There is a reason why lawyers go through year of school and tests to get to the jobs that they get paid so much to do - law is a complicated beast that takes a special breed to understand all the ins and outs of it. When entrepreneurs and venture capitalists meet at the bartering table to talk over the terms of their agreement, there is often too much or too little negotiation that goes on, so here's some advice I came across that can help startup founders find the "sweet spot" for negotiations.
Matt Bartus, a Silicon Valley-based lawyer who mainly aids startups and VCs, wrote last week on his blog A View from the Valley warning entrepreneurs new to the negotiating table to not damage their relationship with their investors by over-negotiating. According to Bartus, a surplus of startup and legal advice from blogs has clogged the minds of new entrepreneurs who think they need to nit pick over every detail of a term sheet.
"They sometimes feel the need to optimize every individual provision in the term sheet according to the guidelines found online," writes Bartus. "For example, a founder recently expressed his shock to me that a VC wanted an 8% non-cumulative dividend preference on the preferred stock given the historical lows of current interest rates. He didn't realize that dividends in fast growing companies are almost never paid, thus making this provision essentially irrelevant and just a relic of past practice."
Bartus says that while over-negotiating and creating needless tension is a common misstep, it is just as bad to not push back enough and to accept the terms of the agreement without any discussion. When you roll over and take what they give you, you show them that you don't stand up for yourself, damaging both your credibility and the possibility of future investments. To avoid this, he provides a few suggestions for topics that are worth debating with VCs that won't necessarily damage your relationship.
Of the dozens of issues that could arise between VCs and entrepreneurs, Bartus provides a list of six important issues that could be discussed during negotiations, of which three he suggests actually focusing on. These include valuation and dilution, liquidation preference, board of directors and voting provisions, founder vesting, antidilution protection, and finally, exclusivity. By knowing these important issues, you can boost your credibility with the VCs and you ensure that you can get the best results from the term sheets for you, the founder.
This is exactly why hiring a lawyer with startup experience is key to doing things right. Yes, the job of the lawyer is to explain to terms to the entrepreneur so they know what they are signing up for, but mostly, that lawyer is there to take the burden of legal worries off their back. As with any position within your startup, lawyers should be chosen on merit, not based on their reputation to the founders. He recalls an issue he had when representing a VC who was dealing with a lawyer who was the father of the founder with no startup experience and who slowed the whole process down, damaging the relationship between the two parties.
Just remember the real important part of a VC/entrepreneur relationship: building and growing a great product. Hire a great lawyer with startup experience and let them do the grunt legal work so as to not divert your energy and focus from your ideas and your business.
For more legal resources geared at startups, check out our list compiled earlier this year.