Given this week’s headlines, many emerging companies may be asking themselves: “Why am I holding so much cash?” The Investment Company Act of 1940 (the 1940 Act) may be to blame. “But I don’t have any intention of being an investment company. Aren’t those mutual funds or…
In the three days since federal authorities announced sweeping measures to protect depositors of Silicon Valley Bank (SVB) and Signature Bank and help prevent additional bank failures (as discussed in our update of March 12, 2023), the U.S. banking system appears to have stabilized, at least temporarily.…
In response to recent client questions regarding the various considerations and options for holding short-term funds, we have prepared a reference chart comparing certain key characteristics of demand deposits with government securities, money market funds, and other short-term cash management instruments. Please note that this information is…
At 6:15 p.m. ET on March 12, 2023, the Department of the Treasury, Federal Reserve, and FDIC announced “actions enabling the FDIC to complete its resolution of Silicon Valley Bank, Santa Clara, California, in a manner that fully protects all depositors. Depositors will have access to all…
Below is an overview of the failure of Silicon Valley Bank (SVB) and what we expect to happen next. This reflects information as of 4:00 p.m. PT on March 11, 2023. We note that it is an evolving situation; we will provide updates as warranted in the…
Regardless of its financial situation, a corporation’s board of directors owes fiduciary duties to the corporation. Boards of directors of emerging companies, like mature companies, should understand the scope of their fiduciary duties and to whom and what those duties extend as they respond to the corporation’s…
Startup founders and investors could miss out on huge tax savings if they fail to consider the potentially significant tax benefits of holding qualified small business stock (QSBS). Why it Matters Stockholders may potentially exclude from income all or a portion of any gain recognized on the…
In times of economic uncertainty, it is important for emerging companies to recognize, prevent and address financial distress. Below is a summary of what it means for a company to be insolvent, what are the warning signs of insolvency and what steps a company can take when…
Click here for the Guide to New Beneficial Ownership Reporting Rules
What is founders’ preferred stock? Founders’ preferred stock (also called series FF preferred stock) addresses certain tax and accounting issues that can arise when founders decide to get early liquidity by selling shares of their stock to investors at the same price as other preferred stock sold…
As outside counsel to thousands of VC-backed startups, we are often asked the same questions about what startups need to do after raising their first round of VC financing. Here is a quick and dirty list of those next steps. The action items below are described in…
Board meetings are your opportunity to check in with and give an update to your bosses and get feedback and guidance from the experienced members of your board. It is common for VC-backed startups to have four to six board meetings per year, though this frequency can…
While your financing agreements might have other requirements, below is a nonexhaustive list of the types of corporate decisions that typically require board and/or stockholder approval: Board Approval Is Required to: Stockholder Approval Is Required to: Amend the charter or bylaws. Approve significant corporate transactions (e.g., sale…
After raising a significant amount of cash from VC investors, it is time to do a top-to-bottom review of your company’s intellectual property (IP) portfolio. To get started, here’s an overview of the four main types of IP: Patents protect rights regarding inventions and discoveries, such as…
Get a Cap Table Platform The company’s cap table is a historical record of who owns how many shares of the company’s stock, stock options, warrants, convertibles, and other ownership stakes in the company. As a VC-backed company with a more complicated cap table, you must keep…
Since you’ve already raised a significant VC round, you should already be familiar with the process for issuing securities to investors. Here is a refresher if you need it. Securities Laws Overview All sales, purchases, and offers to sell or purchase shares of stock or other securities…
Adopt an Equity Incentive Plan Now is the time to adopt an equity incentive plan if you don’t already have one. Your investors likely made it a condition of financing to adopt a plan with a certain size of share reserve and certain forms of award agreements.…
Below is a list of miscellaneous items you should complete now that you’ve raised your first significant VC round. As always, if you have any questions, please reach out to your Perkins Coie team member. Get More Insurance Coverage At the very least, you should already have…
Should I Send Out Investor Updates? While generally not required, it is a good idea to send out regular investor updates (at least quarterly) to establish relationships with your investors, keep them informed, and potentially get ahead of any bad news that may arise. After you’ve established…
