Early employees and the art of equity distribution

This article is the fifteenth in the Startup Series on FirstPost’s Tech2 section and first appeared on May the 10th, 2017.

As a professional and an advisor, I have been on both the founder’s and the early employee’s sides of the question of equity for early employees.

In an early stage venture, equity is an idea, and equity distribution an art rather than a hard science, regardless of how much algorithmic formula type advice you find floating on the web or from well-meaning people. At an early stage, both founders and early employees are driven by the vision and the possible value creation from realising that vision. Both sides need preparation and clarity on their best number, their best alternative to a negotiated agreement (BATNA), and their respective exit strategies.

This column draws upon the several startup situations I have been or advised in and covers some essential considerations in such a discussion.

For her part, the founder sets aside a pool of X percent equity, from which early and later-but-crucial employees, and members of advisory board etc., will receive shares. Some of this X is designed to be given away as restricted stock, which is “granted” or “given”, and other as stock options, which must “vest”. The founder should have at least a rough plan for using this pool, with clear ideas on how the cliff, vesting, clawback etc may work. If she is unable to find how other startups are thinking about this, she may be able to get advice from an experienced startup lawyer, whose role in a startup has been discussed in earlier columns in this series. I have experienced at least one situation where creating the pool was an afterthought and created avoidable friction among the co-founders.

Often early employees are advised by well-meaning mentors to demand a percent of equity and not budge. Equally, founders are advised to make a fixed offer and stick to it. Both of these are poor advice. Not only is the making and the accepting of the offer a very personal decision for both sides where formulaic approaches may not work, but negotiation is also normal and an inflexible attitude does not help the situation.

Both stock grant and stock options have different implications for the recipient’s personal taxation and wealth generative situation as well as his “tie-in” to the company. Both may have a cliff, and a lock-in period or vesting schedule. The lock-in is where the founder’s and the early employee’s interests may diverge. The founder wouldn’t want a valuable employee to quit as soon as his options vest, for instance. The potential employee may rightly want to maximise his professional and wealth generative opportunities. The founder should be clear about communicating the terms of such grant or options. The potential employee will have to determine for himself whether the schedule and the lock-in are in line with his vision of his career and life.

It is worthwhile for founders to be transparent about exit avenues being envisioned or developed for the startup, and for early employees to understand those possibilities. In very early stage startups, this can be a fuzzy discussion. But it can be made better by discussing what the company is already doing, what the trajectories are, and what outcomes are feasible. This would enable the potential employee to make up his own mind about whether the offer is appealing enough for the associated risks of accepting a pay cut and the uncertainties that come with a startup.

Who drives the process? Here is some advice specifically for the potential employee. Unless you are an absolutely crucial hire, the founder will get distracted if the negotiation carries on too long. In a start-up, there are always more important things to do than discussing your specific situation ad nauseam, so you have to be the one driving the process. It would be wise to agree on a date to close an agreement. This is just a practical pointer. Sometimes we can get so hung up on the maths that we forget to have the actual conversation.

Finally, if things do not work out, it is worth remembering that walking away is a valid option for both the founder and the potential employee.

Leaving on good terms may earn the startup a friend and there may be a chance to engage again sometime in the future.

Losing and finding your mojo as a founder

This article is the fourteenth in the Startup Series on FirstPost’s Tech2 section and first appeared on April the 21st, 2017.

The journey of a founder can be exhausting. Those in solid founder teams too don’t just have a collective experience; they also have their own, personal experiences of the founding journey. It is not always easy to be in sync with others on the team, or their level of focus or motivation. Decisions are not always easy to make or consensual. Role cleavage is not simple or trivial, and yet without it, things may start to slow down. Given all this, it shouldn’t surprise us to know that founders often lose their mojo.

An entrepreneur I advise has had several such phases through the years. Helping him work through them has been a lesson in human resilience and the purposiveness that drives founders. Crucially, he has come out of each such phase with renewed vigour and focus. That should give hope to other founders in the same situation.

Building a venture is hard work but also strangely exhilarating. Even the tiredness is satisfying because you know you are building your dream and you cannot wait for the morning to come so another day could dawn and you get on with it. Intrinsically rewarding activities can be quite motivating for founders and others.

But what when you start finding all that work fills you with negative feelings instead of the exhilaration you expect? It is time to ask tough questions, to answer them honestly and to take appropriate action.

