Commodity national news is dead. Newspapers are dying. The AP wire on Yahoo News (or Google's more heterogenous and more cluttered version) and CNN.com are "good enough" that all other services providing "just the facts, ma'am" provide no incremental value. Most observers recognize that this leaves a void in the local space, and predictably you see newspapers retrenching into their neighborhoods, fending off competitors like Outside.in, EveryBlock, and ESPN's local sites.
In my time watching and working with startups as an investment banker, VC, entrepreneur, and consultant to startup teams, the notion of product/market fit has gone from a new insight to conventional wisdom.However, product/market fit never seemed like the right notion to me. After doing some thinking and working very closely with a handful of startup teams in the last year or so, I realized that a team isn't looking for product/market fit; it's looking for product/market balance. The notion of balance highlights the delicate task of getting a product to meet a market's needs:
So, Chicago's lacking in tech leadership, says a columnist in the Chicago Tribune. No, it's not, respond the heads of various tech organizations in Chicago and the State. As someone who's founded a startup here in Chicago, I'm certainly more inclined to agree with the Trib columnist than with the panel. However, I'm also a policy wonk - so I decided to take a look at the data to see who's right.
The goings-on on various econoblogs regarding Rattner supposedly threatening the creditors who didn't go along with the Chrysler debt cramdown is one of the more generally well-written "you people are missing the pot" things I've read in a long while.Chrysler, of course, filed for a Chapter 11 bankruptcy reorganization after all the creditors could not come to an agreement. The Obama administration, by way of the Treasury Department and Steve Rattner (the "car czar"), managed to get the four largest lenders (who had no choice, as they're being propped up by TARP funds), the UAW, and Fiat on board. But the agreement failed to get enough support from all stakeholders, and President Obama all but blamed the non-TARP debtholders for the bankruptcy filing during a news conference the morning of Thursday, April 30. Of course, the non-TARP guys objected to this characterization. Later in the late afternoon April 30, Perella Weinberg, one of the leaders of the non-TARP group, came around and supported the administration's plan, but it was too late. The bankruptcy was set. A lawyer representing the non-TARP lenders said that Perella Weinberg only came around because of threats made by the administration to bring negative PR to bear by way of their supposed influence over the White House press corps. Perella Weinberg, of course, denied this. On Finem Respice, Equ Privat wrote that there was a more sinister threat - that the administration did not just threaten bad PR, but would bring the IRS and SEC to bear upon the non-TARP creditors, their employees, families, alma maters, dogs, and favorite sports teams. Of course, this could be seen as an abuse of power (as we are all terrified of the IRS and all investment managers are scared of the SEC's ability to "slow them down"). Equ Privat called the purported Rattner threats "fascist". For this, she was mocked, mercilessly. The author of The Epicurean Dealmaker, used Looney Tunes to jab at the non-TARP creditors, saying "[i]t's called politics, you fucking morons. Stop being such a bunch of whiny pansies." The point TED made was that even if such a PR threat was made, there were a lot of people in the government under under a lot of stress, and the threat was just a negotiating tactic anyway. As Felix Salmon points out, the non-TARP creditors don't have much of a leg to stand on for their whining, coerced or not into a supplicant position at the mercy of the bankruptcy judge. Their position in Chrysler was a moral hazard one - "of course the Obama administration won't let Chrysler go bankrupt". Thus, if it won't go bankrupt, as senior secured creditors, they stood the most to gain. Pretty simple arithmetic. Problem was that they didn't think the administration would really let Chrysler go bankrupt - albeit a Chapter 11 reorg rather than a Chapter 7 liquidation - and they did, because they had all the post-event actors on their side: Chrysler management, the large banks, and a private actor, Fiat, to act as a savior. This was a completely predicatable outcome, and the non-TARP guys treated it as impossible. They assumed that the sanctity of American bankruptcy law and precedent would strengthen their hands well enough to force a positive outcome for their vulture investment. The non-TARP creditors are morons, not for whining, but for not seeing this play out the way that it did. It's called political risk.Look, we generally think of political risk when making investments in, say, Pakistan or Russia. But to completely discount the political risk of a vulture investment in Chrysler debt is completely insane. The notion that a Democratic administration was going to stand idly by as vulture investors were going to cram down the UAW and TARP banks is foolish. One, there's a legitimate policy argument that the United States needs a Detroit-based domestic automobile manufacturing enterprise for national security. You can agree or disagree, but it's a legitimate policy position. Two, the UAW is a powerful union in a swing state. To put it another way, the UAW ain't UNITE HERE. Three, it was completely forseeable that the Obama administration would take advantage of the troubles at GM and Chrysler to kickstart their environmental policy goals. The idea that the administration would put all of that aside based on fealty to the well-established order of creditors that you'd have in any traditional bankruptcy, as the non-TARP creditors believed, is naive at best and a violation of the prudent man standard at worst. Look, in most vulture situations, the non-TARP creditors would be right. You'd have an orderly liquidation, and the secured creditors would be in the front of the line to receive proceeds. But not here - the political risk wasn't even close to zero. It'd be like making a bunch of greentech investments with Dick Cheney and Phil Gramm as President and Vice President. You have to, at the very least, merely consider that maybe, just maybe, future policy decisions will make your current investment thesis weaker. The non-TARP creditors were insane to think their hand was as strong as they played it. It wasn't even a bluff - they really thought they were playing Omaha high low and that they were holding a Wheel. In the end, it turned out they were playing 52 card pickup and they lost.
