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Seizing opportunity when the competition blinks: Look for category and ecosystem openings

As I went looking for a new pair of sneakers the other day, you could immediately feel the buzz, or not, with the different brands.  Adidas looked revitalised with the “Samba” or “Gazelles” lines. Hoka and their big, almost platform-like soles seemed to be everywhere.  “On”, as a new brand, seems to be pumping, and even New Balance has a bit of pizzazz.

For streetwear like sneakers, there is either buzz or not…. a zeitgeist that captures what’s “in”. Nike, in comparison to other brands, looked stale, like an also-ran brand. It also seemed to be less prevalent — I just didn’t see it as much in my sneaker-shopping journey.

As I dug a little deeper, I saw that the stock has tanked and is half of what it was a year and a half ago. And as we speak, there is a huge investor activist push for significant change.

Yikes, Nike, what happened?

Nike has long personified innovation and leadership in key sporting goods categories such as basketball or running.   The new incoming CEO (John Donahoe) inherited this rich legacy but wanted to show his leadership.   Lots of media coverage and analysis love to point out that he engaged McKinsey, and the strategy outcome was to reorganise and double-down on “digital-first” to drive new efficiencies.

The theory behind the new strategy was to move away from divisions around individual sports categories and go deeper on demographic/persona data and analytics.   This would enable the company to sell more to each market segment.   Simultaneously it would increase digital direct-to-consumer, improve margin and adjust its ecosystem players, such as reducing on-prem wholesaler and retail partners.

These changes led to hundreds of layoffs and a reorganisation of the company into men’s, women’s, and kids’ categories, moving away from divisions focused on individual sports.”

Nike took its eye off the ball.

True category innovation at the sport level was stifled.  The focus became initiatives such as “how do we sell more to the 35 – 45 male, runner segment?”   And it is less about innovation, and driving the sports categories, and more about a 360 view of consumer behaviour.

Also Read: Lead, don’t follow: The essential guide to category creation and market domination

In other words, I don’t lead you, I listen to you. And that perspective went all wrong: “the company’s failure to innovate and reliance on classic models like Air Force 1s, Air Jordan 1s, and Dunks have left it vulnerable in a rapidly evolving market.”

The leadership and innovation at the category level was kicked aside, in favour of a flawed go-to-market strategy.

If you want to read more on this monumental failure, then The Atlantic had a great article in January this year pointing out the raft of issues from flooding the market with too many of the same line, to a market exhaustion with the retro-cool of Air Jordans.  Unfortunately, they weren’t cool anymore and competitors stole a step on Nike.

And that is at the heart of the issue: true Category Designers and Innovators don’t just look at the data. They look beyond past behaviour. They look at the problem from a different perspective. What’s happening on the urban basketball courts? What happens before and after the hoops game? What’s the missing and how can I attack and solve this gap/problem? How do I define and truly lead the Category?

Also Read: Leading the category, then losing it all: What WeWork can teach us

So Nike whiffed big time on creativity and innovation in the key categories that they used to lead.  And then they made it worse.

Categories don’t exist as a singular company and need an ecosystem to endure. Nike by all accounts messed that up as well.  The overwhelming focus on D2C seemed like a great way to drive improved efficiencies and margin. They exited multiple wholesale and retail relationships (and are now negotiating to get them back). The reality is that many consumers still wanted the physical experience to look and feel the shoe.

Key analysts have commented “Nike’s decision to disengage from long-standing wholesale partners in favor of a direct-to-consumer strategy backfired.  This move allowed competitors like Hoka, On, and New Balance to capture market share at key retail chains.”  Nike clearly blinked, and the competition moved on it.

Will Nike get its “soul” (“sole” ahem) back? They are hiring previous talents who left and that may help, but at the heart of the issue is innovation at Category level, reinforced with an ecosystem that buys into that vision and leadership.

Of all brands, we expect Nike to lead, and not follow. Somehow that got lost, and we will now need to see if they can just do it.

For nimble startups and aggressive growth companies, it offers a master-class in how to look at their own category and ecosystem, and seize opportunities when the competition blinks.