One of the more business-related, less soul-searching type, questions to ask is about founder-product or founder-market fit, which is more crucial than product-market fit to the success of a startup, especially for first time founders. This fit could come from the founder’s or founders’ core values, or their commitment to a cause, or their deep interest in the product category. Is it a lack of this fit that is dragging on you? If so, what can you do to change that?

It is also worth thinking about the specific things about your work that take the wind out of your sails and the things that energise you. The founder I mentioned earlier found the CEO responsibilities difficult to balance with the creative aspect of the work he wanted to do. There were also other activities that needed developing and executing but neither did he enjoy doing those nor were they the best use of his time or skills. With some introspection, he identified the need to expand his team to bring in skills that he did not have, and the skills that could be hired in and scaled without needing him to be involved in managing. He also realised he had to get really good at planning and time management so he could fulfill both the roles he wanted to.

Crucially, it is worth delving deeper. If the venture does not really excite you as much as you anticipated at the very beginning, why are you still here, working your socks off? Is it your ego at work? Do you feel beholden to commitments made to others? Do you fear failure? Is it a sense of deontology at work? Are you indulging in sunk cost fallacy? Something else? The founder I mentioned earlier has an overarching commitment to practising and defending certain values with vigour. When he has bad days, we talk over the issues separating the operational niggles from the strategic challenges. The exercise helps him not be overwhelmed and instead focus back with renewed vigour on what matters most to him and the startup.

Last but not the least, building a startup venture is like any long term relationship. There will be good days and there will be bad days. Good days are easy, uplifting, energising. However if you cannot hack the bad days, the relationship will feel toxic and draining. But if the bad days are too numerous and frequent, and overwhelm the good days, it may be advisable to consider quitting altogether.

What happens next?

Most people who quit a really bad relationship don’t “fall in love again” without a shed load of hard work either by themselves or in therapy. Founders who quit because the bad overwhelms the good may need some time with themselves to understand how to avoid the same fate the next time around. Knowing what sort of person you are is a good and essential first step.

Leadership and the importance of changing one’s mind

Martin McGuinness, former deputy first minister of Northern Ireland and also former IRA commander, died today. I was shocked to learn he was only 66. Shocked because I have known his name since I was a child growing up in India, and had always thought he was much older.

But he wasn’t. In that short life, McGuinness, as many obituaries are reminding us, went from being “the butcher of Bogside” to “brave statesman”. In other words, he changed his approach to finding an acceptable settlement and peace. And he did it in the glare of the public eye.

Changing one’s mind, one’s opinion, one’s approach is an important trait for good leaders. It shows their ability to take on board new information as well as their ability to admit mistakes and course-correct. Not only are these traits indicators of an open mind, they also enable people around the leader to speak truth to power, for the consequences of silence can be many and unwelcome.

Yet we — the press, the analysts writing about companies, the electorate — find it difficult to forgive anyone, especially a politician, who changes his or her mind on an issue.

Not changing one’s mind is seen as a virtue, immortalised by Mrs Thatcher’s punny soundbite “You turn if you want to; the lady is not for turning”, before Mr Blair even tried his hand on the politics of soundbites.

Even the liberal press finds it hard to resist the chance to take a dig when it discusses a change in the direction of travel, a “u-turn“. See, for instance, the Guardian insist Philip Hammond digs in on his u-turn on national insurance for the self-employed.

This bald criticism creates pressure on leaders to be perfect, in-control, and always-right. It is unfair and wrong. And sad, because it demonstrates the rigidity of the electorate and the press pundits, who expect a leader to remain rigid, regardless of circumstances and possible outcomes of the original course.

An open mind is not cynical; an open mind is sceptical, inquiring and searching.

An open-minded voter or commentator does not distrust a change in stance as a knee-jerk reaction. What s/he does or must do is question the reason for the change, without sarcasm or without expecting an abject apology.

Is the change really just political expediency?

Is the change informed by new information?

Is the change driven by a new understanding of historicity, and how one might have been on the wrong side of history due to any number of reasons?

These questions hold good in both hierarchical societies as well as those who see themselves as more egalitarian.

Further, we need to remember that hindsight really is 20/20, and our understanding and memory of history both short and imperfect.

A friend and I were once discussing the leadership of Nelson Mandela. He is often cited in the same breath as Gandhi, who too had his flaws but steadfastly refused to support or choose violence. Mandela however categorically refused to denounce violence as a weapon in the pursuit of his cause. At the time the UK government under Mrs Thatcher was fighting another nationalist cause, which used terrorism and violence as its tools, namely the IRA. The policy of branding both the IRA and Mandela/ ANC terrorists was consistent with the thinking at the time.