Now that you have a VC-backed board, good corporate governance and a well-functioning board are even more necessary than when your board was made up solely of founders. Oversight and Supervision The board is collectively responsible for promoting the success of the company by directing and supervising…
Now that you’re a VC-backed company, chances are you’re about to go hire a bunch of employees with those funds. Your investors are looking to you and your board to comply with the law and protect their investment from employee-related risks. There are numerous federal and state…
We’re excited to introduce a multipart and ongoing series about the basics of (and some advanced topics related to) equity for startup employees and contractors. The “Human Capital” aspect of any enterprise, especially a technology company, is its most valuable asset, and we hope to highlight the…
Stock options are the most common form of equity incentive for early-stage startups. A stock option grants the option holder the right to purchase a specific number of shares of the company within a fixed period of time at a preset “exercise” price, generally following the satisfaction…
The U.S. federal taxation of stock options for U.S. taxpayers depends on whether the options are classified as incentive stock options (ISOs) or nonstatutory stock options (NSOs). Incentive Stock Options (ISOs) ISOs may provide a tax advantage to the holder if (i) the optionee does not sell…
A stock purchase award (also known simply as “restricted stock”) is the sale of a share of stock in exchange for an actual cash payment (or transfer of property with a fair market value that equals the purchase price and which property is not already the company’s).…
A stock bonus is the issuance of a share of stock without payment of any purchase price. The stock bonus can be granted subject to vesting or can be granted fully vested, such as in satisfaction of prior services rendered or as an alternative form of payment…
Restricted stock units (RSUs) are rights to acquire stock without paying an exercise or purchase price. Vesting and settlement must comply with Internal Revenue Code Section 409A. Generally, shares must be issued (and taxation triggered) shortly after the vesting date. While private companies commonly use a liquidity…
We often are asked when a company would use “full value” stock awards (stock purchase, stock bonus, or RSUs) rather than stock options. There are a few scenarios in which stock awards might be a more beneficial method of equity incentive than stock options: Very early-stage company…
What is the purpose of Section 409A? Internal Code Section 409A attempts to limit and regulate the use of “deferred compensation”—that is, the legally binding right to receive compensation in a future year, after it is no longer subject to a substantial risk of being forfeited by…
Holders of stock options must exercise their vested options within a certain predefined time period after they cease providing services to the company. This time period is known as the “post-termination exercise period” (PTEP). What is the standard PTEP? The standard PTEP is three months. This means…
Normally, a stock option can be exercised only with respect to the vested portion. “Early exercise” stock options allow a service provider (employee, contractor, etc.) to exercise a stock option with respect to some or all of the unvested portion. The early exercised shares are shares of…
Historically, in the world of venture-backed startups, investors and entrepreneurs worked from the shared understanding that, once an employee provided “sweat equity” through their services, such employee was entitled to enjoy the future benefits of that equity. As a result, stock plans and award agreements typically did…
Happy International Women’s Day! Today is a day to recognize the achievement of women in our lives, acknowledge that gender bias still exists, and take action to forge women’s equality. This year’s International Women’s Day theme is #BreakTheBias, so we reached out to a few of our…
We are going to touch on the basics of what you need to increase the likelihood of a successful fundraising round. Keep in mind that you are competing against every other investment opportunity that comes across an investor’s desk. Investors are tight on time and resources, so…
Below are a few guiding principles to keep in mind when creating a pitch deck for investors. Please note that these considerations are not meant to be comprehensive and are only intended to provide general, high-level guidance with respect to the antifraud provisions of U.S. securities laws,…
You may be wondering how investors come up with valuations as well as the number of shares to be included in a financing round. Much of this is determined by the market rate as well as incentives and “venture math.” As you can imagine, it is important…
One of the many misconceptions when creating a company is that the terms “startup” and “small business” are easily interchangeable. They are not. In the venture capital industry, a startup has many more requirements and expectations of being a hypergrowth endeavor that can generate at least 10x…
