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Anthony Nassar, Founder & Principal, Venture Momentum, Inc.
 
  In This Issue
Note from Anthony
Featured Interview – IP Issues with Offshoring
Featured Article – What VC Board Members Want to Know
Nexit Mobile Insights – An Interesting Look at the Mobile Market
About Venture Momentum
  
January 12, 2005

Vol.2, Issue 1

Published on the second Wednesday of every month

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  Note from Anthony

Happy New Year Reader!

With almost half a month into the New Year, you’ve probably already started tackling many of your 2005 goals. Perhaps you’ve even checked a few off by now.

This is the time of year to reflect on your achievements and challenges of 2004, and map out the future direction of your venture. A 12-month budget is a great starting point. It makes you think hard about many of the metrics that drive the success of your business. So if you don’t have your 2005 budget in place yet, make it a top priority on your to-do list for the next two weeks.

And planning alone won’t get you there. You’ll also need to closely monitor actual performance and compare it against your plan so you can make course corrections when necessary. To help you do that, I asked four venture capitalists to tell us what type of financial information they like their portfolio companies to report to their Board of Directors. This is the subject of today’s article. I’m sure you’ll find it very interesting.

Once you complete a productive planning process with your team, and implement a methodology to monitor actual performance, you’ll hopefully be able to navigate your business forward using a GPS rather than your rear view mirror.

To YOUR Venture’s success,

Anthony Nassar
Founder & Principal
Venture Momentum, Inc.
415-897-0195
http://www.venturemomentum.com

 
  Featured Interview – IP Issues with Offshoring
 

Paul A. Leboffe

Are you offshoring your product development or thinking about doing so?

Today I ask Paul Leboffe, Partner with the law firm Davis Wright Tremaine LLP, to address important intellectual property issues arising when products are developed offshore.

Anthony: First, would you clarify the distinction between Outsourcing and Offshoring?

Paul: While these two terms are sometimes used interchangeably, “outsourcing” typically refers to sending projects to a company in a foreign country. For example, XYZ, an enterprise software company, might contract with a company in India to develop an application for one of its software programs. In contrast, “offshoring” typically refers to opening a branch office in a foreign country and hiring your own employees there. Microsoft, Dell and a host of other large technology companies have done a significant amount of offshoring, but so have small, emerging growth companies. Depending on the size of the project, and a company’s growth strategy, offshoring can be a great strategic alternative for small companies.

For the balance of my comments, I will generally be talking about outsourcing, but most of the legal issues relevant to outsourcing also apply to offshoring. In either case, it is very important to talk with professionals who have been through the process before.

Anthony: What are the main legal concerns with outsourcing?

Paul: There is a range of legal issues that arise with outsourcing, and you should consult with an attorney who has worked with clients engaged in outsourcing as part of your analysis in determining whether outsourcing is right for your company. If I had to briefly summarize some key legal issues related to outsourcing, I would focus on what I call the “Three P’s” – Privacy, Piracy and Property. I can explain each of these briefly:

Privacy rights generally refer to an individual’s right to control the distribution of his or her personal information. Privacy has long been an important issue in the US, but it has become even more important with the use of the Internet and the ability to access and transfer personal data. Consequently, the US has adopted more stringent legislation to protect individual privacy. For example, the Health Insurance Portability and Accountability Act (HIPAA) requires special treatment of patient medical records. This includes the treatment of payment and process information – something that has been outsourced in recent years.

Insofar as privacy is important in the US, it is even more important in Europe, and European laws are therefore more restrictive than those in the US. The European Union Data Protection Act of 1998 is the best example of such a law, and it has caused some companies to incur substantial time and expense with compliance. Accordingly, if you are going to outsource or offshore to Europe, you will want to be very familiar with local laws.

In contrast, privacy rights in Asia – where there is no personal “expectation of privacy” – have historically been more relaxed than those in the US and Europe. But that does not mean that you can run roughshod over the rights of individuals in those countries, especially if the information processing that you are outsourcing will include data of US or European citizens.

While privacy is an important individual issue, piracy is an important company issue. Piracy refers to the misappropriation (unauthorized use) of proprietary products, such as software. To be certain, piracy is an issue all over the world. Anyone who followed the Napster case and the resulting fallout can see that. Some countries, however, have been more successful than others in limiting piracy within their borders. Obviously, a company cannot stop piracy, but, if piracy is an important consideration, a company can elect to outsource to countries where laws against piracy are more strictly enforced.

This brings us to the issue of property, meaning “intellectual property” that is the lifeblood of any technology company. The US and Europe have well-developed laws regarding patents, trademarks and copyrights, and almost all of the European countries are members of key treaties, such as the Berne Convention and the Madrid Protocol, which help to standardize the level of protection afforded to copyrights and trademarks.

