Parkhill Venture Counsel

Jay Parkhill May 7th, 2008

Todd Vernon is the CEO of Lijit and wrote a post this morning that covers all the bases in angel financings.

http://falseprecision.typepad.com/my_weblog/2008/05/angel-financing.html

I won’t rehash the whole thing, but will comment on a couple of points.

Todd’s analysis of the different types of angel investors is very insightful.  In my ten years of experience advising startups, the family investor class is the most common type, but the companies that are unable to broaden their investor base beyond that seldom succeed in raising further money.

The analogy to burning cash is a good one, though I usually use winning the lottery to make the same point.  Startup entrepreneurs should be aware that at least on some level investment in a brand-new company offers about as much hope of return as lighting cash on fire, or spending $25,000 on lottery tickets.  No one makes that decision lightly.

I mostly agree with Todd about convertible note financings, with a couple of qualifiers.  First, no company should offer convertible notes if it doesn’t intend to convert them.  Todd seems to say that some people might undertake note financings intending to pay them off in cash rather than equity.  That is a terrible strategy and borders on abusive.

Second is that I have done successful note financings.  In almost every case the Note investor(s) are also participants in the equity round and are using the Notes as a genuine bridge so that the company can get some cash while completing the steps to a larger investment.  Notes usually come with warrants or other discounts from the equity round so there can be tension between the Note investors and the equity investors.  Having the same people on both sides of the deal helps immensely to smooth that out.

Good post Todd.  I am going to send a lot of clients to read your summary.

• Financings , Startups

Jay Parkhill May 5th, 2008

There is a lot of talk, of course, about the facts that (i) the U.S. has the highest per-capita (and overall) rate of CO2 emission in the world, and (2) that China is catching up quickly.  This podcast from NPR puts some facts to the story.

NPR previously profiled a family in North Carolina that worked hard to reduce its CO2 output and succeeded in getting itself well below the North Carolina average.  For contrast, NPR then profiled an “upper middle class” family in Beijing with a 3 bedroom apartment, a car and a house in the country that makes no real effort to conserve.

The result?  Excluding air travel, the North Carolina family trying hard to conserve and the Beijing family that doesn’t are basically even on CO2 emissions.  The American family travels more and farther by plane, so factoring that in put the Chinese family in the lead (in the best sense) by a wide margin.

This kind of data, even though anecdotal, is really fascinating.

• Cleantech , energy

Jay Parkhill April 26th, 2008

Legal releases are strange beasts, and philosophically one of my least favorite legal documents. California law requires that specific language be in a release in order to make it completely binding- in other words, if you don’t use the right language to say that the releasing party expressly relinquishes claims based on both currently known and unknown facts, then the releasing party can still make a claim if new facts come to light later. There is a special paragraph that has to appear verbatim in release agreements under California law to ensure that the release is complete.

I really hate “magic words” like this. Courts should look to the intent of the parties in determining whether a release is complete, not whether certain words have been invoked.

That’s actually an aside, though. This post is about a related, but different point. I mentioned the magic words to illustrate how careful attorneys need to be when they prepare releases. If they don’t cover all the potential sources of claims, it is possible for something to sneak back in. A release, then, cites the origin of the dispute and specifically releases any and all claims relating to it.

This morning I read an agreement that takes the idea to a perfectly logical, completely sensible under the circumstances, and yet still amusing conclusion. The language is clipped below, and expressly releases all claims “from the beginning of time”.

Where parties have had a longstanding relationship it makes perfect sense that the release should cover the relationship since the very beginning. No question that this gets there, and it even works regardless of one’s scientific and religious viewpoints. This is like a legal easter egg to me- clever, unexpected and there just for the attentive reader.

• Easter Egg , Take No Chances

Jay Parkhill April 25th, 2008

I am a volunteer with the California Clean Tech Open, a business plan competition for cleantech startups.  We have an event coming up next Thursday, May 1 at SRI in Menlo Park to provide networking opportunities especially for entrepreneurs and research institutions.

The CCTO gets terrific participation from the entrepreneurial and investor communities and is a great place to network and meet people who share an interest in the cleantech space.