Every startup will eventually have contracts with third-party vendors and suppliers to provide goods and services to the company. Taking proactive steps to ensure that the insurance requirements in your vendor contracts accurately reflect the needs of your company is vital to avoid complicated insurance issues and…
In the tech startup world, limited liability companies (LLCs) are fairly uncommon, for some very good reasons. However, in certain circumstances startups can utilize the LLC structure at formation to help maximize the potential qualified small business stock (QSBS) gain exclusion upon the sale of stock of…
“Shadow preferred stock” refers to a series of preferred stock that is created when a SAFE or convertible note converts into stock at a price per share that is less than the price per share for the stock issued in a new equity financing. Shadow preferred stock…
Here are some important things to keep in mind if you are considering raising capital in a SAFE round. What’s the Difference Between a SAFE Financing and a “Priced Round?” When raising capital, one of the main considerations is whether to (a) use a convertible security, like…
Businesses face several considerations when onboarding founders or employees who reside in foreign countries. These issues also apply to U.S.-based founders and employees who move to a foreign jurisdiction and work remotely.
Industry leaders weigh in on the future of AR/VR/XR Perkins Coie and XR Association survey of over 160 professionals found that immersive technology’s prospects have been strengthened by the pandemic. The findings from startups, enterprise technology firms, consultants, and investors gathered their insights on the trajectory of the immersive…
Transfer restrictions are one of the principal tools that startups use to prevent secondary transfers of their capital stock and maintain tight control over their cap tables. The majority view in the market is that it is best to omit transfer restrictions from the bylaws because future…
The difference is in the potential dilutive impact of the SAFE on founders. Post-money SAFEs can dilute founders significantly more than pre-money SAFEs. When SAFEs with a valuation cap convert to equity in a future financing, the price at which they convert is determined as follows: SAFE…
Should you file a patent application or keep your innovation a trade secret? This question is routinely asked by key decision makers, such as inventors, managers, and legal counsel, when evaluating a new invention. While either choice comes with its own set of advantages and trade-offs, an…
The purpose of negotiation is to obtain improved transaction terms. Although negotiation is commonly thought of as a series of discussions in which each party advocates for its position, the best results often derive from a structured process that forces multiple parties to compete for the deal.…
Startups have a long to-do list, and it can be tempting to put off tackling important work around branding until just before launch. Don’t push the pause button on branding considerations. Strategizing around branding in the early days of your business pays dividends. Your branding goal is…
SAFEs and convertible debt financings broadly accomplish the same goals for early-stage (and even later-stage) emerging companies. The legal and negotiation costs of these instruments are typically an order of magnitude less than a traditional “equity” financing (Series Seed, Series A-Z, etc.), and for the most part…
One of the clear themes from Perkins Coie’s 2018 Augmented and Virtual Reality Survey—especially in comparing the results with our inaugural survey in late 2016—was that the industry is growing and, at the same time, encountering new obstacles. Industry insiders responding to the survey—which included startup founders,…
As the summer quickly approaches, it’s the time of year that many employers consider hiring an intern for the summer. Start-up companies may view this as an opportunity to hire students as “cheap” or “free” labor. Unfortunately, there are a lot of misconceptions about unpaid interns. The…
Within the next few weeks, corporations incorporated under the law of Delaware will receive ominous notices from their registered agents or the Delaware Divisions of Corporations advising such corporations of their annual obligation pay the their Delaware Franchise Tax. Save for “83(b) elections,” “scalability” and “valuation”, no…
U.S. Citizenship and Immigration Services (USCIS) is proposing to grant work authorization to foreign entrepreneurs who raise substantial capital for companies they start. USCIS estimates some 3,000 foreign entrepreneurs may qualify annually. USCIS expects this new proposal to create jobs, facilitate research and development and increase innovation…
Augmented reality (AR) and virtual reality (VR) have taken major steps forward this year with the groundbreaking launch of Pokémon GO in July 2016 and the release of several VR headsets. As the startup world convenes in San Francisco this week at TechCrunch Disrupt 2016, Perkins Coie…