In contrast to the laws in the US and Europe, the enforcement of laws protecting copyrights and trademarks in Asian countries, on the other hand, is relatively new and continues to develop. Accordingly, a substantial amount of commercial software developed in these countries remains subject to piracy. It was estimated that in 2003, more than 90% of all commercial software was subject to piracy in certain regions. Some companies consider this a big problem, whereas other companies believe that there is no local “resale” market for software in those regions, so they do not believe that the threat of piracy is a decisive issue.

Regardless of whether you are outsourcing to a company in Europe, Asia or elsewhere, it is important to know the local laws as well as local customs – meaning whether the laws are, as a practical matter, enforceable. Even if there are laws on the books, they are of little value to you if they are either unenforceable, there is no “implementing legislation” in the local country, or it will take years and years to seek justice. These might be key factors in your decision whether or not to outsource certain projects.

Anthony: Are there certain types of activities that are safe to outsource, and why?

Paul: As a company decides whether or not to outsource, it should also consider which projects it can outsource, and which projects it should complete itself. Conventional wisdom dictates that any mission critical projects, core technology or key programming should be done internally rather than be outsourced. Due to the variable enforceability of foreign laws, and the cost of enforcement, startup and emerging growth companies should consider outsourcing only non-core technologies, such as customer support, network monitoring, and application software maintenance. Once a company grows to the point where it can bear the costs of litigation, then it might consider offshoring critical technologies. But until that point in a company’s development, it generally remains risky.

Anthony: How does the US legal landscape affect outsourcing?

Paul: Outsourcing and offshoring have not been warmly embraced by much of the US for fear of losing American jobs to foreign countries. When most Americans think of outsourcing and offshoring, they think of the American automobile industry and how thousands of US jobs have been sent overseas. Additionally, technology workers are concerned about skilled technology jobs being lost to foreign countries.

Whether these fears are based in fact or fiction, they are fueling a substantial amount of legislation designed to keep more jobs in the US. As of mid-2004, there were more than 180 proposed pieces of legislation at the state level, and more than a dozen pieces of federal legislation targeted at limiting American companies’ ability to send work to – or open offices in – foreign countries. Most of this legislation will not find its way into law, but companies considering outsourcing must be aware of such legislation and its effect on their business. Once again, this is a good reason to include an attorney in your planning process as you evaluate offshoring opportunities.

Anthony: Can you describe scenarios leading to the loss of Intellectual Property and/or Trade Secret information?

Paul: The piracy of intellectual property, which was discussed above, is typically an external threat: someone outside of your company misappropriates your technology without paying you for it. But companies considering whether to outsource projects must be sensitive to internal threats as well. Historically, these threats have taken the form of disclosure by former employees or extortion by the outsourcing company’s employees. Recently, an Ohio company outsourced the processing of medical records information to a company overseas. Two disgruntled employees from the outsourcing company threatened to release the records on the Internet unless they were paid a sum of money. This type of extortion puts a company in a real bind because the company can not only lose key intellectual property, but it can, in the case of medical records, be subject to civil and criminal penalties.

Anthony: Can you highlight some of the most important intellectual property issues in the context of outsourcing?

Paul: There are too many issues to cover here, and so I must recommend that a company seek the assistance of US counsel that can work with local counsel in the foreign jurisdiction where the company is considering outsourcing. That said, it is clearly important to include an attorney early in the process because there are some key differences between US and foreign laws that might affect a company’s ability to protect its intellectual property. Take patent law as an example. The US follows the “First to Invent” rule, whereby you can show patentable information in public but you still have one year after exposing such information before you must file your patent. Europe, on the other hand, generally follows the “First to File Rule,” which means that the first person to file the patent owns the patent rights. That means that, once you expose your patentable information, then anyone can patent it if they file before you. While some countries have exceptions for inadvertent disclosure, they remain the exception rather than the rule. What is an example of the practical import of this? You might want to think twice about flying to Europe to show your patentable intellectual property to a venture capital firm there.

Anthony: Would you share some of your favorite legal pointers for outsourcing?

Paul: If I only had one minute with CEOs to give them some key guidelines to consider in making their outsourcing decisions, I would share the following pointers:

  • Get an attorney involved in the process early.
  • Do not outsource mission critical projects.
  • Be particularly careful with personal information, medical information and information regarding security (e.g., encryption software), as these are all strictly protected by US laws.
  • Structure your contracts with outsourcing companies to shift as much liability to them as possible for breach of privacy, security and other laws.
  • Consider the maturity and the sophistication of the outsourcing country’s legal system.
  • Ensure that the outsourcing company’s employees are subject to a Confidentiality Agreement and a Non-Compete Agreement to the extent permitted by law.
  • Conduct detailed background checks of the outsourcing company – and its employees – to the fullest extent possible (there are typically local companies that will do this for you).

