Negotiating a contract with the bigger player – don’t be bullied


I was negotiating a contract with a major player in the on-line e-commerce space.  They sent us their boilerplate contract to sign.

I read the contract.  Not to re-hash everything that a friend of mine Bart Eagle, Esq. wrote in his article “Look before you leap” you really need to read that contract and object where objections are warranted.

I went about highlighting aspects of the contract I did not like.  Then the California corporate attorney (sorry, it was not you Bart) went through the contract and re-wrote both my issues and some that he had.  The modified contract was sent back to the Vendor and there is sat.

Two or so weeks later, we forced them act.  On a conference call between three of their people and myself yielded this type of conversation:

Me: Your contract wants me to assign to you the ability to modify trademarked logos that I don’t own.  I don’t have the legal right to do that.

Them: All our clients sign that clause.  Sometimes we need to re-work the trademarked logo.

Me:  Why would I give you permission, which puts me in jeopardy of losing a lawsuit when I know better?

Them:  Are you being difficult?  Because if you are we don’t need to work with you.

Me:  I’m not being difficult, I’m being smart, smart about the law, smart about protecting my company and negotiating contracts that are fair and not one-sided is my job.

Them:  You know the contract is just a formality.  Once we sign it, we put it in the filing cabinet and never look at it again.

Me:  Let me talk with the CEO, and I’ll get back to you.

There were other issues discussed, met by the same type of logic, the vendor was the big boy and what they said went.  Sometimes you need; in the words of Kenny Rodgers “know when to hold them and know when to fold ‘em”.

That was the end of that relationship.

Lesson of these stories is do not be bullied.  Yes, the deal may fall through and yes, it might hurt the bottom line.  However that “yes” to the deal, may turn sour and that contract you were bullied into signing, that was so lopsided in their favor will come back the haunt you…

Moreover, that haunting can cost you way more than you could ever make with the deal in the first place!

Sometimes the risks are just not worth the effort!

You have to be kidding me…

edited_documentReceived this via InMail looking for clients:

“My name is <name removed>.  I’m a former New York Jets player that is now working as a Recruiter. I have over 20 million resumes for all different industries. Do you have any job opening at your company? If so, Can I send you over a resume?”

What does being a pro ball player have to do with recruiting? I am neither impressed nor care that you were a ballplayer, but that’s me and I digressed, my apologies dear reader.

20 million resumes – really? What type of service do you offer either the candidates or your clients? What are you going to give me, a keyword search?

Hint: I can do that myself, here on LinkedIn and probably get a better selection.

Have you talked to any of these 20 million candidates!?  Are they a) real, b) still looking, c) able to work legally?  Have you also vetted them to some extent as to whether they are the requisite knowledge to perform the jobs to which they are applying (not degrees, not post nominal letters, real-life verifiable experience!)?

Next up in my critique of your email (some may say rant and they would have some credence to that claim) is your total lack of any investigation of my company.  You asked if I have any openings. [Rant – correct English would be job openings plural, not singular].

You didn’t even spend the time to investigate my company and see what we are about, what our needs might be or even limit your offer to key types of positions that all companies would employ (remember you have “20 million resumes for all different industries”).

I’m not sure what the value proposition is here for my company.  Is it that you are a former pro-ball player?  Is it that you have a database of unknown quality of resumes?  Is it that you didn’t spend any time to figure out what type of company I am?

If this was Marketing 101 (by the way, I was a college adjunct for 10 years, so I’ve graded enough exams and papers) and the assignment was to write a blind e-mail to sell your business (yourself) to a potential customer, I’d have to give you a failing grade.

I hope you have learned something and wish you luck in your new career.

Job hunting – beware of cyber-theft

Lost in Space

Looking for a job can be a way for the unscrupulous to steal your identity.

These days I am in a perpetual job hunt mode.  The job can be as a new client of my consulting business, whether as it is an interim or long-term assignment or as a full-time employee.  The roles are typically in the C-Suite (CFO/COO), but sometimes are in senior management.  Most of the companies are unknowns, which means I have never heard of them prior to the assignment or job.

I read somewhere that there are approximately 6 million businesses in the United States with the average number of employees around 20 people.  While the numbers may not be completely accurate, it makes sense, since the US Small Business Administration use to say that 80% of all businesses were small businesses, defined as under 50 employees.