Most entrepreneurs will need to raise a small round of capital very early in their company’s life cycle to get the company off the ground. The amount is typically anywhere from $100K to $500K and is utilized to build the MVP (minimum viable product) and secure initial…
For entrepreneurs operating in innovation-driven marketplaces, protection of intellectual property is of foremost concern. Accordingly, startups should require each employee and independent contractor they engage to enter into a Proprietary Information and Inventions Agreement. While agreements of this nature go by several different names (e.g., Confidential Information…
When developing your investor pitch materials, it is important to approach the process as a competition for the investor’s attention. Most companies view their competition as the handful of companies that service their particular market segment. When it comes to raising capital, you are actually competing against…
Many entrepreneurs have a good understanding of statutory limitations and regulatory constraints on the operations of the businesses they are starting. That understanding often comes as a result of familiarity gained from years of experience operating in an industry. Other entrepreneurs may be newer to an industry,…
Entrepreneurs should form a business entity as soon as they embark on a new startup venture. A key feature of business entities (e.g., corporations or limited liability companies) is limited liability, meaning that the assets of the owner of the business available to satisfy claims against the…
During its life cycle, a typical company enters into several key transactions. These can include debt and equity financings, an exclusive license of the company’s proprietary technology or an acquisition of the company by a strategic buyer. Before signing the “definitive agreement” for a key transaction, however,…
Our company clients often come to us at an early stage in their growth process with some variation of the following question: “We were introduced to an amazing resource who can help our team grow the business in a material way. We’re considering putting the person on…
In this final installment of “I Got You Covered,” we provide a number of risk management tips with a focus on additional insured status. Although this list isn’t comprehensive, it covers the major risks that an additional insured should consider to actively protect its company and its…
In this installment of “I Got You Covered,” we discuss the benefits and drawbacks of additional insured status. Benefits of Additional Insured Status There are a number of reasons why a company would seek additional insured coverage. These include the following: Accessing Someone Else’s Insurance. At the…
“I got you, Babe.” It’s not just the title of a 1965 Sonny and Cher hit—it also aptly describes the relationship between a named insured and its additional insured. To clarify, an additional insured may be able to access the coverage provided by the named insured’s liability…
“All outstanding shares of the Company’s Common Stock . . . are subject to (i) a right of first refusal in favor of the Company upon any proposed transfer . . .; and (ii) a lock-up or market standoff agreement . . . .” –National Venture Capital…
There are cost-effective methods to protect your company’s IP in China—if you take them early. 1. Register your IP Except for copyright (which is automatically protected in China via the Berne Convention), U.S. IP registration does not provide you with any protection in China. Without registration in…
Many of the benefits of raising a Series A round are obvious—improved team morale, validation from outside investors and, of course, cash. Another benefit may be less obvious—raising a Series A round can open up new sources of capital, including venture debt. “Venture debt” is a type…
New founders often approach service providers generally, and lawyers in particular, with a degree of caution. They’re typically aware that they need advice, but they’re concerned that obtaining such advice will come at a cost, which most startups would prefer to avoid given the need to focus…
So you’ve been hammering away, putting your life savings into your new startup (plus maxing out your credit cards) and now you have investors willing to put money into your company. How should the money you contribute before investors be treated? And how do you to get…
Patents are important to startups because they provide a legally sanctioned monopoly that bars entry to competitors. In addition, patents may serve defensive purposes in that competitors may be less likely to sue a startup for patent infringement if there is a risk of a countersuit. Further,…
A couple of months ago, we gave you five privacy tips relevant to startups and told you about the consequences startups face from regulators if they fail to protect their users’ privacy. Regulators like the Federal Trade Commission (FTC), the Federal Communications Commission (FCC), the Consumer Financial…
