How to handle investors on your cap table

Over the years, in addition to running our own businesses, we have also invested in about 24-25 startups where Shao Ning & I play different roles. Board member, Advisor, Angel Investor, Syndicate Lead Investor, Joint Venture Investor and even chairman type investor. Two main factors are at play - the shareholding we own and the role we play for the startup.

We have also realized that different founders handle non full time shareholders very differently and the standards vary. Below are some guidelines on what we would think founders should consider and do for the various types of shareholders.  

1) Key Mindset

The key mindset is that your shareholders are your supporters. Get to know each of their motivations for investing and also their strengths in terms of how they help you. Then make full use of it. Remember that most people prefer to be told what is happening and investors do expect startups to face lots of problems. So don't avoid updating bad stuff or problems. 

Of course, be prepared for all types of feedback and help. Some will be good, some not so good. But remember you are the boss. So don't be afraid to ignore advice given but of course, you better hopefully be right to ignore the advice.

2) Compliance with all legal requirements

Management should always be clear on the company constitution and shareholder agreement terms. Should also ensure that all shareholder rights are complied with. Eg. if a mgmt decision requires a Board or Shareholder approval, it should be sought. An email explaining the reason for the action and also giving enough time to ask questions and approve. It is also helpful if the board has already agreed to the decision. 

The other key factor here is information rights. AGMs, audited annual numbers are usually bare requirements which all shareholders should be privy to. Some shareholder agreements will require more regular updates and some state that board minutes must be shared. Make sure these are all done.

2) Regular updates (even if not legally required)

Depending on the role and shareholding, it is best practice to keep your shareholders updated on how the business is doing. It also depends on the understanding you have with each shareholder. By and large....

a) Monthly updates with commentary & P&L, Cash for all board members and lead investors in current round and maybe even past round lead. Likewise JV partners for sure will want this. Usually do not need to update individual smaller shareholders (own <5%) but you may want to send this update to shareholders who have demonstrated value to you via experience or contacts.

b) annual shareholder meetings and report. Does not hurt to write a longer commentary to summarise year and plans for next year and circulate to all shareholders. All shareholders will appreciate this rather than just a AGM and audited accounts. You can even host a simple gathering for shareholders annually.

3) Corporate Actions 

This is trickier to do well. Founders must remember you wear 2 hats. One as mgmt and board director, another as shareholder. There are many types of corporate actions that i have seen being handled less than ideally. The key problem is usually lack of information and notice given. Then some smaller shareholders may feel being pressured or rushed or worse still being taken advantage of!

a) Share transfers/sale to 3rd party. 

Once the company is notified of this, it should immediately act according to shareholder agreement and notify all shareholders of price and quantity if there are ROFR clauses.  Also check if tag alongs will be triggered, if so ssulders should be notified not just about ROFR and prices, identity of buyer and seller but also reminded of their rights.

As a founder, you usually are not allowed to sell or tag, and your role is more to facilitate. It is usually helpful to state reason for sale and identity and intentions of the buyer.

Eg. founder parents selling part of stake to new or existing shareholder because they were earliest money and now need to retire.

b) New round of investment

Board will usually discuss and approve this activity, so major shareholders will know about this. Smaller shareholders should also be informed once a term sheet is signed. They should be aware of terms and also of their rights. Usually is pro-rata. It is best practice to share the terms and then ask each shareholder to reply if they intend to keep pro-rata.

The trickier part is here is how to handle terms which require old investors losing board seat and new share class having much superior rights to old share classes. You need legal advice for sure but you should also keep your old investors updated on all the "asks" by the potential investor. Some key areas of contention usually revolve around those where founders/mgmt are not so affected but older investors are disadvantaged.

- board seats & composition

- Redemption clauses for new investor 

- Liquidity Preferences, Coupons which only accrue to new investor

- Any special rights  (ROFR, Drag, even information) that accrue only to new investor

Be sensitive and never try to make your old investor feel you are so eager to do the deal and happy to ignore their rights. This is not only bad move (as they can probably block the deal) but also quite ungrateful to not consider your oldest supporters. 

c) Sale of company

This is a happy event. Again once term sheet signed, all shareholders must be notified of price, buyer and intentions and timeline projected. Keep shareholders updated on the sale process. Eg. timelines, due dilligence etc. If you do close the sale, do remember to call each of them to thank them for support or hold a thank you session for everyone.

d) Closing down of company

Reverse of above point but it happens. Doing this well is also a mark of a good founder. If you have been updating shareholders, it will not come as a surprise. Share thinking, timeline and be open to shareholders suggesting ways to keep things afloat. Sometimes, a hail mary may appear and a shareholder finds a way to get more money in or even to sell the company. 

This is a very tough thing to do. I find most founder run away and avoid shareholders. This kind of behavior is doubly wrong. Investors understand startups fail, so handle this episode well and depending on why startup failed, investors may still continue to support you. And plan finances properly so that the company can be closed down without debt. This is only ethical. It is morally wrong to continue to incur large costs when it is clear you are closing down.

4) Entanglement with govt, lawsuit

If the company has broken a law or is being sued, there is a responsibility to notify your board and act to remedy right away if it is with govt. Commercial lawsuits are a bit different and more nuanced as it it depends on whether the suit was frivolous or has merit.

5) What about confidentiality? 

I know some startups are worried that their investors have similar investments or worse still are not ethical and share the data they send to competitors. This is very possible as there are all sorts of investors out there. There are a few ways to mitigate this.

a) Shareholders agreement should have confidentiality clause. So there is legal recourse if need be.

b) Send what they need to know. Its usually very top level financials and general commentary. You dont have to give any client names, contract sums or marketing/sales funnel details. 

c) Don't take money from possible competitors and don't take money from VC who support multiple startups in same space and geography.

