Startup Toolbox

Jay Parkhill June 30th, 2008

HBS Working Knowledge newsletter has a Q&A with a Harvard professor who examined a specific kind of right of first refusal, where one party has the right to buy an asset at a fixed price, but can also swoop in if the asset is offered to a third party at a lower price.

The article explains that this works against the right holder, because it lets the seller tell the third party “buy at this (high) price or not at all.”

When Rights of First Refusal Are a Bad Deal — HBS Working Knowledge

The best part of the whole article is the answer to the question “why do people use these types of rights if they work out so badly for the right holder?”  The answer:

Contracts are big, complicated things with lots of clauses, some of which get exercised rarely if at all.

Words to live by for sure.

• contracts

Jay Parkhill March 13th, 2008

When your business enters an open-ended relationship with another company, there are two ways to manage the term. First is to provide that the agreement will terminate automatically unless renewed, and second is the opposite- the contract renews automatically unless is it specifically canceled. Each method has its pros and cons. Here are some ideas to consider:

Automatic Termination
All contracts should be periodically reviewed for value to the company. One way to make sure this happens is to provide that the contract must be actively renewed or it is deemed to lapse. The problem here is that it requires memory and attention to manage. I would not recommend this to any but the most detail-oriented of clients who have a great calendar system to track review/renewal dates and a person capable of staying on top of them all.

However, for certain special transactions such as limited-term trials, this can make sense. The risk, of course, is that one forgets to renew, realizes several months later that the company has incorporated someone else’s technology into a product and is then in a poor negotiating position when the time comes to set the general availability pricing.

Automatic Renewal
This is far easier to manage, for obvious reasons, and I recommend it as the default. The trick here is that most automatic renewal contracts allow termination (without cause) only within a set period, such as 60 days prior to the renewal date. Miss the window and you could be stuck with the deal for another year. A calendar of these dates- at least for big-ticket contracts- is still highly recommended.

With automatic renewals, it is also crucial to check the “emergency exits”. What are the grounds for “for cause” termination? Once invoked, can the other side cure the breach? Is that desirable or would it be better just to let everyone walk away?

Good Practices in the Real World
In both cases, the challenge is not get caught by surprise. As a company grows the volume of contracts and renewal dates gets larger as well. Again, I suggest a calendar (or a spreadsheet) of key dates and a person charged with keeping it updated.  In most cases, renewal is a non-issue unless there are problems with the relationship.  An ounce of planning here can avoid a pound of headaches.

• contracts

Jay Parkhill February 14th, 2008

I’ve been reading DC Toedt’s notes on “350 Things I Wish I Knew as a First-Year General Counsel”. He has a number of very good, practical observations about how to be an effective attorney- and not a “Sales Prevention Department”.

One that made me laugh was to remember that “the most useful function of a letter of intent—arguably its only proper function—is to establish that the parties do not intend to enter into a contract at that time.”

In other words, it’s a contract to say that there is no formal contract. The comment is hyperbole, of course- the parties do intend to enter a contract at a future time or they wouldn’t bother with the LOI to begin with, but there is a lot of truth to it at the same time.

I ‘ve definitely seen deals go bad between the LOI and the final agreement. Most LOIs say explicitly that they are non-binding, but having the signed piece of paper can have some kind of placebo effect that gives people undue confidence in the strength of a relationship.

I actually had one client that got a signed LOI, proceeded to hype it for all it was worth and told a bunch of investors that the final agreement was a mere formality. The investors chose to wait for the final agreement before committing, and when the other side backed out it was very embarrassing for everyone. I don’t think the company ever recovered.

So yes, letters of intent are great to have. Just don’t bet the company on one.

• contracts

Jay Parkhill November 10th, 2007

Attorney/entrepreneur D C Toedt posted a thought-provoking piece on his blog called the “Pathclearer” approach to commercial contracts. The premise, as articulated by an attorney at English brewer Scottish & Newcastle, is that commercial agreements and one-time transactions are different beasts, but lawyers erroneously tend to treat them the same.

An M&A transaction, for example, is a one-time occurrence. Details are tremendously important because if something goes wrong the only practical recourse may be litigation.

A commercial agreement, on the other hand, is the start of a relationship. For the most part, both sides will perform happily so long as it benefits them, and poorly or not at all if it doesn’t- i.e. there is no way in the real world to force a relationship to work if one side doesn’t want to be in it.

That being the case, Pathclearer asks if simpler and shorter agreements might work better in many cases. Start with a bare agreement to work together and add in only what is necessary to make the parameters clear.

I love this approach, and for many reasons. The Pathclearer article points to a great example of a relationship bound up with such a complex set of documents that even after both sides agreed the relationship wasn’t working they couldn’t change it because they couldn’t figure out with certainty what the terms of the deal actually were.

Even more to the point, this sort of “blank slate” approach might (we hope) let people think about the issues that are actually important rather than wordsmithing the fine points (such as the example of hours spent by the lawyers trying to define “beer” precisely).

At the same time, would a company (or a lawyer- such as me, perhaps) look hopelessly naive trying to put this idea into practice? I can see the Pathfinder idea working very well in certain situations and causing enormous consternation in others where the experiences of the opposite side lead it to feel that every detail matters (as I have found to be the case with many large organizations).

Rather than a specific plan of action, then, I take the Pathclearer approach to heart as a philosophy. I believed in the idea before I saw the article, or I probably wouldn’t have paid much attention. Still, it is useful to think about the purposes of the Pathclearer concept, and approach commercial agreements with those thoughts in mind:

*Identify the business concerns before reviewing the agreement
*Focus on the key issues. Remove or ignore stuff that doesn’t matter
*Avoid tinkering with the language that isn’t critical
*Reduce and simplify as much as possible

• contracts , lawyering , legal