Exercise caution when deciding to insert a shotgun clause into your Shareholders’ Agreement.  Often, for startups, a shotgun clause may do more harm than good.

A shotgun clause forces a shareholder out of the company. By exercising the clause, Shareholder 1 forces Shareholder 2 to either:

• • sell all Shareholder 2’s shares to Shareholder 1 at a set price; or
  • buy all Shareholder 1’s shares at that same price.

those are the only options.  While this might seem an excellent way to remove a founder who is not pulling their weight, there are a number of risks associated with the clause.

1. A shotgun clause may create a perception that there is conflict within the founding team.  Investors invest in a startup’s technology AND the founding team.  An early-stage startup that loses its team has a high chance of failing and, as such, investors want to ensure that the team stays together to protect their investment.  A shotgun clause is a heavy handed way of dealing with disagreements among shareholders and may cause investors to think that the startup team has underlying disagreements that may result in its breakup.   While an investor could simply ask that the shotgun clause be removed, the negative perception created by the clause may push away investors before investment discussions even begin.
2. A shotgun clause may create conflict.  The mere existence of a shotgun clause may exacerbate conflict within a startup team as members know that an extreme solution is always available to solve a disagreement.  By its very existence, the shotgun clause may preclude reasoned negotiation.
3. A shotgun clause may force you out of your company.  Whoever is richest wins with a shotgun clause – if you can’t afford to buy shares, you have to sell.  A shotgun clause could be used by investors to force you out of the startup you founded, given their superior financial means.

If you are seriously considering a shotgun clause in your shareholders’ agreement, ask yourself, “why it is needed?”  If you are not confident in a team member’s commitment then reconsider whether they are truly essential to the company.  Hopefully consideration of a shotgun clause will cause you to consider the makeup of your founding team and, in the long term, create a stronger company.

Solution:  reverse vest all founders’ equity to ensure that key team members remain for as long as needed.

Startups, especially those at an early stage, focus on building a positive reputation among their users.  Unfortunately, different team members can harm your startup’s reputation – including the legal team when they police your trademarks!

I have noticed a growing number of negative consumer responses to otherwise standard trademark policing actions, primarily cease and desist letters.  Attempts to protect a brand now have the potential to generate negative consumer perception of that brand and may require a trademark policing strategy that considers consumer perception.  Trademark policing involves searching for (among others) unauthorized use of your trademark or trademarks that are confusingly similar to your own.  I must stress that trademarks must be policied.  However, in scenarios where trademark infringement or confusing similarity is extremely weak, I believe that your legal team should factor negative consumer perception into the decision to undertake policing action.

Consider these two questions when determining whether negative consumer perception will result from a policing action:

1. Size of market and consumer knowledge?

The potential for negative consumer perception is greater in a small market with informed consumers.

2. Size of enforcing party relative to allegedly infringing party?

The potential for negative consumer perception is greater in a David versus Goliath scenario.

In the sports world, two large companies recently undertook trademark policing actions against small, local companies with loyal consumer bases.  The result was an uprising of support from around the world for the small companies and substantial negative consumer perception of the large companies.

While policing trademarks is necessary, overzealous policing action may not be.  Startups should consider the impact questionable policing actions might have on their brand, balancing protection and consumer perception.

Solution:  keep in touch with your legal team and understand their trademark policing strategies.