If you really have doubts about a shareholder, just revert back whatever legally required and dont share more. 

I hope the above is useful to founders and management. There is a lot that can be improved in the area of communications and expectation setting. If you find this useful and want to join a community of serious angel investors and get good dealflow, come register at http://www.angelcentral.co/membershipdetails

Ethics while running a business

My topic today is about Ethics and the various experiences I have witnessed that illustrates these points. I believe as entrepreneurs, we will encounter many circumstances which test us and it is up to us how we react. How we react will determine what kind of a person we are. I am a firm believer in living a good and moral life and in the innate goodness of man. When I die, all I achieve is worth nothing as I cannot bring it along. So i would want to die knowing i did right at best as I can.

For me, it also helps tremendously that my cofounder and life partner is even more clear on ethics than I am. So with us reinforcing each other, it helps a lot.

1) Overpayment. You will be surprised that some clients procurement will make mistakes and overpay us for an invoice. Figure can range from hundreds to $10K! Our policy is to always notify the client nicely and pay back.

2) Honoring our mistakes. You or your staff will sometimes make mistakes too and basically misquote to the client. My policy is to always come clean and admit it is a misquote. And we will try our best to either honor that misquote or at least give a sweetener to show that we know we made a boo boo.

I have been on the other receiving end of this before. I had an association who owed us money. And the Executive Director had the cheek to call us down and say that his manager (who had left) signed the contract and used the services without his knowledge. I told him that even if this was true, he still owed us the money (about $4000) since i had a manager's signature in black and white. This guy actually threatened me (back then 27-28 year old) and told me that he will not pay. In fact, if we do not back off, he will complain about us to his university contacts who were my partners.

I felt so bad at that time because i could not believe i was being threatened because his organization made a mistake. (and that is assuming he was not lying). Managed to resolve this by basically giving him face and accepting half payment and the other half in contra. And i think he agreed simply because i played on his ego. In front of his staff, i counterproposed and told him we are already giving in and he should not bully a startup. But i left the room with 2 thoughts.

First, i wrote off that man and never thought well of him subsequently. Anyone who does not honor their word and who tries to bully because they can does not deserve any respect from anyone.

Second, I resolved to never do that to another person. We will honor our word even if it costs us.

3) Conspiring to cheat. Early in my business, i had a potential acquirer who was running a decent sized executive search firm. Founder claimed to be a Goldman Sachs MD. At that time naive me thought that an MD was a big shot. Now i know it is just a middle ranking position in IB. Pays about US$600K a year all in. Its the partners that earn the real money. Anyway, this guy pretended to be all interested in investing in us and naive us believed him as he had a fancy car and office.

After a bit of discussion, this guy called us and said they will invest. My partner and i were so happy we bought an $800 spa espirit spa package as a reward. Next thing we knew, they wanted our jobportal functional specs and made copies of it. After that, we never heard from them and they later when chased, said change of mind. Couple of months later, they launched a job portal. Of course it died a few years later. It was run by his mistress.

This experience taught me to be a lot more careful about people. Luckily my line depends on execution and day to day effort. Not some incredible piece of IP. It also taught me that i will never want to do that to another person.

Nowadays i take extra care to always declare conflict of interests and to always make sure i am transparent in my dealings. Many times i have had people come to me for investments who are in my job portal or related space. I always take care to tell them not to reveal anything that is proprietary and to remind them that i run a job portal which may be a competitor to them.

4) Dishonest to investors/cofounders. I think trust between cofounders is most important. Even if intentions are the best, there are already sure to be areas of conflict over roles, compensation, alignment of interests etc. But it gets worse if cofounders consciously do something that affects the basic trust. For me, if someone is willing to work with me and embark on a major risk like a new business, then he or she deserves my trust and faith unless proven otherwise. And i will feel very betrayed if my cofounder does anything to betray that trust. In fact, i think if it happens, i will probably start to work out how to disengage the offending co-founder already.

For investors, i have heard and witnessed startups who are really selfish. They signed on an  investor for a venture which requires them to work full time on it and by extension that means to put in their full 110% effort like any startup. However, with a bit of setback or perhaps out of greed, they start to create a business plan for another new venture and basically try to raise funds for that. I don't know if it is naivety or stupidity but which VC will fund a founder that is unable to focus and who is perfectly willing to screw their original set of investors? And word does get around in our industry. SG is really small.

5) Sweat the small stuff. It is easy to cheat your own company. All you need to do is to claim entertainment expenses that aren't strictly entertainment, or pay your personal mobile, petrol bills via the company. My stand is that this is fine if you own 100% of it since technically that is your own money. But if you have external investors or other cofounders who are not aware of this, then it is their money you are stealing. It is better for cofounder dynamics to be transparent and just work it in?

From investor angle, most investors will not sweat the small stuff and will not begrudge you some extra claims that are actually for personal use.  We rely on your personal integrity and how you view things. Strictly speaking, the shareholder agreement will say that your annual compensation cannot exceed $XXK without their agreement and so you can declare such items to be part of your legal compensation. So do that.

6) Sales people who lie. Wow! I have seen so many examples of this. Basically it is quite common to hire sales staff who seem to view ethics as something that one can be creative about. You can create the best commission systems to tie reward to actual performance but there will be sales staff who will spend time and effort to game the system. And this includes outright conspiring with the client if they have a good enough relationship.

My philosophy in office is to accept no unethical behavior. If we can prove that you tried to cheat us, we will terminate on the spot without recourse and i will be happy to tell all subsequent background checking employers the reason for termination. I dont care how much money you bring in for the company. I strongly suggest readers do the same, life is too short to have to hang around cheaters.

I am sure you will encounter many more experiences that will test you. So try to do the right thing!