Not that I really digressed, but added some color to this statement: just because I never heard of a company does not make that company dishonest or bad, it is just a statement of fact.  Then again, it does not make them (or individuals in them or just individuals pretending to be them) honest.

I just had a “client” try to pull a scam, but there were so many tell-tale signs I after the first e-mail or so, my hackles raised and I was on-guard. So now, I have framed in my office a fraudulent certified check for $98,700.


I apply to a fair number of jobs every day.  Many of these jobs (whether through a recruitment firm or direct) just ask for my resume and some level of contact information.  Easy peasy, and since I control that information, I can say that I haven’t been bothered by many unwanted calls or spam for the most part (although there are the less than stellar recruitment companies that do data mining from either recruiting sites like Monster, et. al. or LinkedIn that offer me jobs as an Administrative Assistant and the like.  Come to think of it, I’ve gotten a few text messages about jobs from the same types of people.).

Some firms ask me to regurgitate my resume into their database (a futile and time-intensive act), while others use more sophisticated software to parse either LinkedIn or my resume and attempt to pre-fill their forms (again, a maddening proposition for the candidate).  Then there are those who ask for additional information that automatically raise my internal Robot warning (if you remember seeing “Lost In Space” the 1960’s Sci-Fi TV show, the Robot was always flashing red and saying “Danger, Will Robinson!”  Or “Warning! Warning! Alien spacecraft approaching!”)

There are those US based entities that ask for my social security number and date of birth.  Now if you remember, most of the companies I come across are unknown to me.  What in the world, do they need to have Personal Identifiable Information (PII) at this stage of the game?

Their rationale is that they will run a credit check.  That’s fine, but again, why are they running a check now.  My resume may not passed muster, I may blow the interview or conversely they blow the interview (to the individuals who interview or interact with candidates please take note; the interview is a two-way vehicle. We both want to see if we want work together, think of it as a first date).

It is illegal while in the process of hiring to ask your age, so if I give my date of birth, I have given you my age.  The law is there to protect us older and for that matter younger folks from age discrimination.


There is no reason to provide PII to a potential employer until they are ready to provide a (conditional) offer.  By this time you will have hopefully done your due-diligence and know whether you would consider working for the firm.  They, the potential employer has provided you with a letter of intent, specifying the job, salary, benefits, etc. and may include such language to the effect of “…upon successful completion of a background check….”.

It is now up to you whether you want to provide your PII.  Obviously, if you were to be hired you would need provide this information for payroll.

What have your experiences been like?

Why VC/PE market space is suffering; the answer is not rocket science!

Venture CapitalThe Venture Capital/Private Equity market space from all accounts seems to be slowing down, with no one predicting a great 2016.  Pundits abound as to the reasons behind this phenomenon, from over valuation to lack of deals.

“Venture capital funding overall has risen so far this year. Through the first nine months of 2015, $57.9 billion has already been invested, more than the $56.5 billion raised in all of 2014. But the weakness in the IPO market is likely to catch up to the private market when investors can’t depend on public markets to provide a profitable exit.

Already, while VC funding is up from last year, deal activity has fallen off in 2015. Only 3,355 deals have been reached through the third quarter of 2015, down from the 4,943 reached all of last year, according to a report from CB Insights and KPMG. If deal activity continues at this pace, the 2015 total will fall short of last year’s. “

Don’t Be Fooled by Ferrari: The IPO Market Is Spinning Its Wheels By Millie Dent; October 22, 2015; The Fiscal Times

However, how can there be a lack of deals?  There are a zillion companies out there all looking for some type of funding.  The PE/VC industry even have their own prime-time television show (“Shark Tank”) in which to wet the appetite of those young start-ups.

Granted, not every business would be a candidate for investment, nor would every idea for a new business work.  If you watch Shark Tank how many of those deals would you invest in.  Did the Sharks overpay or miss opportunities.  Were all the business-people realistic with what they products could and could not achieve.  Did they value their companies correctly?

  • “Deal volume is likely to decline, attributable in part to increased volatility and sustained high valuations

  • Access to debt financing will begin to narrow in some cases, with lenders growing more cautious

  • The vast majority of respondents indicated they were planning to raise funds, with distressed investing popular in particular”

2016 Crystal Ball Report Pitchbook

Notwithstanding, from the episodes I have seen, there did not seem to be a unicorn present.  Granted, this is TV, and it is a reality/game show hybrid, but it does underscore the breadth of possibilities available.