Editor’s note: e27 aims to foster thought leadership by publishing views from the community. Share your opinion by submitting an article, video, podcast, or infographic

Join our e27 Telegram groupFB community, or like the e27 Facebook page

Image credit: Canva Pro

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Ecosystem Roundup: TNG Digital eyes IPO in 2-3 years | Google CEO announces US$120M fund for AI education | Oyo acquires Motel 6 for US$525M

Dear reader,

TNG Digital’s potential IPO signals a significant milestone for Malaysia’s fintech landscape. As the largest fintech player in the country, the company has grown rapidly since its inception in 2017 through strategic partnerships with major global players like Ant Financial and Alibaba’s Lazada.

The projected IPO, which could raise over US$300 million, highlights its ambition to strengthen its presence both domestically and across Southeast Asia. The move also aligns with the broader trend of the region’s tech firms seeking capital to expand and compete in a region marked by digitalization and fast-growing financial inclusion.

TNG Digital’s services, including its widely adopted Touch ‘n Go eWallet, already position it as a key enabler of digital payments in Malaysia, boasting over 20 million verified users. With cross-border capabilities and partnerships with global payment giants like Visa, the company is poised for further growth, potentially reaching unicorn status before the IPO.

This expansion into adjacent financial services, such as lending, remittances, and insurance, will only solidify its leadership in the digital financial ecosystem.

However, the timeline remains fluid, as ongoing deliberations suggest the company is carefully considering market conditions before making a final decision on its public offering.

Sainul,
Editor.

NEWS & VIEWS

TNG Digital eyes Malaysian IPO in next 2-3 years, sources say
The Malaysian fintech could raise over US$300M; TNG Digital could potentially fetch the valuation of a unicorn before the potential IPO; The company raised US$179.30M from an equity funding round in 2022 led by Lazada and Touch ‘n Go.

Google CEO Sundar Pichai announces US$120M fund for global AI education
Pichai pointed to four broad opportunities for AI: helping people access information in their own language, accelerating scientific discovery, providing alerts and tracking around climate disasters, and fueling economic progress.

Crypto scammers hack OpenAI’s press account on X
Late Monday afternoon, OpenAI Newsroom, an account OpenAI recently created to spotlight product- and policy-related announcements, posted about a supposedly new OpenAI-branded blockchain token, “$OPENAI.”

SoftBank’s Masayoshi Son has been planning his comeback
Son largely disappeared from the public eye after SoftBank’s Vision Fund took huge losses from investments like WeWork; Now SoftBank is betting big on AI, and finding success by taking chip design company Arm public.

Temasek-backed ABC Impact leads Aye Finance’s US$30M Series G
Aye is an MSME lender; With a national presence spanning over 478 branches, Aye has diversified its product offerings to cater to the diverse needs of India’s rapidly growing MSME customer segment across various industries and clusters.

Adam Neumann’s startup Flow opens co-living community in Saudi Arabia
The rent for the furnished units starts at US$3,500 a month and includes hotel-style services such as laundry and housekeeping; Flow is building three other properties with nearly 1,000 apartments in Riyadh.

India’s Oyo acquires Motel 6 for US$525M
The Indian startup opened its first US location in 2019 and now operates more than 320 hotels across 35 states; Motel 6 is arguably the best-known budget motel brand in the US, with a franchise network of around 1,500 locations in the US and Canada.

Sam Altman catapults past founder mode into ‘god mode’ with latest AI post
The OpenAI leader presents an incredibly positive update on the state of AI, hyping its world-changing potential; Far from being an occasionally helpful alternative to a Google search or a homework helper, AI will change humanity’s progress.

MDEC launches investor matching programme
It is a key initiative aimed at connecting tech startups with a vast network of investors; Since its inception in 2020, the programme has facilitated over US$300M in capital matching, significantly supporting the growth of Malaysia’s digital economy.

Vietnam’s VinFast’s Q2 gross loss widens on impairment charge
The gross loss stood at US$224M, which is equivalent to a gross margin of negative 62.7%; This was primarily due to an impairment charge on NRV of US$104 million, compared to US$5 million in Q1.