Details on next week’s event are here. Come check it out!

• Cleantech , business models

Jay Parkhill April 23rd, 2008

A family vacation and a few important pieces of work that couldn’t be postponed meant that this blog got short shrift last week. Here are a couple of great tidbits from the blogosphere that I was finally able to focus on since getting home.

HBS Working Knowledge - Who Owns Intellectual Property?

Harvard Business School’s Working Knowledge newsletter has a good read on intellectual property in the digital age. It should really be called “How Do You Adapt When You Know Your IP is Going to Be Co-opted?”. Among other points, it notes that the (RED) campaign was expressly designed to be picked up freely by companies. The implication seems to be that it is similar to the GPL concept in software, where the license is free, but users of the software are restricted in what they can do with it downstream. In GPL’s case, the end product must generally also be free. In (RED)’s case proceeds must go to The Global Fund. Whether this is true or not, it is a nice example of an effort to promote viral growth of a brand among businesses as well as consumers.

I note as well that the HBS newsletter has conflicted feeling about the ownership of its own content. Most articles do not allow comments; a few are expressly designed to invite them. This article, appropriately, is one. HBS gets good comments. It should allow them more frequently, even if it meets losing some control over the content it puts out.

E-Commerce Law: Federal Court Upholds YouTube’s Terms of Use

This one is a bit wonkier. The relevant facts are that someone sued YouTube in Washington State even though the Terms of Use on YouTube’s site (you’ve read them, right?) specifically say that actions must be brought in San Mateo County, California. The court said that by using the site, plaintiff Bowen had agreed to the terms, including the choice of law provision.

This is another data point in the ongoing “legal discussion” of the validity of shrinkwrap, clickwrap and web site terms of use provisions. There is no ability to negotiate terms in any of these situations, so there is always some question whether certain provisions over-reach. In this case, the court decided that Bowen had expressly agreed to the terms with knowledge of them, and the San Mateo provision was therefore valid.

I still haven’t actually read the case, so I will reserve judgment on the facts- esp. whether Bowen was *actually* aware of the terms of use, or whether he just clicked “yes” at the appropriate moment.  If the former it’s caveat emptor (visitor?) unquestionably, but if the term was in there and he clicked yes without really reading then this case doesn’t move the line at all reasonableness of non-negotiated click-through terms.

I like that, I should say.  Non-moving lines are extremely helpful to those of us that depend on clickwrap and clickthrough agreements to get products in the market.

• YouTube , contracts

Jay Parkhill April 10th, 2008

This is a smart manifesto of sorts on how to use multiple social media platforms well.  With multiple places to post content (blog, Twitter, Tumblog, etc.) it’s very easy to end up re-listing the same content in multiple spots, but that tends to dilute the individuality of each outlet.

When I started exploring social media in earnest I really wanted everything to tie together, but there is no need.  The offline pieces of my life don’t naturally tie themeselves together offline, so I shouldn’t try to force them together online.  Thanks carpeaqua.

carpeaqua - Your Twitter is not your blog is not your Tumblr is not your FriendFeed

My Tumblog imports all of this blog’s posts as links, so I am breaking one of the rules here.  I should take out that reblog link. This blog works better for the work side of my life and the other one for personal interests: music, cycling and occasionally a dash of yoga, skiing or something else.  I think I’ll keep it that way.

• social media

Jay Parkhill April 9th, 2008

I recently started following the blog of John Adams, the US’s second President.  He has good things to say, nothwithstanding that he has been dead for 182 years.  Some of his expressions seem a litle colloquial, leading me to suspect some conemporary help in getting his thoughts out (notice I didn’ say ghost writer).

Still this one on recessions is spot-on.  Recessions are historical labels.  Let’s not worry about whether we are entering the first of two consecutive quarters of negative growth (or in non-economist terms, "decline").  Let’s think about policies that will make the economy strong.

What would I say about a Recession? - JohnAdamsUncensored

• Uncategorized

Jay Parkhill April 8th, 2008

I heard this phrase twice recently in completely different contexts, and I have been rolling it around in my head ever since.