Let us not forget there is also a large distressed market.  The distressed market is becoming more popular as the sum of the parts can be greater than the whole.  A perfect example is in aviation, where companies are buying up aircraft and selling them on the parts market, and making positive returns on their investment.

“Venture capital fundraising appears to be suffering from the slow IPO market for technology offerings and the overcapitalization of unicorn investing. This has been particular evident lately, as U.S. fundraising activity in the fourth quarter through November has slumped to the …”

Year in Review: Venture fundraising suffers from sour tech IPO market; VCJ; By Mark Boslet; November 25, 2015

The Year in Review seems to have hit the nail on its proverbial head.  Unicorn investing.  Here lies the crux of all our business ills – expectations that cannot be sustained.

What happened to the cliché from the classic Aesop’s fable, the Tortoise and the Hare?  “After that, Hare always reminded himself, “Don’t brag about your lightning pace, for Slow and Steady won the race!””  Why does every transaction have to be about the unicorns and massive returns?

There are unlimited number of companies in just the United States where investment could pay off.  Granted, not like a unicorn, but then again, they could be at average or better. “The average investor realizes returns of about 3.7 percent…” so says a Bloomberg article Average Returns, Rarer Than You Think By Barry Ritholtz  APR 9, 2015  Ritholtz goes on to say “This underperformance occurs regardless of the investment vehicle, whether it’s mutual funds, hedge funds or just plain old stocks. The reason investors tend to underperform is that they chase alpha (above-market returns) and fail, rather than aim for beta (market-matching returns) and succeed.”

So why do PE and VC capitalists risk so much on companies that have just as much chance as failing and only a 1% chance of becoming that unicorn.  In fact, claims that a start-up has a 1.28% of developing a billion dollar valuation  It has been postulated that 90% of all start-ups fail to get Round “A” financing.

The Cure

Maybe the cure to the downturn in VC/PE deals is to lower their sights, look for reasonable returns and help move the greater economy along.  Every successful company pays taxes along with their employees who in turn spend their earnings on goods and services as well as investing themselves in vehicles that provide the working capital for more investing.

Some food for thought as we close our books on 2015.



C-suite – All Or Nothing: Why aren’t companies considering interim solutions for key vacancies?


If one looks at the searches being conducted for additions or replacements to the C-suite, the time it is taking to fill those positions seems to be lengthening.

One search becomes two searches, which becomes three searches and so on.  We are talking about jobs where the position stays open on the firm’s website, not just with the myriad of recruiters trying to strike a sale.

Weeks turn into months, months to quarters and all the time, the company is either living with a sub-standard member of the C-suite or a vacancy.   Worse, they turn to a junior member of the team (who may not be ready to assume the mantle of the C-Suite position) and trundle along.


Why do companies feel that a key position can remain essentially vacant or function properly with a lame duck?  Life goes on, business goes on, and the duties of the C-suite are not in stasis because no one is there to handle the responsibilities.

We are not talking about deputies or low-level employees doing some basic caretaker duties while the C-suiter is on holiday, or a business trip or even a short sick leave.  We are talking a longer period where their absence will be felt, duties will not be performed and expertise is missing from the company.

Maybe the CEO does not like to be challenged by his/her management team, so let us leave the slot open.  Maybe the C-suite position is not really a full time position, and as such, the CEO can do double-duty.  On the other hand, maybe the position is not well understood either by the CEO or the position needs to be re-cast.


So; why aren’t more companies using the myriad of skilled, professional C-Suite interim executives to temporarily fill the slots.  The fit, does not need to be “perfect”.  The pedigree will be varied because professional interim folks have been in lots of businesses, industries, sectors, company sizes, public, private, family owned, government, for profit, not for profit, big cap, mid cap, small cap, growth companies, turnarounds, start-ups, sales, IPOs  and lastly liquidations.