Indonesia’s eFishery to expand Indian market after positive first year achievements
In India, eFishery has adopted business practices that have been implemented in Indonesia, including the automated smart eFeeder, feed trading services, fingerling support, medication, and pond management with best practices for farmers.

Mox Capital announces strategic support for rapid-scaling startups across SEA
COO Nguyen Dinh Giang said the US-based VC firm seeks to nurture rapid growth in Vietnam and Southeast Asia, especially those that fit the fund’s fast pace and alternative mandate.

FEATURES & INTERVIEWS

The future of Thai startups: Key players shaping the ecosystem
Thailand’s startup ecosystem is booming, driven by government support, investor interest, and key sectors like fintech and agritech.

FROM ARCHIVES

Expert advice for crafting a winning pitch deck, straight from the community
While there are many factors that contribute to the success of a fundraising process, you want to make sure that your pitch deck is spot on.

Cracking the code: Key traction metrics early-stage investors seek in startups
Different investors might consider different traction metrics, depending on the verticals that the startup is working on.

Innovation meets piety: How Netverse sets itself apart as a sharia-compliant metaverse
The IBF Net Group’s involvement in Web3 includes the IBFX token and a number of blockchain projects, including Netverse.

Muuse wants to eliminate single-use containers in Singapore’s thriving F&B scene
In this project, Muuse received support from the SG Eco Fund. It is also expected to launch a full commercial partnership in 2024.

Evercomm wants to pave the way for corporate decarbonisation success
In 2024, Evercomm is looking forward to expanding to the Middle East and Europe, after winning an award at the COP28.

Startups should celebrate failures. This is how to keep the experimenting culture alive
As founders, how do decide which experiments to run and what needs to be considered before experimenting? Startups should celebrate failures.

Essential insights: Crafting a comprehensive cap table for founders
When preparing for a cap table, pre- and post-money valuations are some of the key elements that founders must consider and include.

Visenze reveals its approach to B2B customer acquisition
B2B platforms have their own unique approach to customer acquisition. This is how Visenze does theirs.

The way startups are finding out if there is a pain point to solve
Only when the customers are willing to pay for the solution can the idea be said to be validated.

The coworking experience is not just about space but more about community
Coworking spaces are pushing the boundaries of traditional office spaces, embodying the perfect representation of the modern world.

Equity harmony: Strategies for fair founder equity distribution without discord
So, how much equity should you give your co-founder so that he feels motivated to join and work long hours to make the company successful?

THOUGHT LEADERSHIP

Brands as forces for change: Shaping the future through purpose
In today’s world, where things are fractured — geopolitically, socially, economically — brands have the power to bring people together.

Mastering AI prompt craft: One rule to rule them all
AI models are powerful, but they rely on clear, structured, and thoughtful inputs to generate useful outputs; A well-crafted prompt can save you time, ensure more relevant results, and enable you to fully leverage the AI’s capabilities.

Transforming customer insights into preventative wellness solutions: NalaGenetics’ story
NalaGenetics integrates preventive care with genetic testing to improve health outcomes and drive lasting change.

Filling the funding gap to fuel startup success
Thankfully, the landscape of startup financing is undergoing a significant transformation with the emergence of alternative funding options.

How to use Gen AI enabled chatbots for workplace safety?
By using the power of Gen AI, industries can not only meet but exceed current safety standards, setting a new benchmark for the future.

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YGG’s Future of Work: Empowering gamers for the AI age

YGG co-founder Beryl Li

Yield Guild Games (YGG) is a Web3 guild protocol that enables players and gaming guilds to find their community and discover games. It allows people to earn rewards by playing Web3 games and participating in the global decentralised digital economy. It has a network of gaming guilds focused on Web3 games, reaching over 7 million players globally,

The company recently launched Future of Work, a programme that matches AI and DePIN’s (Decentralised Physical Infrastructure Networks) training and growth needs with a global talent pool.

In this interview with e27, YGG co-founder Beryl Li shares more insights into the Future of Work programme.

Edited excerpts:

YGG started with the play-to-earn (P2E) model during the pandemic. How did this evolve into the Future of Work programme, and what inspired this expansion beyond gaming?