The first time was in a yoga class. Yoga, for those who don’t practice it, can be described as a kind of moving meditation. In the process of breathing through the poses, one can learn to clear one’s mind. It’s really hard to do, though. I usually manage it for about 15 seconds at a time. Maybe that’s why this phrase stuck with me:

It never gets easier. The spaces [between thoughts] just get longer.

I then saw almost the same phrase in the chapter heading of coach Joe Friel’s book The Cyclist’s Training Bible. The quote there was from Greg Lemond, and read:

It [training] never gets easier. You just get faster.

So what does this mean? To me it means not just that many worthwhile things take a lot of effort; they require constant effort. You can never get to cruising speed and then just coast- you have to keep putting in the work.

This definitely applies to business as well. I think businesses hit spots where they can glide a little- when a network effect kicks in for a web company it doesn’t have to worry so much that month about generating traffic (and can focus on serving it)- but the smart ones know they need to start pedaling again pretty quick or they’ll end up getting dropped.

• Mantras

Jay Parkhill April 7th, 2008

The Peter Principle is the HR maxim that any person will be promoted to the level of his incompetence- s/he will keep moving up the ladder until s/he no longer has the ability to get the job done. It is rather cynical, especially the corollary that “work is accomplished by those employees who have not yet reached their level of incompetence”.

I work for myself, so the rule doesn’t apply directly to me since there is no ladder for me to move up (or down). Still, I feel like I struggle with a kind of Peter Principle in life all the time. Bijan Sabet posted a note recently about hitting his personal peak of concurrent demands on his attention. I lamented in a comment that there is no great name for this phenomenon of “everything happens all at once”.

The Peter Principle of Time Management is not the whole concurrent-peak-time demand problem, but it is a part of it. My theory here is that we fill our time with obligations until we are no longer able to meet them all effectively. We tend to become aware of the fact that we are overcommitted when all of the people we have promised things to come looking for them all at once.

I run my own business, which demands a huge amount of time and energy. I am also a husband, parent, son and friend. I volunteer time to my kids’ schools and one or two other nonprofit resources. When not completely engaged by any of those items, I practice yoga, ride bicycles and occasionally race them. And I write a bunch of it down here and on my Tumblog. That’s a lot of stuff and I have realized that if I want to be even nominally competent at each of them I need to avoid the temptation to take on more.

I have been reading up on peak energy issues lately, and an analogy to the electrical power grid seems apt. With electricity, power plant construction is driven by peak power demands. I can’t add more capacity, so all I can do is calculate the likely peak load from each activity/relationship I commit to and realize that it is probably going to take capacity away from something else.

Or in Peter terms, commit to only the number of obligations that will permit me to accomplish each of them competently.

• Mantras , time management

Jay Parkhill April 7th, 2008

Exactly when people started saying “enterprise” instead of “large business” is pretty good material for light banter. I don’t know the answer, though I have discovered an almost perfect inverse correlation between a company’s use of the word enterprise to describe itself and my ability to understand what the company does: if they say “enterprise” I am basically guaranteed to have no idea what the company’s product does.

The conversations that start joking about enterprises usually segue directly into wondering why the same businesses talk about “solutions”. Their websites have sections entitled “Products” and “Solutions”. One might think that these could be the same section- aren’t the products supposed to be the solutions? It doesn’t work that way, though.

I think the reason I never understand what the companies do is that they never state the “Problem”. They assume that visitors hit their site already knowing what they are looking for. If most visitors are not like me, then they are probably right. I always find myself wishing for a frame of reference, though.

That’s why I was so happy when someone pointed me to Timebridge. It makes a product that connects calendars across application platforms. I don’t use Outlook or Google Calendar, the two products it work with currently, so I haven’t tried it out. When I saw the site, though, I found something really great:

No Solutions. There is the product and there is “The Mess”. Thanks, Timebridge, for telling me why I might be interested in your product.

Bonus points for having live demos of the product in place of management headshots on the Management Team page.  That’s a smart way to make the product real.

• marketing