Bio

Paul Leboffe is a Partner in the San Francisco Office of the law firm Davis Wright Tremaine LLP.

Representative Experience
Strategic advisor and outside general counsel to emerging growth technology companies.

Corporate and finance law, including federal and state securities, intellectual property licensing, mergers and acquisitions, and general business transactions for technology companies.

Strategic advice regarding business plan development and seeking of venture capital and angel funding.

Intellectual property licensing and protection, primarily for companies in the following sectors: computer software and/or hardware, electronic design automation, and eCommerce/Internet.

Strategic advice regarding capital structure, stock issuance – including stock option plans – and private equity financings, including convertible securities and secured transactions.

Corporate mergers and acquisitions, including stock and asset transactions and recapitalizations.

Formation of various entities, including Limited Partnerships, Limited Liability Companies, S Corporations and C Corporations for technology companies and investors.

Other commercial agreements, such as non-disclosure agreements, independent contractor agreements, separation and release agreements, and commercial leases.

Prior Experience
Partner, White & Lee LLP, a Silicon Valley boutique serving technology clients

Executive Vice President & General Counsel, Sports Universe, Inc., an eCommerce company

Associate, Sonnenschein Nath & Rosenthal

Publications and Presentations
Speaker at seminars on venture capital transactions, corporate governance, business acquisitions and intellectual property issues.

Memberships and Activities
California State Bar Association

MIT/Stanford Venture Lab Member

Software Development Forum Member (former Executive Council Member)

Education
J.D., Syracuse University College of Law

Visiting Scholar, Hastings College of the Law

B.S., Cornell University

 
  Featured Article – What VC Board Members Want to Know

This article was made possible thanks to the contribution of the following 4 venture capitalists:

I asked these 4 experts for a description of the reports they want to see their portfolio companies present to the Board of Directors. I would like to thank Bill, Todd, Michel and Giacomo greatly for taking the time to respond to my inquiry and make this very valuable information available to readers of Propel Your Venture. Here’s a compilation of their replies:

One expert noted: “This is an area of surprising inconsistency in the entrepreneur and venture community, even among the most seasoned veterans. Part of the reason is that no one template fits a broad range of early stage companies. Each company has different issues that are critical, and the reporting/communication system needs to reflect that.”

Another expert stressed the importance of identifying and reporting on the 2 - 4 key metrics that drive the business model. He felt that these key metrics provide more valuable insights into managing and growing the business than standard financial statements, which are nonetheless needed to ensure that the company is properly managed.

Summary Performance Report

One contributor stated that he likes to first see “a one page plan vs. actual report that covers the company's key financial metrics for the month, for the quarter to date, and for the year to date. The left column should include a simplified P&L, plus other key metrics, such as Capital Expenditures, Cash Burn, Cash Balance and Headcount. Other items might include Bookings, New Customers, Renewals, Receivables, Cash Runway, or others, depending on what the company and investors consider to be key performance metrics.”

Financial Statements & Budget

For one contributor it was important that standard financial statements - including a monthly and quarterly P&L, Balance Sheet and Cash Flow statement – should generally be on one page in the Appendix and done in the same level of detail that management uses for its own purposes. The monthly operating plan (budget) for the year, also placed in the Appendix on one page, should include the key financial metrics in the Summary Performance Report. If the operating plan is amended mid-year, the date of the amendment should be clearly noted. The Board may or may not want to keep the original plan behind the revised plan in the Appendix.

Another contributor’s firm asks for the following:

  • Income Statement

    Budget vs. actual for month and year to date as well as forecast for the year vs. budget. The level of details includes:
     

    1. Revenue, cost of goods sold, and margins (in $ and %) by whatever revenue type that applies to the business. So if it’s software, it would be license, maintenance & support, and professional services.
    2. Operating expenses by department
    3. A separate expense comparison of budget vs. actual for the month and year to date by major expense line item/account
       
  • Balance Sheet: Budget vs. actual
     
  • Statement of Cash Flows: Budget vs. actual for month and year to date as well as forecast for the year vs. budget.

One expert mentioned that for companies with more than 4 quarters of revenues, he likes to see actual vs. prior year for comparable periods. He added that he is generally more interested in looking at trends, and comparisons to the operating plan and the prior year, than in getting very detailed about the line items in the financial statements. This of course unless things go wrong, in which case he will scrutinize the line items.

As technology businesses often change assumptions in any one year, it is important not to lose sight of the budget. Adjustments to the assumptions are made in the forecast while the budget figures are frozen during the budgetary period.

