TheFunded.com, a site that lets entrepreneurs rate venture capitalists, has released documentation for a new class of common stock called “Class F,” which it says entrepreneurs can use to give them more control versus the venture capitalists who invest in them.
Working closely with an attorney Yokum Taku at Wilson Sonsini, a top Silicon Valley law firm, TheFunded has issued the documents for entrepreneurs to use as templates for agreements when they form their company and take venture capital. The stock class has also been dubbed “common stock to protect founders.”
The moves come at a tough economic time, when the pendulum of power has swung toward investors. They have the money, and entrepreneurs need it more than ever. So investors are using their increasing power to leverage their rights vis-a-vis the entrepreneurs. They have slowly increased the number of terms to protect their investments, at the expense of entrepreneurs. Another factor favoring investors is that more VC firms are going out of business. That leaves fewer VCs, concentrating power even more.
The “Class F” stock offers company founders a number of protective provisions, as well as twice the number of votes as normal board members, and ten times the number of votes held by normal common shareholders. Class F shares vest monthly, without a typical year-long “cliff,” in order to act as compensation for founding teams, and they offer something called “single trigger acceleration,” which allows one founder to leave without hurting co-founders.
Of course, the glaring unanswered question here is whether simply issuing a new class of stock will change that dynamic. If plain-vanilla deal terms are being ignored by investors, why would they agree to terms that are even more in the founder’s interest?
Still, this is a good exercise because it at least shows founders what is possible. It’s difficult to get law firms to experiment, because they charge a $350-$600 an hour for their work, and few founders have the stomach at that cost to push their law firms to innovate on terms.
To be sure, the “Class F” idea is not entirely new. Versions of stock classes like it have used at several Silicon Valley companies. For instance, entrepreneur and investor Sean Parker and Orrick attorney Steve Venuto came up with something called “FF Class,” a special stock class that also give founders special rights, but focused mainly on letting them cash out early. The FF stand for Founders Fund, the firm where Parker works, and was used in several Founders Fund deals, including Powerset, Geni and Philotic.
The latest documents, however, are some of the first to be widely and freely distributed. They are part of something called The Founder Institute, a program unrelated to the Founders Fund (yes, this gets confusing) that offers to train entrepreneurs in a 4-month program, with mentorship from CEOs.
TheFunded’s foudner Adeo Ressi created the Founder Institute. He said that investors have “padded preferred rights agreements with increasingly complex terms that severely diminish the rights and protections of common stockholders. TheFunded.com and the Founder Institute are fighting back.”
Finally, Ressi, who is disliked by many VCs for his vitriol against the VC industry, has released a list of his “352 banned investors.” He says the blacklist includes (1) 30 firms that may have tried to influence reviews, (2) 10 firms that may have threatened legal action, and (3) 312 firms that may not be making new investments. The goal is to “save entrepreneurs from pitching inactive funds and wasting vital time in this challenging operating environment.”