Business is business.  Emerson Galfo, a CFO at C-Suite Services recently wrote this about the attributes of a full-time CFO on

The CFO’s responsibility is to understand the business (revenue and cost) model, the projections and capitalization strategies. Investors do NOT expect the CFO to be extremely knowledgeable with the technical/science (product) side of it. I will give in that the CFO should at least have a basic (and maybe a tad more) understanding of the product. Fully understanding the product is the role of the CEO and/or the Chief Technical Officer and/or Chief Science Officer. I still have to encounter an investor who questioned a CFO of how the programming works or what’s the science behind the product. And believe me, any CFO worth his salt will have a very good understanding of the product as they go through the roadshow even if he did not have a clue at the start.

The same can be true of an interim CFO, CEO, CIO or any C-Suite member.  They need to understand the business and apply their unique skill set to the problems at hand.  The company should have in other roles Subject Matter Experts who can provide that C-Suite member with the expertise they may be missing at the beginning of the assignment.


We have all seen companies who are stuck.  Stuck moving forward, and actually slipping behind.  Stuck in making decisions.  Paralyzed for fear of making the wrong choice.

Hiring an Interim executive solves many of those issues.  First off, they know they are there for a short time, be it a month, a quarter or a year.  They usually have a marching order that would be different from a full-time individual, because the Interim executive will probably be charged with some type of change management.

Will the cost of the Interim executive be more than the cost of hiring for a full-time role?  Yes! The economics involved should be self-evident.  However, what is the real cost to your business for leaving that role vacant or with a [an ineffectual] caretaker?

In an article in Fortune Magazine “The rise of the hired gun C-suite” by  Stephenie Overman  April 15, 2011 this insight was made:

With a good interim executive, says Pamela Wasley, CEO of Cerius Interim Executive Solutions, an interim executive placement firm, “there’s always a transition of knowledge to someone in the company.”

Your interim executive has become a value-added member of the C-suite, not just a short-term consultant.  Whether the interim executive comes from an executive placement firm, an accounting firm or is a solo-practitioner, the value of the interim executive outpaces all the alternatives.

So what is your excuse for leaving a key managerial role vacant?

Ethical Challenges

downloadCooking the books has been a long and time-honored (albeit illegal) pastime from time immemorial. The earliest know game was diluting olive oil during the Roman Empire.

The Roman’s solution was to record all aspects of each amphora of oil with all the particulars about the production, inspection, quality for the creation of the first (or one of the first) audit trails.

So what do you see as the pressures for cooking the books? Is it meeting investor expectations? Tax fraud? Fooling the bank? The writing off of non-business related expenses?

Is the size, ownership structure or other parameter more likely to influence the stressors and Ethical Challenges the C-Suite faces?

A recent in the Wall Street Journal discussed this topic:

Do agree with Kirk Hanson (the author)?


Sometimes the un-educated businessperson is the most educated

AAEAAQAAAAAAAATlAAAAJGViNjk1MGRhLWE5MTktNDE2NS1iNjc2LTliNDhmNTdhMDNlZgThornton Melon: Oh, you left out a bunch of stuff.
Dr. Phillip Barbay: Oh really? Like what for instance?
Thornton Melon: First of all you’re going to have to grease the local politicians for the sudden zoning problems that always come up. Then there’s the kickbacks to the carpenters, and if you plan on using any cement in this building I’m sure the teamsters would like to have a little chat with ya, and that’ll cost ya. Oh and don’t forget a little something for the building inspectors. Then there’s long term costs such as waste disposal. I don’t know if you’re familiar with who runs that business but I assure you it’s not the boyscouts.
Dr. Phillip Barbay: That will be quite enough, Mr. Melon! Maybe bribes, kickbacks and Mafia payoffs are how YOU do business! But they are NOT part of the legitimate business world! And they are certainly not part of anything I am doing in this class. Do I make myself clear, Mr. Melon!

From the Movie “Back to School” (1986) staring, writer and screenplay Rodney Dangerfield

Years ago, I working with a Thoroughbred Horse Racing Farm.   All the horses were strictly Thoroughbreds.  Some were just boarder for their owners, other were directly owned (with a fair share of disparate partners) by the Farm ownership.  Besides boarding, the Farm also bred, and foaled the mares.   After spending time at the Farms, I came too fully understand the cliché “hung like a horse”.

The major owner was an older Italian Gentleman from Brooklyn.  He originally was in the trucking business, owning a small but I am guessing lucrative trucking company.  He barely completed high school.  However, that did not stop him from becoming one shrewd businessman.  Did he make money on every deal, no, but he did make money.