In late 2020, YGG spearheaded the P2E movement, allowing people to earn rewards by playing Web3 games and participating in the global decentralised digital economy. This was a lifeline for those locked down amid the COVID-19 pandemic and otherwise unable to work. 

Today, YGG represents a diverse and globally dispersed decentralised community with extensive experience completing in-game tasks and quests for rewards. Gamers have an intrinsic desire to improve their skills, demonstrate achievement, and level up, reflecting their pursuit of mastery.

Also Read: How Web3 games are taking the attention economy to the next level

As such, expanding beyond gaming into other emerging technologies that offer similar opportunities to learn, earn and grow was a natural progression for YGG. 

In a press release, you mentioned that 1,000+ YGG community members have participated in Future of Work’spilot activities. Can you share more details on the types of tasks they’ve worked on and the impact these tasks have had on both participants and AI training?

In the last iteration of one of YGG’s questing initiatives, the Guild Advancement Programme (GAP), we introduced AI Bounties, a set of quests with our AI partners FrodoBots, Navigate and Sapien. 

We successfully onboarded our community into these AI platforms through GAP, with 3,095 participants signing up for the quests. Questing adds a layer of fun to completing microtasks like data labelling. It challenges them to test their skills and reach milestones on these platforms while rewarding participants for their contributions. Above all, these activities are something they can do together as a community.

We are also partnered with Synesis One, another platform that trains AI models. It is opening up new types of tasks on its platform, and it started by working with us to deliver a pilot programme in which a small group of people were selected to complete a range of tasks.

For this group to be successful and provide helpful feedback, we needed to provide a level of training and upskilling, which we deliver through our onboarding and educational programme, Web3 Metaversity. 

We are very intentional about the types of AI training opportunities we introduce to our community. We only partner with projects whose vision aligns with ours. Our partners are driven to democratise data and sincerely want to uplift our community and improve the world.

You also noted that human input is crucial for AI training. Why is it crucial? How does YGG ensure that its members’ contributions are valuable and aligned with AI systems’ requirements?

Human input is crucial to AI training algorithms and refining data sets. It is also crucial to AI labelling because it ensures the accuracy, relevance, and contextual understanding of data that machines lack.

Additionally, human input enables the continuous adaptation of AI models to evolving real-world scenarios, cultural sensitivities, and ethical standards. Likewise, in DePIN, resources like spare GPU or CPU capacity are in demand. 

Gamification can be an effective strategy to encourage more people to contribute specialised knowledge for training AI models by making the process engaging, rewarding, and accessible. By incorporating elements like points, leaderboards, challenges, and rewards, contributors are motivated to participate in tasks like labelling data, identifying patterns, or correcting errors in AI systems.

Also Read: Web3 games should aim to have sustainable tokenomics, ecosystems: Froyo Games’s Douglas Gan

This approach transforms a typically monotonous task into a fun and competitive experience, attracting more participants, including experts in specialised fields. Gamification also fosters a sense of community and purpose, allowing contributors to feel that their input is valuable and impactful. Thus, it improves both the quantity and quality of the data used to train AI models.

YGG has a vast global network of gamers. How are you attracting non-gaming participants to the Future of Work program, and how do you help them transition into these roles?

Our community is always keen to try something new. We’ve already introduced our community to a few Future of Work partners through GAP and Web3 Metaversity, and we see a lot of traction from gamers trying out our AI bounties. 

GAP quests and bounties are a great way to onboard the YGG community to new partner platforms while welcoming newcomers. GAP incentivises participants to explore new products from our partners by rewarding them with soulbound tokens (SBTs) and YGG tokens for every quest they complete. It’s a lot of fun for the community because they are working on their quests together while sharing tips and strategies to support each other.

The SBTs they collect enable them to build their on-chain reputation. Our community feels a greater sense of fulfilment because they understand that these are the skills of the future that will open them up to all sorts of economic opportunities.

We also have comprehensive education programmes to bring to our community at in-real-life (IRL) events. For example, Web3 Metaversity was a highlight at the YGG Pilipinas Roadtrip, where we travelled to six cities in the Philippines and onboarded new members to our Filipino community. We partnered with schools and universities to educate students on emerging technologies and teach them the skills they need to take on those opportunities.