One of the best things about Silicon Valley is that almost anyone will meet with you for a cup of coffee provided that you're reasonably intelligent and not an axe murderer. My intelligence aside, I'm not an axe murderer, so Yokum Taku, partner at Wilson Sonsini Goodrich & Rosati, was kind enough to meet with me on Friday.As people who read Hacker News know, I consider Yokum's Startup Company Lawyer blog indispensable for budding and active entrepreneurs. There is a wealth of information on all stages of a startup company's legal needs, free for the reading from one of the Valley's most esteemed lawyers. Yokum most recently helped bring WSGR's termsheet generator to life and drafted the publicly available Series F documents for Adeo Rossi's Founders Institute. Wilson also drafted YCombinator's "open sourced" Series AA angel financing documents. In addition to Wilson Sonsini's work, Cooley Godward drafted a set of angel funding documents released by TechStars and the NVCA also has publicly available venture funding documents, which were led by Sarah Reed of Lowenstein Sadler. While we did discuss Dawdle, Yokum was kind enough to talk to me about a question I've been asked plenty of times: "how do I get started if I don't get into YCombinator/TechStars/LaunchBox/pick the clone of your choice?" This actually ended up being a rather fascinating discussion, and with Yokum's permission, allow me to share with you what we talked about. (Quotes are from handwritten notes I took during the conversation. No recording was made.) I presented the following hypothetical to Yokum: you have two people who want to create a startup. They're convinced it has the potential to be a billion dollar company, and one of the founders was able to convince her parents to seed the company with $50,000. The other founder has an uncle who's a small-town lawyer who's willing to create and file the paperwork to set up the company for free. Given this situation, and incorporating Yokum's knowledge of financings and exits backwards and forwards, the question was "what set of documents should the founders give the uncle as a basis to form the company?" After thinking about this hypothetical, Yokum responded "I don't think those docs are out there." He volunteered that it would be "better to use [the YCombinator Series AA] docs than anything else [he] could think of", since there's "not much [the lawyer] could really screw up if he was reasonably intelligent." But Yokum did volunteer that the ideal would be to have an experienced startup attorney at an established firm draft documents for the company given the firm's standard documents. Surprised, I asked Yokum if he knew of any firm using the open sourced documents since they were available for free for anyone to use. He said there was not a lot of actual use that he knew of since every investor already has their own set of documents with their preferred terms. Yokum stated that the documents serve to "give entrepreneurs a chance to look at [sample docs] before getting educated [by] their attorneys," who ostensibly charge for the privilege. The documents effectively serve to educate startup founders for free rather than actually replace seasoned counsel doing incorporation work. Given that Yokum's advice was to forgo the free attorney and seek out experienced counsel, I asked "where does a startup founder find this counsel?" Yokum responded with a list of regions: Silicon Valley, Seattle, Austin, Boston, New York City, and DC. I joked, "not Chicago?" and he responded "well, I was just giving you a list of cities where [WSGR] has offices." (A quick one, that Yokum.) In fairness, Wilson Sonsini does not have a Boston-area office. But upon discussion, I agreed that experienced counsel would naturally arise in areas that had active levels of investment, which Yokum characterized with two things: venture investors, and "companies that 'throw off' rich people to be angels." Yokum volunteered that he only knew of one or two venture firms in Chicago, and I named a couple more in town. He then asked about angels, and I had to concede that I knew of no active Internet angels in Chicago or the Midwest as a whole. However, the list of areas that did have counsel that Yokum termed appropriate was higher than I thought it would be, meaning that there are a number of lawyers at a number of firms in a number of cities from which to choose. I asked "well, how does someone find such a lawyer?" and Yokum responded, simply, with "an introduction." He elaborated, saying that even the largest firms still do startup incorporation work, but that not every "bakery and restaurant" needs this sort of counsel. Introductions provide a filter for hard-working partners to signal that a company is worth representing. That said, Yokum was very clear: "any [WSGR] partner [in any city] is happy to sit down for coffee and chat" with founders. Yokum made the further point that any startup "[has] to network to be a successful startup company" anyway, so it wasn't unreasonable for partners to want some sort of filter to meet for coffee. I then asked "well, where should founders network to get this introduction?" Yokum, being extremely patient with me, explained his thinking: in any startup hub, there are numerous events where startup founders meet. Anyone can stick out their hand, introduce themselves to another founder, and strike up a conversation. Startup founders are generally thrilled to recommend