Sales Pipeline

One expert said that the sales pipeline is “probably the most important and most poorly done report in most Board packages. At the top of the pipeline should be accounts closed in the last month. The next tier should be accounts projected to close in the next 90 days, with subtotals for each month. The next tier should be qualified accounts expected to close beyond 90 days but within the year. The biggest problem with these reports is that there is no accountability from month to month -- if accounts slip or are lost, rarely is this clear on the report. Generally, Board members need to pull out last month's packet to try to compare. Depending on the complexity of the sales process, you might be able to reconcile changes in the pipeline on the report (a column labeled Change). Or you can simply put the previous month's pipeline in the Appendix.”

A different approach, suggested by another source, is to look at 2 sales pipeline formats: a graphic format in the form of a funnel, and a detailed format showing size of deals, type of revenues, timing, revenue recognition, etc. In the funnel representation, there are 3 sections. Each section includes potential deals with a range of deal close probabilities. For example, 10% to 49% for the top part, 50% to 79% for the section below, and over 80% for the lowest portion. This approach provides a good indication of the density of the population in the top part of the funnel. By observing the evolution of the funnel over time, management and the board can track the deals that are lost and those that weren’t included in the funnel. The funnel method does not offer any timing information other than the fact that the higher the probability, the more imminent the deal will be. For example, a probability of 90% would correspond to a potential deal that is expected to materialize in 30 to 60 days.

Another expert suggested one more alternative, and that's to provide named accounts for the next 2 - 3 quarters, depending on the sales cycle. The pipeline would include the estimated deal size, its breakdown by various components (i.e. license, maintenance, and professional services for a software company), the closing probability, and the estimated date of close.

Finally, one source said that he likes to see the pipeline "windowed" by the expected closing time frames: 30 days, 60 days, 90 days, 120+ days. He added that it’s also useful to see the pipeline growth over the prior six months and measure how much was added to it each month. He stressed the importance of graphs which can be more telling than numbers.

Key Objectives

One contributor stressed the importance of reporting on key objectives: “This is probably the most important report, which summarizes key objectives and accomplishments on a monthly basis. Each year, as part of the development of the operating plan, there should be a list of key objectives and deadlines. Then each month there should be a fleshed out review of accomplishments vs. objectives for the last 30 days, and objectives and expectations for the next 60 days. Then the key objectives for the year should be included in the Appendix, right behind the operating plan. And, if the Board desires, the key objectives and accomplishments from the prior month can also be included in the Appendix.”

Other Information

Additional information might include the following:

  • An executive summary of key events such as sales/partnerships, key hires, management changes, and product releases;
  • A detailed staffing plan;
  • A headcount chart;
  • A product development report;
  • Marketing activities;
  • A detailed accounts receivable and accounts payable aging;
  • A proposed option grants schedule that details name, title, reason for grant, number of options proposed, existing options if any, total cumulative options after the grant, percent of fully diluted shares, and whether the aggregate shares fall within the company board of directors pre-approved option range for the position under consideration;
  • Previous board minutes.

As one contributor puts it, the “Monthly Board Report should be a consistent 5 or 6 core slides, and 5 or 6 appendix slides, and should be produced on a consistent basis whether or not there is a Board meeting that month.” He adds, “This is, of course, much easier said than done. The main problem for most teams is that the world changes, and so plans change, and maintaining consistency is hard. But it makes life much easier for management and for boards if there are fewer, consistent reports rather than a new batch of creative slides each board meeting.”

In conclusion, while there are some variations between the responses of the 4 VCs, there is an obvious consistency amongst them in the type of information needed to properly monitor a business at the executive and board levels. I hope this article offers you some ideas on the kind of monthly reporting you can consider for your venture depending on its stage of development.

 
  Nexit Mobile Insights – An Interesting Look at the Mobile Market

If you’re interested in what’s happening with the mobile industry, take a few moments to read the December 2004 issue of Nexit Mobile Insights. It’s available in PDF at the Nexit Ventures website.

 
  About Venture Momentum

At Venture Momentum, Inc., we work with start-up entrepreneurs who wrestle with finance and accounting. We help you put together the pieces of your financial puzzle by providing a solid foundation from which to successfully raise capital, manage growth and achieve liquidity. To learn more, give me a call at 1.415.897.0195 or visit http://www.venturemomentum.com.


Disclaimer: The information in the e-zine (the "Information") is current as of the date of the issue shown at the top of the e-zine. The Information is intended solely to illustrate general concepts and guidelines on various business subjects. It may not apply to specific situations. The Information does not constitute accounting, financial, tax, legal or other professional advice. You are urged to consult with a qualified professional who can understand your specific situation and advise you accordingly. No Information creates a warranty. All Information and links to other websites are provided on an ‘as-is’ basis without any warranties, express or implied, including warranties of merchantability or fitness for a particular purpose. In no event shall Venture Momentum, Inc., its authors, publishers, contributors and editors be liable for any indirect, incidental, special, consequential, or punitive damages of any kind whatsoever arising out of your use of this e-zine, the Information, and/or links to other websites regardless of the cause of action.
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