How does YGG’s Web3 Metaversity equip its members for the future workforce? 

To ensure equal access, YGG provides onboarding and educational guidance to its community members through initiatives such as its Web3 Metaversity programme, which conducts learning activities to equip community members with skills needed in the web3 ecosystem.

Participants hone their community-building skills through the programme, and our graduates can eventually pursue careers as community managers or moderators, events organisers, media analysts, content creators, and more. 

Web3 is one of the world’s fastest-growing industries, and there is a huge need for skilled and knowledgeable people to fill a range of roles. We aim to help the YGG community be in the best possible position to take advantage of these exciting new job opportunities and career pathways. 

How has YGG’s Future of Work programme impacted the lives of participants, especially those in emerging economies? 

Our collaboration with Web3 Metaversity has allowed us to empower people from remote places who may not haveaccess to all the education and job opportunities more widely available in the city centres. We’ve seen this in the Philippines, where locals from far-flung provinces would travel together in groups to attend the YGG Pilipinas Roadtrip, which visited five major regional locations, including Batangas, Baguio, Davao, Cebu and Bacolod, as well as Metro Manila.

Also Read: How Sipher won high-profile VCs’ hearts even before its blockchain games hit the market

This demonstrates the great value our growing community attributes to the upskilling opportunities we can provide through our online and offline programmes and events. 

As I previously noted, more than 1,000 people have participated in our pilot programmes. Each has had fun and earned rewards while learning in-demand skills in AI and DePIN. These pilot programmes are a springboard for participants to uncover more earning opportunities in emerging technology industries through YGG and beyond. 

How do you see AI, DePIN, and Web3 technologies shaping the future of work globally? What role do you believe YGG will play in this evolution? 

The popular sentiment around AI continues to be that it will destroy jobs and take away people’s livelihoods. Similarly, while we’ve seen tremendous progress in Web3 over these past couple of cycles, we are still quite early, and the industry continues to face scepticism and pushback. New technology may elicit fear and anxiety, but societal and economic advancement cannot be made without technological disruption.

YGG has always been at the forefront of emerging technologies. We’re cultivating a global community that doesn’t fear disruption but embraces it as the key to growth and progress. We are developing our initiatives to bring these opportunities to as many people as possible.

We want to show that while emerging technologies like AI may phase out some jobs, they will also create new and better ones.

Image Credit: YGG.

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Operva AI elevates facade inspections with autonomous drone, collaborative cloud platform

Terry Ng, Head of Strategy and Operations at Operva AI

According to statistics, there were approximately 16 major injuries per 100,000 workers in Singapore in 2023, with a fatality rate of less than one per 100,000 workers. Several local startups, including Operva AI, have developed various solutions to deal with the problem.

Operva AI aims to revolutionise the facade inspection industry with its cutting-edge platform, Airpland. This cloud-based solution enables pilots and enterprises to autonomously deploy drones, visualise detailed maps and 3D data, and access a global network of drone talent. Airpland not only streamlines drone operations but also enhances collaboration and progress tracking, making it a comprehensive tool for efficient facade inspections.

“Our objective is to improve inspection and monitoring processes within the built environment regarding efficiency, safety, and financial outcomes,” says Terry Ng, Head of Strategy and Operations at Operva AI.

“Our software solution for inspection of buildings streamlines the whole process by using AI to detect and label defects and observations while applying a structured inspection methodology with automated reports and dashboards. Our solution for monitoring progress at construction sites uses photogrammetry to build quality 3D models and extensive 2D orthophotos, such that the before-and-after can be compared on-demand.”

The startup has recently participated in the International Built Environment Week (IBEW) 2024 in Singapore, a global event that features tech innovation in the construction and built environment sectors.

In an email to e27, Ng explains the company’s work and plans for the future in detail. The following is an edited excerpt of the conversation.

Why is your solution better than the existing alternative?

If we compare it against preexisting traditional manual methods, the combination of drones and software is definitely less labour-intensive and safer.

Also Read: YGG’s Future of Work: Empowering gamers for the AI age

When compared to other drone-based competitors, we see an edge in that we have good synergies between our different products and have been focusing a lot on process improvements, which drives down costs.

