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The Ad Hoc Law Firm?

The other day I wrote a post, In Startup Law, Big Can Be Beautiful, in which I reflected on the trend of boutique law practices popping up in the startup space, and whether large law firms really are as out-dated in this area as today’s zeitgeist would suggest.  One theme of the post was the notion of startup law being integrated, much like healthcare, in the sense that input from many specialists is often required to provide proper counsel to a client.  Boutique practices are obviously at a disadvantage in this respect because their whole model is built around not having teams of lawyers in dozens of specialties under the same roof: they call this “overhead.”

I recently came across an article with an extremely interesting concept: the ad hoc law firm. It talks about how solo practitioners and boutique practices, at least in some areas, are creating networks through which they can consult with one another and scale when required, but operate independently when not.  From a theoretical and economic perspective, this certainly sounds like the best of both worlds: you have capacity equivalent to a large firm built into your network with specialists and generalists on call when needed, but you only pay for what you use.

I posted a question on quora, which unfortunately no one has answered, asking what sorts of process boutiques and solos have in place to make this kind of system work.  The area that really interests me is how technology can be used to facilitate this concept.  Right now it seems that most boutiques simply call a specialist when they need one, and then begins a process of probably checking conflicts and transferring the necessary documents over.  Consulting outsiders seems to carry far more friction than it would inside of a firm.

But what if all the boutiques/specialists in this “network” operated on the same platform, and scaling was simply of matter of “inviting” others to a particular deal, much like you invite someone on LinkedIn or Basecamp. A few clicks and all the requisite checks and file access could happen automatically.  Going one step further, what if these networks had a shared document management system, through which they could share work-product with one another? That would address another advantage mentioned in my post: that volume and experience curves favor large firms.

That sounds like a powerful idea, and if someone’s not working on it already, there’s an enormous market opportunity to be grabbed.  Cloud-based law practice services like Clio and Lawloop are well-positioned to go after this, but right now it seems they’re focused more on connecting attorneys within a single firm.  Some form of Google+-esque granularity would need to be built in to accommodate a wider network.

The Founder’s Stock Issuance

There’s a lot of uninteresting formality that goes on in a startup’s corporate formation, most of which founders rightfully ignore because they have better things to worry about.  But there’s one document that pretty much every founder will make sure to ready carefully – or at least ask lots of questions about: the Founder’s Restricted Stock Purchase Agreement (or some variant of that name).  Here’s a quick outline that an entrepreneur might use to walk through the document:

General Themes: We (1) want to make sure the Company owns all IP; (2) want to incentivize the founder to stay with the Company and add value; and (3) if the founder leaves the Company or someone else gets ahold of the shares, we want to be able to get them back so no one who isn’t involved with the Company has voting power.