Collecting stockholder consent by email can be more complicated than collecting director consent by email. If your company is incorporated in a state that permits stockholders to consent by electronic transmission, developing a process for collecting these consents is key to ensuring that the stockholder action is…
Stock options – the right to purchase stock in the Company at a fixed price (“exercise price”) for set period of time-generate many of the questions facing a startup lawyer. This relates to the popularity of options as a way to compensate employees and contractors. Benefits: Properly structured options are…
Q: How should I invest in insurance for my startup? What types of insurance do I need? What can I expect from the claim process? A: A full risk assessment of your company’s developing business requires an audit of your potential liabilities. However, as a general rule…
The most common exit for early-stage companies is acquisition by another company. Because early-stage companies by definition do not have a long history of revenue and earnings performance, it can be difficult for the buyer and seller to agree on valuation. The seller will argue for a…
Startups have bigger concerns than privacy, or so they think. Many startups have learned that being young and small does not keep them off the radar screens of privacy regulators, and they can be vulnerable to costly investigations. Privacy issues that come to light in the course…
In our Emerging Companies & Venture Capital group, we often work with founders and early- stage companies that are in the process of raising their first round of financing. On occasion, this takes the form of a “friends and family” round, consisting of a group of supportive…
It’s a proud day when you receive your first round of funding. Each subsequent round helps build your dream, but at a cost. As commitments are made, do you take the time to think about how much company you now own? BothSidesofTheTable.com put together this infographic on…
Key to any early stage fundraising effort is a well-crafted Executive Summary, or Exec Summary. This succinct document describes your new venture and preemptively addresses fundamental questions that prospective investors will have. I have read hundreds of executive summaries over the years. And, the few good ones…
A great estate plan is like a business plan for yourself and those most important to you. Just as a business plan is a road map to long-term success, an estate plan is a road map to achieving peace of mind for your family and perhaps even your business partners. As we have heard many times before, there is no escaping death and taxes, so we might as well plan for both. And yet, when we work with founders, we often find that they are so consumed with running their businesses that their estate plans—their "personal" business plans—are in disarray or nonexistent. Below are a few pointers to help you begin to chart a course in estate planning.
The right employees help your startup rise to the top. Identifying those employees early can save time and money. The infographic below created by FocusHR points out some of the innovative strategies companies like Zappos and Google employ to find dedicated employees and create a collaborative work environment.
Starting any successful business requires having the right tools, but knowing which ones are right for you can be the challenge. BestVendor surveyed 550 startups, each with up to 100 employees, to find what they have in their kit. The results are in this infographic.
One of the first steps in forming a startup, even before any documents are drafted or signed, is creating a capitalization or “cap.” table illustrating the ownership of the company. As companies grow and issue more stock to raise capital or compensate employees, their cap. tables can…
The second annual SXSW V2Venture pitch competition took place on Wednesday, July 16 in Las Vegas. During this no-holds-barred, Vegas-style pitch competition, a live audience, along with a panel of expert judges, discovered advancements in various sectors of emerging technology. Following the competition, the winning companies were…
In a previous Founder Tip of the Week, I discussed what vesting is. In this Founder Tip of the Week, I will discuss some common vesting schemes. Employees The norm for options granted to employees is that they vest ratably monthly over four years.
Just as an individual founder has their own style when running a company, each has her/his own preferred funding strategy. Check out the infographic below which identifies four funding styles founders typically use to launch and grow their startups.
Every startup begins with an idea, a dream. Once you start, how do you get to your goal? Sifting through all the chatter about what it takes to succeed can be tough, but learning from the experience of other founders still remains a valuable opportunity. Check out this video of career advice from founders on the precipice of remarkable success.
As an entrepreneur, it can be easy to allow the tasks of building a startup to overwhelm you. Do you have work/life balance? Loving what you do and working hard to build your business is critical, but so is taking time to decompress. Here are a few tips to help you find that sweet spot.