If we compare against overseas companies, being in Singapore has its natural advantages as the Building Construction Authority (BCA) and relevant government agencies have already set up strong frameworks and regulatory regimes-–when we develop our solutions in alignment with that, we offer not just good software but also robust methodologies in which overseas markets will see the value.

Can you tell us about your product development journey at Operva AI?

I would say the journey has been one of experimentation.

We initially started with photogrammetry and common data environment endeavours, which laid the foundation for our development efforts. Our first product was a mobile app that helps pilots plan their flight paths, which is now an integral part of our overall Airpland platform product suite.

Through a recent cycle of the Built Environment Accelerate to Market Programme (BEAMP), an open innovation programme organised by BCA, Enterprise Singapore (ESG), and JTC Corporation (JTC), we were able to explore the enhancement of our photogrammetry solution more deeply.

This involved integrating advanced tools and metrics to improve 3D models, significantly influencing our design process from mission planning to data gathering, processing, and, eventually, model output. Simultaneously, we ventured into creating solutions for building inspections, which proved to be commercially valuable as they address practical, everyday challenges faced by the industry.

Can you tell us more about your users’ profiles? How do you acquire them?

Our user base comprises professional engineers, façade inspectors, asset managers, construction project managers, and drone pilots.

Also Read: How to use Gen AI enabled chatbots for workplace safety?

Regarding customer acquisition, warm introductions, referrals, and a good track record always help. Secondly, the company must be visible at a certain level so that people know about us before we even knock on doors.

In this aspect, BCA has always supported home-grown businesses. Programmes such as the BEAMP have been instrumental in connecting industry players with local startups while showcasing their innovative capabilities and products.

Outside of such events, whenever an industry player faces a challenge that a local startup may be able to solve, BCA would also not hesitate to actively help make a connection.

In the near term, we remain focused on inspecting buildings in the local market while gradually building an overseas presence. We are looking forward to exporting our experiences and offerings to other countries in Asia Pacific.

Sector-wise, we aim to be involved in more mid-size construction projects.

What is the funding history of Operva AI?

We have so far been primarily funded by shareholder equity and revenue from projects, with some support from government grants.

In terms of investors, we believe the best fit will be an investor who is familiar with the built environment industry and has a roadmap for creating value with us or who is keen to bring us into adjacent sectors such as infrastructure.

Also Read: Mastering AI prompt craft: One rule to rule them all

What is your big plan for 2024 and beyond?

Our current software suite is now fully commercialised, which marks a significant milestone in terms of product development.

So, firstly, as a business, in the short term, we aim to become even better at providing our current solution offerings to bring more value to our customers. Second, in terms of technology, we will be moving onto the next phase, where we integrate our current suite of products more tightly and enhance our 3D model outputs so that they can be applied to more use cases.

Overall, the next two years will be both critical and exciting, and we are looking forward to seeing how Operva AI develops alongside the industry in this current wave of digital transformation.

We deeply appreciate the open communication channels with government agencies like the BCA and their continuous support. Events such as the International Built Environment Week (IBEW) allow us to understand the latest trends ahead to better plan our next strategic moves.

Image Credit: Operva AI

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Navigating shareholders’ disputes in startups: Different exit strategies and mechanisms explained

As the business evolves, disputes may arise due to diverging interests or expectations among team members. Growth may bring tensions usually among founders, investors, or employees as they grapple with differences in vision or priorities among the stakeholders.

This post looks at the common legal tools and instruments that can be agreed among the shareholders to resolve disputes, and provide a line of sight for a business continuity. Understanding these deadlock clauses are critical for founders and investors alike, as they offer upfront mechanisms when it comes to resolving disagreements to exit strategies.

Aligning expectations early

Our usual advice to any aspiring founder before onboarding any new shareholder is to align expectations among themselves (especially before forming a company). Clauses that outline key issues include the roles and responsibilities of each founder, how decisions will be made among the founding team, and the strategic direction that can help avoid conflicts in the first place. 