  • Number of shares and nominal price – Most of the time the stock is sold at par value, which will be a fraction of a cent.  Because the Company is at the very beginning stages and extremely risky, placing this miniscule value on the stock usually isn’t considered problematic.
  • IP Assignment – In exchange for the issuance of stock, the founder assigns all rights to the IP that he/she may have with respect to previous work.  Look for a very long definition of what constitutes Company IP.
  • Repurchase Right – This is where you’ll find the vesting schedule.  Nutshell: a mechanism to require the founder to earn the shares over time, and giving the Company the right to get the shares back if anyone leaves.  Explaining that in more detail would take too long for this post, so just click that link.  Unless a founder’s gone solo, there should be a vesting schedule in the document.  If not, fire your lawyer, or get one.  Also useful: Vesting Calculator.  You’ll also likely sign some form of Assignment that gives the Company the administrative ability to exercise this right.
  • Acceleration of Vesting – Upon certain events, usually termination of the founder, a Change in Control (think acquisition), or both, a certain percentage of the stock’s vesting is “accelerated.”
  • Miscellaneous Securities Law Reps – Lots of stuff thrown in by lawyers to ensure that the document doesn’t violate any securities laws.
  • Right of First Refusal – Basically, you can’t sell the shares to anyone without the Company first being able to buy them on the same terms.  Meant to keep shares from getting into the hands of strangers.
  • Divorce/Separation Repurchase Right – If you divorce or legally separate from your spouse, and such spouse happens to get ahold of some shares, the Company has the right to buy them back.
  • Death Repurchase Right – This is somewhat more optional and language varies, but still quite common.  If the founder happens to pass away, the Company has the ability to repurchase shares at fair market value to prevent them from being transferred to the founder’s heirs, devisees, etc.
  • Transfer Restrictions – General restriction that you can’t transfer the shares other than through a “Permitted Transfer” (or some variant of that term), which usually includes gratuitous transfers (not sales) to immediate family and affiliate entities, and requires consent of the Company.
  • Escrow of Shares – The Company (actually their attorneys) will hold on to the actual certificates of the shares and handle administrative matters related to them.  This helps the Company enforce the transfer restrictions and other covenants in the document, and for future diligence purposes it just makes it easier to have them in one central place.
  • 83(b) Election Language and Form – Here’s an explanation.  You have 30 days from the issuance of the shares. It keeps you from being taxed as your shares vest.  Do it, or you’ll be sorry.
  • Compensation Agreement/701 Language – In a nutshell, all share issuances need to qualify for a securities exemption in order to avoid having to “register” the shares, which is crazy expensive.  Rule 701 is one such exemption, and it requires that the shares be issued as compensation – in this case they’re being issued in exchange for IP and past service – not for an investment.
  • Spousal Acknowledgement – Your spouse acknowledges all of the restrictions in the agreements, agrees to be bound by them if he/she ever gains ownership of the shares, and gives you (founder) the right to act on his/her behalf with respect to shares.  This makes sure community property won’t muck up the ownership and that nobody has to ask your spouse for permission to vote the shares or do anything else with them.

Obviously, to make all of these provisions work together there will be lots of extra detail providing processes for exercise, waiver, notice, and explanations for how each provision interacts with the other.  The devil is definitely in the details, and, if you’re working with a reputable firm, this document will have been screened by specialists in tax law, employment law, IP, etc. to ensure that they pass legal muster.  A lone generalist with no outside input can be dangerous.

Bridges or Seeds? A Primer on Your First Financing

by Nick Ares by Flickr

A lot of discussion has revolved around the appropriate structure for raising a “seed round,” which for most tech startups means a financing under $1M.  The two general options are (1) convertible debt and (2) a “lite” seed equity round.  Conventional wisdom seems to be that you should always issue convertible notes because it means fewer legal fees.  But the truth is that the economics of convertible notes are such that you’ll end up giving back any savings, and maybe a bit extra, through equity and liquidation preference.  While there are a lot of opinionated articles on this subject, my goal here is to be more balanced and simply outline the pros and cons to consider as an entrepreneur, because the right choice has a lot to do with context.

Summary

  1. How much do you intend to raise? – $1M+ likely means a full equity round. Below $500K probably means convertible notes. Somewhere in-between means the below analysis between seed equity and convertible notes.
  2. Who are your investors?  If they’ll happily sign your docs without negotiating them to death, then you should consider equity, provided you know what you’re doing with valuation. Otherwise, convertible notes are better.
  3. How long until your big funding? If you expect to raise money soon, and your Angels feel the same way, then convertible notes won’t cost you much more in terms of dilution.  But if you expect to rely on this money for a long time, and anticipate a rocky future funding environment, you should prefer seed equity.

Reality Check: The reality of many, but not all, startups today is that investors are conditioned to expect convertible notes in seed rounds, regardless of whether equity would be better.  If you find that your investors won’t even entertain the idea of a seed equity round, then you should simply use what you learn to minimize the cons of convertible notes.  Not much else you can do.

General Vocab

Debt/Notes – When you issue a “note” to someone, you are saying that they are lending you money.  Like with most loans, they are guaranteed only a fixed amount of payment, and they have the right to force you to pay it back, which can include liquidating your company.  I’m sorry, did I scare you? Good.

Equity/Stock – Generally, when you issue “stock” to someone, they aren’t “lending” you money; they’re investing it.  This means that if the company booms, they make more money (unlike a lender).  But if it collapses and loses everything, they can’t demand that you give them their money back, absent some showing of fraud

Convertible Notes – Rather than issuing stock, you issue “bridge” notes that carry a specified interest rate, maturity date, and mechanics for converting the principal and accrued interest into stock when the company raises a “qualifying” full-blown equity round.  So it starts out as debt, but converts into equity.  Very simple documents, and therefore fewer points of negotiation, which means fast and cheap.