their lawyers to another founder (if they like their counsel), so it's actually rather easy to get a name or three. Then the new company can do a little internet research and ask the founders they met at the event to do a quick e-mail introduction to the lawyer(s) they might want to represent them in their new venture. Founders should meet for coffee with those partners before they make a final decision on representation - again, any Wilson Sonsini partner will meet with you as long as you have a warm introduction. (And although it may sound like just talk, since WSGR is "Google's lawyer and Sun's lawyer", they still do startup incorporation work. As Yokum quipped, "once upon a time, we did Sun's incorporation paperwork".) I found this conversation extremely valuable: Yokum acknowledged that any set of open sourced documents wasn't appropriate to use as a "fill in the blank" template, but he also didn't state that only a small handful of Valley firms were qualified. There are a number of firms in a large number of cities that have partners that not only "do" this work, but have the requisite experience to not make the simple errors that prove costly down the road. I personally would recommend Wilson Sonsini to any potential founder given my high esteem for Yokum and his colleagues, but there are partners at other firms in all these regions that may be a better fit for your given situation. Please note that you are looking for a good fit with a particular partner, not just the "name" of the firm. Even though each firm's documents are "off the shelf" and an associate - or paralegal - will do most of the work, having a good relationship with the partner is critical for quick and accurate answers to your well-researched questions.
[EDIT: Apparently YC may make their incorporation documents public, which may specifically address this issue by giving the "lawyer with a shingle" a fill-in-the-blanks template that would work: http://news.ycombinator.com/item?id=579872 ]
It's very clear to me that these documents were substantially informed by the YC docs' terms but that they were adapted from standard VC documents, and aren't just mere re-wordings of the YC documents. Again, these documents and the YC docs are for the round *after* TS/YC funding. Lastly, I'm just comparing the Term Sheets here (although I've browsed through the legal documents). For my analysis of the YC documents, see my previous blog post.Substantively, the instrument is the same as the Series AA Shares in the YC documents: convertible non-participating 1.0x preferred stock at a 1:1 conversion ratio. Both the YC and TS Series AA documents give the Series AA investors rights to participate, on a pro rata basis (to maintain their ownership percentage of the Company after the closing of the Series AA round), in any subsequent financings. However, there are many things in the TechStars documents that aren't in the YC documents. First, there is a three-member Board of Directors that splits 2/1 founders/Series AA investor representative. There is no mention of the Board composition in the YC AA docs. Second, the TS documents introduce the idea of a "Qualified IPO", which is a standard VC term sheet concept. Again, the YC documents are silent on this. Third, there are specific notes about conversion price adjustments in the TS documents - the "broad-based weighted average anti-dilution protection (with customary exceptions)" is pretty standard language for a formal VC round that protects the investor in a down round. For a description of weighted average anti-dilution, see Yokum's post on the matter on his indispensable Startup Company Lawyer blog. Lastly, it's nice to see that each side is specifically responsible for their own fees in conjunction with the Series AA round. There is something in the YC documents that isn't in the TS documents - the 180 day holding period for insiders. Again, the 180 day period is awfully optimistic (especially in this environment), but it raised an eyebrow that the TS documents chose not to, at least, contain every term in the YC documents. Again, this is probably due to the TS documents coming from Cooley's standard VC round documents rather than being a Cooley version of the Wilson Sonsini YC documents. Further evidence for my theory is that, as of this writing, the Protective Provisions part of the TS term sheet makes reference to Series A, not Series AA. (Associate lawyer/paralegal oops. :) ) To me, I prefer the Cooley/TechStars documents, if only because they're more similar to standard VC documents, and I like that level of familiarity and I have nostalgia for the days when I'd wake up at 4am for a flight across the country. (Note: not true - I hate to travel and I really hate to wake up early.) The instruments are the same, however, and this is essentially just a style preference on my part. If you have any questions, fire away in the comments.
I had my op/ed "Gaming Needs A Real Sundance" published in GameDaily, the trade publication for the gaming industry. I take the events and small publishers to task for not encouraging developers to submit complete games in competition to attract publishing in the same way the independent filmmakers take complete films to Sundance to sell to the studios. (Well, their independent arms like Fox Searchlight and Sony Pictures Classics and whatnot.)
I advocate for the creation of a standalone festival that is centered on business. Take a gander.