RESQBug.com – Geek Speak to English

Today, my partner Seth wrote a great piece on the merits of early-stage startups raising convertible debt rounds versus traditional preferred stock equity structures.  The piece was inspired by Paul Graham’s recent tweet that said:  “Convertible notes have won. Every investment so far in this YC batch (and there have been a lot) has been done on a convertible note.”

Seth’s piece is a must read in this debate that is only gaining more participants, including a nice follow up from Mark Suster about his thoughts.  I can’t do justice to either Mark’s or Seth’s pieces trying to summarize them, so I strongly encourage you to read them.

I’m going to go out on a limb and break out my old law bar card and bring up one issue that I don’t think is getting enough focus in the debate:  the use of debt fundamentally changes the fiduciary duties of managers and board member of the company.

If a company raises cash via equity, it has a positive balance sheet.  It is solvent (assets are greater than obligations) and the board and executives have fiduciary duties to the shareholders in the efforts to maximize company value.  The shareholders are all the usual suspects – the employees and venture capitalists.  Life is good and normal.

However, if a company is insolvent, the board and company now owe fiduciary duties to the creditors of the company.  By definition, if you raise a convertible debt round, your company is insolvent.  You have cash, but your debt obligations are greater than your assets.  Your creditors include your landlord, anyone you owe money to and folks that you might owe money to you, like former disgruntled employees and founders who have lawyers.

How does this change the paradigm?  To be fair, I have had no personal war stories here, but it’s not hard to construct some weird and scary situations.

Let’s look at the hypothetical:

Assume the company is not a success and fails.  In the case of raising equity, the officers and directors only own a duty to the creditors (landlord, etc.) at such time that cash isn’t large enough to pay their liabilities.  If the company manages it correctly, even on the downside scenario creditors are paid off cleanly.  But sometimes it doesn’t happen this way and there are lawsuits.  When the lawyers get involved, they’ll look to try to establish the time in which the company went insolvent and then try to show that the actions of the board were “bad” during that time.  If the time range is short, it’s hard to make a case against the company.

However, if you raise debt, the insolvency time is forever!  Not just when cash got below the ability to pay liabilities like the equity situation, because the company has never been solvent.

What does this mean?  It means that if your company ends up failing and you can’t pay your creditors, landlords, etc. that their ability for a plaintiff lawyer to judge your actions has increased dramatically.  And don’t forget, if you have any outstanding employment litigation, etc., all of these folks count as creditors as well.

The best part of all of this is that many states impose personal liability on directors for screwing up things while a company was insolvent.  Read this to be:  “some states will allow creditors to sue directors personally for not getting all of their money they are owed.”

Now I don’t want to get too crazy here.  We are talking about early-stage / seed companies and hopefully the situation is clean enough that my doomsday predictions won’t happen, but my bet is that few folks participating in convertible debt rounds are actually thinking about these issues.  And no, I don’t know of any actual cases out there, now.  But I’ve been around this business long enough to know that there is constant “innovation” in the plaintiff’s bar as well.

With thanks to jasonmendelson.com  To see the original article please click here.

Remember, that the only dumb question is the one never asked. If you have any questions or comments, I look forward to them, please email or call me.

Cheers.

Allan

RESQBug.com Technical Services and PRAD Enterprise

“Managing Your Technology for Improved Workplace Performance”

c: 416.464.1508

e: allan@resqbug.com

t: http://twitter.com/resqbug

Visit us on the Web at http://www.resqbug.com

This article is for information purposes only.  It is recommended that individuals consult with an IT professional before acting on any information contained in this article. The opinions stated are those of Allan Waddington and not a reflection of any company he currently works with or has in the past.

“If you think it’s expensive to hire a professional to do the job, wait until you hire an amateur.” -Red Adair

Last week I wrote a blog about Atomic PR and their illegal spamming of folks trying to generate buzz for their clients.  [Note: they’ve since apologized and have agreed to stop doing this and let folks opt out – see the comments area for the CEO’s reaction post].

One of the most interesting things to come out of the post, however, was an article by Mike Melanson on Read Write Web entitled “Does your PR Firm Need a PR Firm?” It’s a really thoughtful piece and had one piece of advice that is critical:

“Remember that allowing a PR firm to run free with your brand is essentially allowing it to have control over how your startup comes off to the rest of the world.”

In other words:  Control your brand.  Always.  It’s your most important asset.  Your brand is made up of your goodwill, reputation and public perception.  It’s hard to have a good brand and it’s very easy to have a lousy one.  It’s also easy to have a good one ruined and very hard to go back the other direction.

One can come up with many examples of companies with good brand equity who have made missteps with products and have lived to fight another day (although you can’t have too many mistakes).  But companies with bad brand equity seem to always be behind the eight ball.  For instance, Microsoft, which allowed Apple to rebrand themselves with the “I’m a Mac” commercial series, can’t buy a break despite Windows 7 being a really good product.  And my bet is that Toyota, which had tremendous brand equity figures a way out of its quagmire as well.

And startups, which have even more fragile brands, hire PR firms at prices that are equivalent to executive salaries and basically hand over the keys to their brand.  And some do the same with their lawyers who interact with their VCs. This also holds true for all service providers that companies hire that deal with the outside world.  All of this can build or damage a startup’s brand.

Even in AtomicPR’s case, they outsourced their brand to a email database called Cision.  They claimed that they don’t spam because they subscribe to a database that gives them contact information of journalist and bloggers in the technology space.   From the word’s of Andy Getsy, CEO of Atomic PR:

“Jason has an active blogger profile on Cision, which lists him as a VC covering venture capital topics. He blogs on tech products and companies from time to time. I suspect that this is partly how his info popped up again”

AtomicPR decided to blindly trust a database that claims it contacts bloggers for inclusion on their lists.  Well, for at least two of them – myself and my partner Brad, we’ve never heard of them or been contacted.  And I’m not a blogger or reporter who “covers” technology, as Cision claims.  I’m just a dude with bad grammar that occasionally writes things that people read.

And while their intent might not have been to spam, that’s what they did.  They outsourced their contact list and then furthered outsourced their brand to junior associates who did not respond to my polite pleas to be taken off the list.  So in the end, AtomicPR’s brand was tarnished by their outsourcing and eventually one person who took issue (me).

Morale of the story:  Be hyper careful about your brand and reputation.  It’s your most important asset.  And it’s a bitch to fix.  If you don’t believe me, Google “AtomicPR” and see what comes up on the first page.

With thanks to jasonmendelson.com .  To see the original article please click here.

Remember, that the only dumb question is the one never asked. If you have any questions or comments, I look forward to them, please email or call me.

Cheers.

Allan

RESQBug.com Technical Services and PRAD Enterprise

“Managing Your Technology for Improved Workplace Performance”

c: 416.464.1508

e: allan@resqbug.com

t: http://twitter.com/resqbug

Visit us on the Web at http://www.resqbug.com

This article is for information purposes only.  It is recommended that individuals consult with an IT professional before acting on any information contained in this article. The opinions stated are those of Allan Waddington and not a reflection of any company he currently works with or has in the past.

“If you think it’s expensive to hire a professional to do the job, wait until you hire an amateur.” -Red Adair