He was from the old school, the pre-computer, pre-cellphone days.  He liked his rotary phone.  Fax machines were okay, but he really did not trust computers.  His partner’s in the Farm (actually there ended up being two farms, one in New York State, the other in Florida) demanded that the operation be computerized, which is how I came into the picture.   It was educational, from both our perspectives as I tried to explain the why and wherefores of computerizing the operations and he would explain how it was not necessary.

He had a unique philosophy that was summed up by a favorite quote of his; and has since become a part of my lexicon.  “High Tech is not High Touch”. Six simple words to convey a concept that seems to be lost in our rush to embrace the B-school mantra of spreadsheets rule.  Forecast: look at every financial angle, calculate the IRR, projected EBITDA, whether the project on paper is profitable. Decision: Go or no go based on the numbers.

His feelings were that while High Tech certainly had it place, that place was being overly prioritized to the detriment of “High Touch”.   High Touch demanded that one looking at the angles that could not be quantified with data points.

Having been involved in M&A transactions, the bottom line decisions were always related to hard data points regardless of symmetries, synergistic advantages, market or leadership, intellectual property being acquired.

Even during budget season, the same arguments are made, with the counter arguments (not always coming from the Office of the CFO) of why a budget item need to be $X, not the $Y figure in the current iteration of the budget.

Bottom line, we as CFO’s need to move away from the data point analysis (High Tech) and start moving to the strategic (High Touch) mindset if we want to be a true financial partner to the CEO.  Sometimes spending more on esoteric items (Employee benefits and education), charging less to customers, allowing vendors to make a little more actually means that we as a company will in the end gain.  We can gain respect, productivity, market share, improved quality.

Productivity increases, market share increases, improved quality translate to a value proposition that causes profits to increase.  Therefore, at the end of the day, another favorite of the B-School crowd is satisfied, increased shareholder value.

Why do people join LinkedIn?

I have been using LinkedIn pretty heavily for the last few weeks.  So heavy, that that LinkedIn has locked me out for 12 hours at a time for exceeding whatever limits they have for accessing LinkedIn.

Therefore after looking at thousands of profiles I have to ask this question:

Why do people join LinkedIn?

  1. Is it to meet people (socially)?
  2. Is it to find business?
  3. Is it to market oneself or business?
  4. Is it to seek new opportunities, be they employment or new ventures?
  5. Or is it because I need to have a “profile”, it is expected today?

If you have said yes to one or more of the first four choices then I have two questions for you:

  •  Why don’t you list an e-mail address?  You have several choices, your business (that may be transient), your personal or as many people do, a special Social Network/LinkedIn address.  In addition, if you are going to list an e-mail address, why not in the opening Summary so people don’t have to go crazy searching?
  • If you list an address, does it work? I can’t tell you how many e-mail address are either (unintentionally) mis-formed, or just plain wrong (as in no longer works).  Bad addresses don’t meet your need, which is being contacted.

So why don’t you take a few moments to review your profile and adjust it.

Who’s running the show? Why is HR hiring the C-Suite?

MV5BMjAwMzUxMzU2NV5BMl5BanBnXkFtZTcwNTgwODUyMQ@@._V1_SY317_CR9,0,214,317_AL_I must admit I am completely baffled.  Baffled you say?  Yes baffled.  I am unable to connect the logic that I see being used these days as it relates to hiring in the C-Suite.  Those proverbial dots from point ‘A’ to point ‘B’ are being hijacked.

We’re talking now about changes in the interpretation of how the going concern principle is being inculcated. The going concern principle is defined as a business will stay in business which is similar to Newton’s first law of phy

How does a business stay in business?  By hiring the best management, who then in turns creates the business, its products or services and hires the supporting employees to implement the strategies and plans to make success a reality.

But there has been a constant erosion of responsibility in the hallowed halls of both the Board Room and with the CEO and President.  The erosion is real life and it’s extremely dangerous to the life; not human being life dangerous, but the life of the going concern.

It is an abrogation of authority by the Board and CEO/President; a demurring to a constituency that “claims” knowledge in areas that they have absolutely no basis and can provide no validation besides self-serving certifications by associations that use these same certifications as profit centers.

