, Startup Summer is looking for students at colleges or universities who are aspiring entrepreneurs and want to accelerate their development by getting plugged in to one of the hottest startup scenes in the nation.  Unlike last year when the program was limited to students in Colorado, we are opening the program up to any student actively enrolled at a four-year program in the United States.

If you are a student at a four-year college with a passion for entrepreneurship, or know a student who would be interested, you can get more details and apply to Startup Summer here.

January 6th, 2013     Categories: Education, Entrepreneurship, Venture Capital    

Venture Summit | West: Wrongly Charging Entrepreneurs to Pitch VCs

What is old is new.  Entrepreneurs  are stil being asked to pay to pitch.  It’s WRONG.

Two and a half years ago, I wrote a post about a Boston group trying to charge entrepreneurs $4500 to pitch venture capitalists at an event.  Many in the startup community were appalled by this especially folks like Jason Calacanis who created the Open Angel Forum specifically to create an event where entrepreneurs could gain free access to investors.

To quote my partner Seth:

image

THERE IS NO CIRCUMSTANCE IN WHICH ENTREPRENEURS SHOULD PAY TO PITCH THEIR BUSINESS TO PROSPECTIVE INVESTORS.

PERIOD. END OF STORY.

 

Microsoft, who had been a sponsor of the Boston event, terminated their relationship after the pay-to-pitch arrangement was publicized.  I thought all of this activity would die, but it’s 24+ months later and it looks like the idea has been resurrected.  And it makes me just as sick today as it did then.

Venture Summit | West, being held February 13th is an event looking to make money off of entrepreneurs who need to raise money.  The price?  $1585.00.  I suppose the good news is that if you apply and don’t make the cut, they don’t charge you.  But $1600 bucks to pitch VCs?  This is completely backwards and distasteful. They also offer startups a ticket for $400 if they just want to come and network with the VCs at the event.

They are charging the VCs to attend ($500) and they have a bracket for “others” at ($700).  So at least the investors are not getting a free ride on the backs of the entrepreneurs, but can we finally be done with trying to make money off of startups that don’t have any cash?  Come on folks, create a business model where you can make some money but NOT charge the entrepreneurs.  My bet is that many of the VC attendees have no idea this is even going on.

Lastly, if you are trying to raise money, do you homework.  You have many other outlets to meet VCs, including OAF, and simply going to VC websites and finding email addresses.  There are events all over the place where you can network and / or pitch.  Even online.

I hope that companies aren’t taken in by their slick marketing materials.

 

December 12th, 2012     Categories: Company Running, Entrepreneurship, Financings, Frustrations, Venture Capital