In situations where shareholders cannot agree on key decisions (such as when two shareholders own an equal stake in a 50/50 ownership structure), deadlock clauses are essential to address likely impasses that may otherwise paralyse the startup’s operations.

Casting vote

In the event of a deadlock when it comes to a decision making (usually by the board in a tie vote), the chairperson of the board is usually given a  casting vote to a deadlock event. Ordinarily, a majority shareholder or a lead investor nominee may be designated to act as the chairperson for this purpose.

“Shotgun” or “Russian Roulette” clause

In a “Shotgun” or a “Russian Roulette” mechanism one shareholder offers to purchase the rest of the existing shareholders’ shares at a certain price. As it is a more aggressive approach of a buy-sell agreement, the recipients involved must either accept the offer or buy the offering shareholder’s shares at the same price. 

Also Read: Navigating startup funding: A primer on 10 investor types every entrepreneur should understand

In our experience, it may be rare to find this clause included in a shareholders’ agreement involving a startup. This may likely be due to the practical aspect of the mechanism i.e. the shareholders involved are expected to have the necessary liquidity to complete the transaction at the shares’ valuations.

Arbitration or mediation clause

If there is no casting vote or even an agreed independent party to assist in the deadlock, an arbitration or mediation clause in the shareholders’ agreement may allow for the parties to engage a neutral forum for dispute resolution. 

Arbitration clauses mandate that disputes be settled by an arbitrator or arbitration panel, while mediation clauses encourage parties to engage in facilitated negotiations before pursuing litigation. 

Both methods seek to offer an alternative method when it comes resolving shareholder conflicts, while maintaining confidentiality as the proceedings are held behind closed doors unlike a normal court process. In practice, exercising this clause may or may not be practical as the parties involved are expected to incur fees and charges when it comes to agreeing on the appointment of a  mediator or arbitrator (as the case may be) and also legal representation to act for them in the relevant alternative dispute resolution process.

Put and call options

A put and call option is a mechanism that can be used to force a buyout of a shareholder in certain situations. A put option gives one shareholder the right but not an obligation to require another shareholder to buy their shares at a predetermined price or based on a valuation formula. 

Conversely, a call option allows a shareholder to compel another shareholder to sell their shares under specific circumstances, such as after a deadlock or a breach of the shareholders’ agreement.

In practice, we may likely find these clauses exercised  and often triggered in events such as a shareholder’s death, incapacity, bankruptcy, or breach of contract. The different option strategies aim to provide  flexibility in dealing with disputes and ensuring that the company can continue without the presence of unwilling or uncooperative shareholders. 

Exit through a sale of the startup

If the dispute cannot be resolved, the shareholders’ agreement can outline an orderly process for the sale of the company as a whole. 

An exit is usually by a trade sale i.e. a third party buyer acquires the shares of the existing shareholders  to unlock value for all shareholders (in practice, the acquisition price may also be tied to the timing of the exercise). In this case, drag-along rights (as stated above) may also be useful, ensuring that the sale occurs without obstruction from any likely dissenting minority shareholders.

Voluntary winding  up/liquidation

As a last resort, the parties may agree to voluntary winding-up of the company in the event of a serious and irreconcilable shareholder dispute. This allows shareholders to recover value from the sale of assets and distribution of proceeds, albeit often at a discounted value due to the timing of the exercise. 

Also Read: The future of finance: ESG integration in tokenised funding

In practice, winding up is generally discouraged and should be viewed as a measure of last resort when other dispute resolution methods have failed.

Final thoughts

Shareholder disputes, especially involving a key figure in the startup, would likely affect the stability and continuity of the business. Disputes are usually managed effectively when the parties involved have agreed at the outset with the right legal mechanisms in place.

A startup lawyer can guide you to include any or a mix of the different mechanisms above such as the casting vote, “shotgun” or “Russian Roulette” clause, or put and call options to allow for an orderly exit from the company. This way founders and investors can better protect their interests and ensure that the company may continue to run even during times of conflict.

Editor’s note: e27 aims to foster thought leadership by publishing views from the community. Share your opinion by submitting an article, video, podcast, or infographic

Join our e27 Telegram groupFB community, or like the e27 Facebook page

Image credit: Canva Pro

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