Startup Economics 101, or, How Long Until We’re Dead?

For example, this piece discusses fee deferrals up to $30K. How would this work?

A typical deferred-fee deal provides that a startup will get corporate legal services of up to x amount that are deferred for some fixed time (say, 6 months) or until the company does its first funding at some minimum amount (say, $1 million), whichever comes first. In exchange, the startup gives the law firm a small piece of equity for the credit extension. If the startup fails in its business, the founders are not personally liable for the cost of the legal services and the law firm eats the loss (this is the credit risk it takes for which it gets equity in exchange). If the startup does not fail, the bill comes due in time and must be paid.

Now, a few observations from one who has done such deals many times over from a lawyer perspective:

1. The deferred-fee deal is a beautiful fit for the type of go-for-broke, hope-to-massively-scale company that will depend heavily on VC funding. You team up with a few co-founders, set your company in motion, and let it fly. You get heavily diluted up front when the VC funding comes in at $5 million and up, the burn rate for the company is high, and you go all out with a prestige team to build that billion dollar company (or at least hundreds of millions). You hire a law firm that bills $500/hr and up even for green attorneys and that works in teams. A simple company formation is $5K and up; your convertible note round is $5K to $10K and up; your Series A round is $50K to $60K and up. And, if it all works, all this gets paid from VC money. If it flops, you owe nothing. In a way, then, this is a risk-free way as a founder to go for broke in launching an ambitious venture.

2. Now consider a bootstrap venture or an angel-funded venture where the founders delay outside funding until they can build a credible pre-money valuation in hopes of minimizing dilution. Unlike the VC-funded case, you will here want to be much more cautious about what the legal services will cost. In most such companies, it is easy to get through the first 6 months of the company's history (a typical deferral period) without coming anywhere close to spending $30K on a legal budget. Company formation can easily be done in the $2K-$3K range for the vast majority of such companies; bridge notes for $3K or so; Series A often for $5K to $10K. Maybe you also need Terms of Service and other miscellaneous items (e.g., trademark applications). Thus, if you add up all the typical legal needs of such a venture, you might get up to the $10K range in the normal case if you spend your money wisely.

3. The temptation, then, with a deferred-fee deal is to spend on legal matters with greater abandon given that you are using "easy credit." This made sense historically under the VC model. It makes less sense under the modern angel model and even less sense for a company that is going the purely bootstrap route.

4. When it comes to deferred-fee deals, then, it is important to count the real cost. It may be a good step for your company but make sure the fit is right for your venture. A decade ago, this was a near-ideal arrangement for most startups with quality founding teams. Today, it makes sense for some but probably not for most quality startups.

5. Bottom line: if a deferred-fee deal looks attractive, then, by all means do it. Just don't treat it as an axiomatic good. Like most easy-credit arrangements, the ultimate cost to your company (even if not to you personally) may be quite a bit higher than what it might otherwise be if you focus purely on the market cost of the services.

I do find it ironic that this item is emphasized in a (nice) piece on watching your spending and that is what prompted me to comment. Do watch your dollars and especially when someone offers you something that seems to be all upside (when it is not).

We went with something slightly different but probably more appropriate for a Scandinavian or European country. Basically each founder has a fixed sum that they can cost the company each month. It's up to each founder to decide how they split that sum between salary, benefits and mandatory retirement schemes. The salary itself can vary by as much as 30-40% depending on how you compose your package.

From my point of view, as the keeper of the cash, this makes burn rate planning manageable. All of us feel that the system is fair and we also feel we can optimize it for our own particular lifestyle. As for the actual sums we agreed on an equal split, with a slightly higher amount for the founder who had kids (that would be me).

This community is full of people who know how to hack code. I'd like to introduce the idea that it's possible to be equally creative with business entity design. Business laws and tax codes are just other types of codes, waiting to be hacked.

Corporations are one way to organize and that structure is well-suited to mature businesses. But it's far from the best format for beginning creative enterprises. It seems to be widely accepted that start-ups need to be corporations to make the transitions smoother as more investors are added down the line. It's time to reconsider that.

Start-ups have completely different needs than mature businesses and should not be strangled by all the baggage that comes with a corporation, in the name of 'making a smoother transition.'

It is fairly simple to start with an organization that is NOT a corporation and, thereby, avoid payroll taxes. Possibly ALL taxes, depending on the structure and the source of cash. This is particularly true if you are going to give equity anyway.

Do some research on entity choice. Examples might be a Limited Liability Company, Limited Liability Partnership (in some jurisdictions), Limited Partnership, Limited Liability Limited Partnership (also only in some jurisdictions), even go naked as as simple Partnership or Joint Venture.

By the time you're big enough to go public, you'll be able to afford the lawyers you need to reorganize. And that will be the least of your concerns. In the meantime, pick a business structure that is well-suited to your current needs, and can even help with some of your current headaches, like salaries, taxes, and cash flow.

So, yes, a good accountant will pay for themselves many times over. So will a good lawyer. Finding a good one is the real challenge.

It was interesting to know that these blog posts had such a positive effect just by unearthing a controversy, something out of the 37Signals playbook. Hard to argue against free marketing despite potentially stepping on a few toes.