Then, these same individuals, in order to raise the bar to their alleged knowledge use the old flim-flam.  Purposely gumming the works, giving many the bum rap and have the merve to say not only does their plan work, but they know best.

What is the issue?

The Board, the CEO or the President are allowing the HR departments to not only set the requirements for C-Level individuals, but interview and select those they “think” are qualified?  We’re not talking about the executive recruitment industry (the have their own issues), we’re only and specifically talking HR here.

Let’s be clear, I am not anti-HR.  HR is an important aspect to any business, but HR needs split into a tripartite organization.

  1. Administrative (handles all those pesky Federal/State/Local issues which keep growing logarithmically year in and year out).
  2. Benefits and compensation – they advise on salary ranges for banding of like-kind jobs as well as handling the mind numbing paperwork involved in the benefit programs.
  3. Human Asset Strategy – this is a very small unit which does not create job specs or actually do the acquisition, they assist and provide consultation to the individual hiring managers, again with consultation with the Benefits and Compensation division as well as the Finance department (budget), and help the acquisition process along. The manager of the X department should have a clear cut idea about what type of person is needed and what the job spec should be; how can the traditional HR practitioner know what is really needed, especially since many never worked outside that department or haven’t worked in many years outside that department and most certainly probably never did that job.

On the other hand, the hiring manager either did work at that level or is working day to day with those employees to know what is and isn’t needed.

Talk with C-level professionals and other senior management and you’ll likely hear similar complaints about talent acquisition.  You’ll probably hear more complaints from accounting and finance departments due to turf battles having to do with payroll, but the talent acquisition issue seems to broad based.

If so, why is the Board and CEO delegating such important decisions away and down the chain?  Could it be plausible deniability so when the C-Suite occupants fail or turnover is high they can say it was HR?  What advantage in the long term does that serve?

If you have a point of view, even if it’s contrary to mine, I’d like to open a dialogue.

Blast marketing that can backfire

The marketplace as it is, the search for new employment should never cease.  While the activity waxes and wanes, one’s resume should always be sharp.  One example is LinkedIn, which many consider one of the premier networking sites and thus employment sites.

So, as we post our resumes on-line we do open ourselves to unwanted e-mail.  It is unavoidable.  Just as e-commerce websites sell our e-mail address to third parties, unless we explicitly request (assuming they even ask that we care) many of the resume or job posting sites do the same.

The other day I received this e-mail:

Friday, July 10, 2015
From: Jeff Marcakis
To: me
Hello Wayne,

PDS Tech is seeking a High Value Associate in the Farmingdale, NY area. This is a 12 month contract assignment. The pay rate ranges from $13.05-$18.15hr, depending upon experience.

Duties include:

Auditing high value claim shippers, locating high value packages in the center or hub and ensuring proper handling. May also contact destination hubs or centers to notify them of the status of high value packages. Additional duties may include performing loss prevention activities related to center or operation physical security.

Hours: 4:30am to 9:30am, Monday – Friday

To be considered for this assignment, please forward an updated resume to:

Letter Value: AE73D3-31C93E7


So where did Jack and his company go wrong?

  • Let’s start by clearly telling me that I’m not important enough to get a letter that isn’t a form letter (even though I know it is, perception is reality).
  • Then, did Jack ever bother to read any part of my resume? Where does it say that I’m a warehouseman/customer service representative on my resume?
  • Then the pay range he mentions, that clearly meshes with my resume – not.
  • Lastly he wants a copy of my resume again, why? He didn’t bother to read it the first time!

I must admit the only thing he got right was that I do live in the vicinity of Farmingdale, NY. One out of five aspects isn’t bad, if he played baseball…. But not in business!

Now I tried to reach out to the president at PDS Tech, but they didn’t care, which is evidenced by their HR manager calling  back; and they really should have cared and have the president or an operational VP call back.  I missed the HR Manager and reached out again.  They never bothered to get back to me.

They should care that I, and probably many other potential hiring/decision making managers will now remember a) this companies name, b) how unprofessional they are and in my case that they wouldn’t take constructive criticism from a potential (customer/employee/temporary worker).

Why would I ever bother doing business with this company?  Why would you after reading this want to either?

Companies spend 3-10% of their budget on advertising and marketing which includes brand development and  recognition.  All it takes is one misguided individual and then a lack of response from management to take those dollars spent and flush them.

What do you think?