As the President of South Africa, Mandela has been on record speaking in favour of luminaries, such as Colonel Gaddafi , the common cause being Africa and their shared identity as Africans. General Suharto was another one accorded high state honours by Mandela while he was a serving President.

Yet over time, the former “terrorist” Mandela came to be hailed as a hero. This shift took more than just one change of heart or mind.

In the United States, the Democrat Bill Clinton, the “first black president of the United States” did nothing to remove Mandela from the US Terrorism Watch list, while the Republican President George Bush signed a bill to change that in 2008. In the United Kingdom, where then-PM, David Cameron, who had once worked under the Thatcher government as a young whippersnapper, publicly noted in 2006 that the Thatcherite policy to brand the anti-apartheid movement terrorist was wrong. Predictably, the latter lead to many wondering aloud if Cameron was a Conservative at all — making one wonder if an extreme form of white supremacism is an essential quality to one being a Conservative in the UK!

But here is the rub. Post Robben Island, in his writings and speeches, Mandela was brutally honest in admitting his errors of judgment, mistakes, and shortcomings.

In other words, Mandela changed his mind too.

As leadership — and indeed, statesmanship — go, there are lessons in here for us all.

Especially in these times, when it is increasingly in vogue to dig in and refuse to consider the damage hard, inflexible stances can do.

Preferably before it is too late.

Governance is no “Indian wedding”

When India hosted the Commonwealth Games in 2010, the then-sports minister compared the event to an Indian wedding, saying that while preparations go on until the last minute, everything comes together on the day. I am reminded of that as I watch the stories coming out of India since the sudden demonetisation of two major currency notes on November the 8th, 2016.

The reasons why the move was made were unclear, and what one could and could not withdraw or deposit changed often. The Reserve Bank of India (RBI) refused an RTI (right to information) request asking about the reasons, and with its response to another RTI request, managed to create an impression that the RBI had no idea how many Rs 2000 bank notes it had printed. RBI is the Indian analogue of the Bank of England in the UK or the Federal Reserve (“the Fed”) in the US. These are not confidence enhancing moves, for citizens or for investors. To cite economist John Maynard Keynes: “There is no subtler, no surer means of overturning the existing basis of society than to debauch the currency.”

That is not the point of this monograph.

With my governance hat on, it is clear that no regulatory impact assessment was carried out before the demonetisation was announced. After all, the lives of so many publics – citizens, small and big businesses, state owned banks, private and multinational banks – were to be upended. If there had been such an exercise, RBI would have been more prepared rather than the ominous silence to which it treated the citizens before the Governor finally spoke nearly 2.5 weeks after demonetisation. (An alternative possibility, simultaneously more benign and more sinister, is that such an assessment was carried out but summarily ignored in favour of an “Indian wedding” type approach, and reliance on calls to nationalism and patriotism.)

Save for a top-down diktat, where was the country’s preparedness for such a massive transformation?

Does the “leadership” have experience of massive transformations involving both businesses and citizens? The committee to oversee it was announced nearly three weeks after the demonetisation. Other than Chandrababu Naidu, and possibly BCG’s Janmejaya Sinha, it is difficult to feel confident about the execution experience of the rest. Not least because the expensive failures presided over by some on the committee  are not easy to ignore.

What is the objective for this transformation? No, not the ones that changed daily, one increasingly jingoistic than the next! Minimising the black money in circulation? Reducing corruption? Making India a digital, cashless society?

For the sake of this argument, let’s assume a “digital, cashless India” was the goal.

Did anyone ask who will pay for the infrastructural investments needed? The National Payments Council of India’s (NPCI) Unified Payments Interface (UPI) is in the news but there is understandable confusion especially as different banks put out their own branded apps and the government adds to the confusion by launching its own app BHIM. The consumer-side apps are not the only solution needed. The government has asked banks to roll out 1 million POS terminals. No, nobody yet asking who will pay and how it will dent their profitability. Meanwhile, surcharges on the use of card payments have been introduced and withdrawn hastily.

(I am reminded of a friend’s wedding where a last minute Pashmina shawl purchase was made for over Rs 35,000 in 1996 money. Her mother told me, at weddings, expenses aren’t questioned. The “Indian wedding” analogy is still holding.)

Who thought ahead about the hundreds of millions of illiterate users who now not only need smart phones but also the magical ability to work their way through these apps to access and spend their own money? Apps to serve an illiterate user base will need inclusive design thinking, which is absent in the Indian public discourse, as I have written elsewhere.

