Loading...
Answers
MenuIs there such a thing as a first right-of-refusal for an equity stake or C-level position?
Answers


This sounds incredibly convoluted and problematic for you. Generally, any financing structure that is this unique is a turn-off to new investors, especially institutional investors. That they've recently raised funding for their business but are contemplating building a new business with you (as a subsidiary) is a concern unless this was part of the plan they articulated to their investors and investors are aware and supportive of this initiative. Finally, it seems as though you are being asked to invest a lot of energy in something that is entirely dependent on future funding validating the business, which is always a significant risk.
Obviously, I'm missing a lot of details and so happy to talk in a call but I would say based purely on how you have defined this situation, that it seems more trouble than it's worth to you.


I'm not an attorney but if this was my company I would probably put some kind of contingency clause in your vesting schedule that makes vesting of shares contingent on your performance and the funding being raised.
You can document such an agreement in any way you like. Typically, you might see provisions regarding contingent employment & incentives in your consulting agreement. For an agreement like this to be valuable to you, you would want to set forth the terms in detail, including a good faith effort to obtain Series B, the terms on which the executive position/equity is offered (i.e. as a ROFR, automatic trigger upon financing, performance-based or other metrics, etc.), what exact position/responsibilities would be offered, what type and how much equity would be offered and on what vesting schedule (or, if preferred, you can leave these terms vague). I think it would be unlikely that a startup would want to get that specific in advance. However, it can be tough to put agreements of this sort in any sort of binding writing because the needs of a startup can change over time depending on performance, vision, investors, etc. It's a double edged sword: If you don't put these agreements in writing, then they are not binding, but if they are in writing, they may end up being out of line with actual need of the company (or you) when that time comes along.
So, don't be surprised if a startup doesn't want to be bound to anything in writing and make sure that your agreement for consulting services is fair without assuming you'll get future employment or equity.
Related Questions
-
What legal precautions can I take to make sure nobody steals my startup idea?
I've discussed ideas with hundreds of startups, I've been involved in about a dozen startups, my business is at $1M+ revenue. The bad news is, there is no good way to protect ideas. The good news is, in the vast majority of cases you don't really need to. If you're talking to people about your idea, you could ask them to sign an NDA ("Non Disclosure Agreement"), but NDAs are notoriously hard to enforce, and a lot of experienced startup people wouldn't sign them. For example, if you asked me to sign an NDA before we discussed your Idea, I'd tell you "thanks, but no thanks". This is probably the right place though to give the FriendDA an honorable mention: http://friendda.org/. Generally, I'd like to encourage you to share your Ideas freely. Even though telling people an idea is not completely without risk, generally the rewards from open discussions greatly outweigh the risks. Most startups fail because they build something nobody wants. Talking to people early, especially people who are the intended users/customers for your idea can be a great way to protect yourself from that risk, which is considerably higher than the risk of someone taking off with your idea. Another general note, is that while ideas matter, I would generally advise you to get into startup for which you can generate a lot of value beyond the idea. One indicator for a good match between a founder and a startup is the answer to the question: "why is that founder uniquely positioned to execute the idea well". The best way to protect yourself from competition is to build a product that other people would have a hard time building, even if they had 'the idea'. These are usually startups which contain lots of hard challenges on the way from the idea to the business, and if you can convincingly explain why you can probably solve those challenges while others would have a hard time, you're on the right path. If you have any further questions, I'd be happy to set up a call. Good luck.
-
How can I smoothly transition from full time worker to self-employment?
The ways I've done this in the past are 1) Find some customers that are willing to hire you (or your product) but know that you'll only be free nights & weekends to support/work with them. 2) Find a "partner" (co-founder or other) that's got a flexible schedule that can help build the business while you're at work. 3) Block out nights, mornings and weekends to build the business till you have enough orders to cover 50% of your salary. This might mean 7pm-11pm most nights, and 4 hours each day Sat & Sun. Make progress (sales $$$) and momentum. All that being said, it's risk reward. Sounds like you want to avoid taken the risk, and I get that .. but the upside is always smaller. Unless you put yourself in a position to have to succeed (ex: quitting your job) then you may never make the scary decisions that are required to build a company (like cold calling, going in debt, making a presentation, etc). I'm on company #5 with many other side projects started nights & weekends .. so I get it - but don't be afraid to bet on yourself and go all in.
-
If I am planning to launch a mobile app, do I need to register as a company before the launch?
I developed and published mobile apps as an individual for several years, and only formed a corporation later as things grew and it made sense. As far as Apple's App Store and Google Play are concerned, you can register as an individual developer without having a corporation. I'd be happy to help further over a call if you have any additional questions. Best of luck with your mobile app!
-
Where to incorporate a new software as a service busines?
I'll keep try to keep this answer brief, but there are several factors and nuances that can be discussed in more depth. Where you decide to incorporate partly depends on what your future goals are with your company. Companies that plan to seek venture capital or go public typically choose Delaware as the state of incorporation, and usually choose a C-Corp. Delaware has a very well developed body of law surrounding corporate governance and that provides comfort and more certainty to future VC investors. If you're not planning to seek VC money any time soon, an LLC is a smart decision because of the tax benefits it can provide to you as the owner. It sounds like you want to grow your company on your own without outside financing. If that's the case, I would recommend forming your LLC in California. Regarding California vs. Delaware, one benefit to forming your LLC in California is that you can avoid paying a registered agent fee which can cost anywhere from $100-200 a year. If you plan to seek venture capital down the road, you can reincorporate in Delaware.
-
How do we get our clients to give us a personal introduction to other people who are capable of becoming clients?
The one word answer is: ask! Make it a process to systematically ask every client for referrals. Referrals from happy customers are indeed one of the best ways to generate new business. When and how to ask is a matter of taste and practice. Let me give you two examples which apply to B2B. 1. Ask as soon as your prospect has made his buying decision. From Steli Efti, Startup Sales Guide - www.startupsalesguide.com "When a prospect has already made a buying decision, say: Great, but I can’t let you buy just yet. Right now, we are a startup. This means we focus all our energy, time and resources on delivering as much value as we can to our customers. We don’t have a big marketing budget. If you are happy with our product, please recommend us to others who you think might benefit from our solution as well.” 2. Ask when you are about 2/3 of a project, or when you have significantly progressed in the relationship with your buyer. Here is some great material by Alan Weiss: - Asking For Referrals: https://www.youtube.com/watch?v=pXJXukZB94s - How to maximize a referral: http://www.contrarianconsulting.com/how-to-maximize-a-referral/ Hope that helps. Put it into practice this week and let us know how it goes!