Series A Round – The Company’s first fully negotiated financing, usually in an amount north of $1M, in which preferred stock is issued to investors, most of whom are likely professional institutional funds. Usually involves a fair amount of drafting and negotiation, with 5-figure legal bills.  Most experienced firms have their custom form documents, although they largely follow the NVCA Model Legal Documents.

Seed Equity Round – An equity financing, usually at or below $1M, that involves the issuance of simplified preferred stock.  There are probably a half a dozen or more versions of these standardized doc sets, the most popular being the Y-Combinator Series AA, the TechStars Model Seed, and the Series Seed.  You can find a great chart comparing these at this link.  The idea is that, because these docs are openly available on the internet and everyone can read them, you can agree in advance to “just use them,” and not spend time or money negotiating.

Question 1: How much money are you raising?

If you are raising around $1M+, then 99% of the time you will just do a full Series A.

  • The people you are likely taking money from will not be OK with the simplified Seed Equity docs, because of what they leave out, and the convertible notes will similarly be too simple for what investors want.
  • Also, a $1M+ raise is usually enough to justify the legal costs of drafting and negotiating a full Series A set of docs.

If you are raising less than $500K, then the vast majority of the time you will just go with Convertible Notes.

  • Exception: if you are (i) raising money from people who really don’t care much about the legal nuances of the docs, and therefore will just sign what you give them, and (ii) you, because of personal experience or experienced outside input, are comfortable with setting an early-stage valuation on your company, then you might still go with Seed Equity.  Otherwise, the amount of money being raised will not justify the legal cost in negotiating even lite Seed Equity docs.

If you are raising between $500K and $1M, then you’re in a territory where analyzing the pros and cons of convertible notes v. seed equity becomes important.  Many lawyers will just tell you to do convertible notes because it’s cheaper, but that isn’t always the case, and in some cases slightly higher legal costs may still be worth it.

Convertible Notes v. Seed Equity: Theory

Convertible Notes

Pros:

  • Shorter documents with fewer deal terms, so less to negotiate over. Cheaper.
  • Delay giving certain rights: Board seats, information rights, protective provisions, etc. rarely are given to convertible noteholders, so at least you maintain maximum control over your Company for a longer period of time.
  • Avoids setting a hard valuation on the Company, which is good if you and your investors are inexperienced and are likely to get it way wrong.  If you set too high of a valuation, you risk (i) looking like an idiot to future investors, which may put them off from investing altogether, and (ii) having a down-round in the future, which is dilutive and makes everyone feel as if they lost money.  If you set too low a valuation, you (a) also look like an idiot, and (b) likely have limited the valuation you get in your next round because those investors won’t want to pay a significant multiple over the seed valuation, even if it’s justified.
  • Exception: Capped Notes – It’s becoming fairly common to issue “capped” convertible notes, a full description of which is beyond the scope of this post.  Basically this means that the notes will convert at the lesser of the valuation at the next round or the valuation cap that you placed in the note.  While not exactly a valuation, it will more or less be seen that way by the future investors, which removes a lot of the above-mentioned benefits of deferring valuation.
Cons:
  • Forced Liquidation: Remember that part about a lender being able to force your company to liquidate? While this rarely actually happens because of reputation and the fact that early-stage startups rarely have hard assets to grab, you’re still handing someone a loaded gun, and you will worry about it if maturity time comes around.  This is why you should choose your angels wisely.
  • Discounted Conversion, Interest: Convertible notes almost always (i) accrue interest that will also convert into equity, and (ii) convert at a discounted price to what investors in the future round are paying.  The purpose of this discount is to “compensate” the early investors for taking on extra risk relative to the later investors, which makes sense. But it also means that you are effectively giving away more shares for the same amount of money than if you would have just issued equity.  So you may save on legal fees, but you’re paying for it with more dilution.
  • Liquidation Overhang – Liquidation overhang has to do with the fact that, while the convertible notes are converting at a discount to the price in the Series A round, the liquidation preference on their shares is set at the full Series A price, so they’re getting more preference than they actually paid for. Again, you’re giving away more for less money.  This also means that the Series A investors have to share more of their liquidation preference with the convertible note holders than if the noteholders had simply bought equity, which is unfair to those Series A investors, and might result in their forcing you to change the notes in the later round. A theoretical solution is to create the discount by issuing more common stock on top of the preferred stock, but this unfortunately is quite rare.
  • Misaligned Incentives: Just to explain this quickly, when someone approaches you to make an equity investment, they want the lowest company valuation possible, because it means they get a larger chunk of your company.  When someone gets convertible notes, they already handed you their money, but the valuation keeps moving until the notes convert. So while you’re trying to make the Company more valuable, they are incentivized to want the opposite, because a higher valuation means they get a smaller portion of the Company.  This may be a purely theoretical issue depending on your investors, but incentives shouldn’t be ignored, especially when you’re relying on your Angel investors for advice and introductions to VCs.  This is also why valuation caps, explained above, have become more common-place in convertible note rounds, because they guarantee a certain percentage of your Company to the noteholder.