What is the short and medium term impact on quality of life of citizens? Where is the mitigation for their loss of income or business? I am struggling to find any proof these questions were even asked.

There is no discussion whatsoever of who is benefiting the most at whose cost. My brief monograph on that question has remained on fire since it was published, suggesting I touched a nerve.

There is no evidence that the demonetisation was a considered policy move. There is plenty evidence that this is a case study for poor governance no matter how one looks at it. There was no clear goal, no plan. The leadership has no experience of delivering large transformations. Nobody has done any cost analysis or indeed asked who will pay. Citizens’ docility is assumed.

Governance is joined-up thinking. Absent that, it is just another “Indian wedding”.

[PS: About that Brexit thing ahead of us here in the UK, I am still looking for a culturally apt metaphor. Meanwhile, let’s go with “a giant omnishambles”.]

Pay for a good startup lawyer

This article is the eighth in the Startup Series on FirstPost’s Tech2 section and first appeared on Dec the 23rd, 2016.

I am aware this is controversial advice.

Especially since the last column said: “You pay for some things, you do not pay for some things; you should take your time to understand which is which.”

Especially since we all know free legal templates are available online, or a friend can send you their stuff, and you can take them and tweak them, and you are done. This is where I mention that I have seen startups in India working with documents that state their jurisdiction as England and Wales. They certainly found a template for free! But is it serving them and their purposes?

The ability to make sense of legal documents is not for everybody. The inability to make sense of legal documents could however be quite expensive. The advice of a competent, experienced startup lawyer is something founders would do well to pay for.

Here is why.

A good lawyer will not just write you legalese and lots of documentation but she will build you the scaffold for a future of success and high growth. It is something to plan for now, because let’s face it, when you are blazingly successful, you won’t have time to come back and re-do the paperwork assembled from a random assortment of templates.

One of the first decisions in a startup is about location and structure. A competent lawyer, equipped with adequate tax advice if necessary, will help set up the most optimal structure for future growth and in a location that works for you. “But I am incorporating in India,” you may say. Fair point, but a good lawyer, who understands the competing jurisdictions you could incorporate in, such as Singapore, will explain the options to you, thus helping you think more broadly and globally about your business right from the start. Tax is not the only consideration, of course. A location can often beat your default location on the entrepreneurial ecosystem, the ease of finding and hiring talent including from other countries, and most crucially, the ease of doing business.

With cofounders on board, you will need a watertight shareholding rights agreement everyone agrees to sign. A shareholding rights agreement outlines founder shares of equity, but more importantly, outlines important issues that may come up including cofounders wanting to leave, resolving matters in a going concern, potential conflicts arising and so on. I have lost count of how many founder conflicts could have just been avoided or resolved more easily, had someone thought of writing a sensible shareholding rights agreement up front.

As you build the business, you will need to think about several other contracts e.g. with service providers and partners. Service providers may send you their own contracts on which it would be wise to get legal eyes so you know what you are signing up to and what recourse is available to you if things don’t pan out as expected. Next come employees and their employment contracts, which for startups may be different from those offered by BigCo employers. A major difference, for instance, may be the inclusion of stock options in the employment contract, as well as termination clauses and what happens to unvested or unexercised options in different scenarios. Especially if your startup is a success, this is an important matter to not deal with in an amateurish manner.

Whether your website is transactional or not, it is an essential for business and brings responsibility. A good startup lawyer will help write the right policies governing the use of your website for the visitors, and policies disclosing how you will treat data you may collect on their visit, their interaction and their transactions with your business.

These considerations are common across startups. Some specific startups may need specialist advice.

For instance, if you are creating a startup in a regulated industry, such as FinTech, in which none of the founders has adequate deep experience, the importance of a lawyer with industry specialisation cannot be overstated. A competent lawyer can advise you on compliance and regulatory challenges arising from, say, your business model.

In case, you are creating a social enterprise or a non-profit, correct legal advice would save you much heartache. Can you set up a trading arm? Who can and cannot donate to your organisation? What tax benefits are and are not allowable? How do you ensure adequate transparency, disclosure and compliance?

And of course, if you are creating a startup with a patented product, you will have already dealt with a lawyer specialising in intellectual property, and the advice here would dovetail with your experience.

Ignorance of the law, in no jurisdiction, is an admissible excuse for violations or non-compliance. Ignorance is definitely an expensive indulgence should anyone, from your cofounders to your customers, bring about a lawsuit against your startup.

Be smart.