Seed Equity

Pros:
  • Clearly defined rights and ownership – Because you are having the investors sign definitive equity agreements, their rights and their percentage ownership are clearly set, instead of being deferred to another negotiation.
  • Aligned incentives – You avoid the misaligned incentives mentioned above.  They have as much of an interest in increasing the value of the Company as you do. No conflicts between the converting notes and investors in later rounds either.
  • Good practice for the big leagues – By having issued equity, gone through some basic equity documents, and even taken on a board member or two, you’ll be well-prepared for when you have to raise a full VC round.
  • A False Pro: It’s often claimed that a benefit of seed equity over convertible notes is that, when issuing equity, the holding period for capital gains treatment begins at issuance, but for the stock issued upon conversion of notes it doesn’t start until conversion. This is generally not true.
 Cons:
  • Valuation Risk: Issuing seed equity requires you to value the Company at a very early stage, which is risky, as described above.
  • More Negotiation and Legal Cost: As simplified and stripped-down as all the lite seed equity docs are, it’s uncommon to find investors who will sign the docs and be done with it. The rare exception would be professional early-stage investors who’ve grown extremely comfortable with a certain set of docs.  Again, choose your angels wisely.
  • Follow-on rounds slightly more complicated: At some point, you will likely need to raise a full blown venture capital round with all the bells and whistles. Normally the docs in one equity round become the basis for the docs in the next round.  Given that the firm you’re working with is likely to have their own forms that don’t completely sync with the terms of the lite seed equity docs, there may be a slightly higher cost in having to modify things to make it all work.

Question 2: Who are your investors?

If your investors are mostly interested only in the economics of your company, and you’re comfortable that they (or their lawyers) won’t start negotiating the docs to death, then the difference in negotiating/legal costs between convertible notes and seed equity probably goes away, and you should go with seed equity.  You’ll have better aligned incentives, clearly defined rights, and you won’t end up paying more in equity later on because of discounts, etc.

However, if there’s any hint that your investors are going to want to go through the docs and negotiate various points, and there usually is, then the seed equity transaction will almost certainly end up more expensive than a convertible note round.  Angel investors and their lawyers, especially in Texas, are notorious for not knowing what they’re doing in negotiations, and it will cost you.  Just have them sign simple convertible notes, and let them return to their cattle ranching or dentistry practice.

Question 3: How quickly do you expect to raise a full VC round?

Convertible notes have historically been called “bridge” financing because they were meant to be just that: some money to hold you off until you close a larger funding round that’s already in the works.  If you and the seed investors know a larger round is coming soon, then a quick convertible note round can be worth it, provided you can use this expectation to keep the discount to a minimum, and possibly keep the note uncapped.

However, if you don’t anticipate raising a larger round anytime soon, which means that you are going to rely on this money for a longer period of time, then you’re better off issuing seed equity.  You’ll avoid a long period of accrued interest, your investors won’t be worried about getting hosed because of valuation changes, and therefore you won’t have to give a substantial discount in order to compensate the investors for that risk.  You also won’t have to go for a long period of time being paranoid about that coming maturity date.

As a closing note, I’ll remind you of the reality check I mentioned.  Some investors are highly opinionated about debt v. equity and won’t let you persuade them in the opposite direction.  In that situation, you just have to go with the flow and pay attention to all the variables.