To help explain the complexities of the United States Patent & Trademark Office’s new inter partes review (IPR) process, Perkins Coie has developed a short animated video that walks viewers step-by-step through the entire process.
The “Series A Crunch,” which is the significant decline in the number of startup companies per quarter that are completing their first equity financing, appears to be deepening.
We are often asked by founders what they need to include in an executive summary that will be sent to prospective investors and what legal issues are involved.
When starting a new company, it’s easy to focus entirely on the business you are building, but it’s also important to make sure that you see the big picture . Here are three areas to keep covered...
Bitcoin is a hot topic in the startup ecosystem and Perkins Coie remains at the forefront of providing legal service in this space. Check out the latest post on our Virtual Currency Report blog that includes a link to our International Virtual Currency Tracker, a regularly updated chart that provides a quick snapshot of the status of virtual currency regulation in countries around the world.
A nondisclosure agreement (or "NDA") is a contract illustrating how confidential information will be shared and protected by two or more parties.
In a convertible note financing (or an increasingly popular SAFE financing), the change of control premium—the benefit given to a lender if the company has an exit before the notes convert—is an easily overlooked term. This is because it is rarely applicable, especially when the financing is a seed-type investment.
Unfortunately, too often I hear founders say things like “I promised her options for 2% of the company,” or worse, we see statements to that effect in employee offer letters or other agreements. In the worst cases, founders will even expressly agree to issue an investor or service provider a “fixed percentage” of the company’s ownership going forward.
The American Bar Association's M&A Market Trends Subcommittee of the Business Law Section has just published its biannual Private Target Mergers and Acquisitions Deal Point Study. This edition of the Study analyzes 136 publicly filed transactions that closed in 2012. This is a valuable resource for those that are negotiating transaction terms as it provides some empirical data to inform what constitutes "market" for a particular issue.
Nearly every start-up begins in a garage, basement or home office. Some of today’s largest technology companies fall into that category, including Google, Apple, Hewlett-Packard and Amazon. But, at some point hopefully, the start-up outgrows its humble beginnings and needs to lease office, retail or storage space in order to meet consumer demands.
The passing of the JOBS Act created much fanfare, especially given the relaxation of the securities laws with respect to the use of "general solicitations." Notwithstanding the excitement from the blogosphere, the revised rules also come with some hidden costs that make using a “general solicitation” in fundraising less attractive.
Between January and November 2013, more than $531 billion was raised to launch new startup ventures in the United States. But, how much startup funding really comes from VC’s and angel investors? Very little in comparison to the amount of money that most founders invest in their own business.
We recently represented Andreessen Horowitz as lead investor in a $25 Million Series B financing for Coinbase. This represents the largest investment to date in a Bitcoin company and is also significant in that Andreessen Horowitz is among a handful of the most elite VCs in the market.
Lawyers will tell you it’s important to incorporate your company as soon as you possibly can to avoid personal liability and to settle all outstanding matters among the founders. That’s good advice, but the place to start is with a Term Sheet for the incorporation.
The market for initial public offerings continues to heat up. Once your company has selected the managing underwriters for the offering and wants to begin the IPO process in earnest, an organizational meeting with management, the underwriters, counsel and possibly the auditors will be scheduled.
In a prior Founder Tip of the Week we discussed how the Internal Revenue Code (the “Tax Code”) characterizes unvested founder stock as not being purchased until it has vested, and that this characterization can have adverse tax consequences for the founder because the Tax Code treats as taxable income the excess, if any, of the fair market value of stock at the time it vests over the purchase price of the stock (the “spread”).
Founders and executives of mature private companies often underestimate the complexity and lead time of the initial public offering process. The right timing is crucial for a successful IPO so it is critical to be ready to go when the company’s results and capital market windows align.
On September 23, 2013, the Securities and Exchange Commission (SEC) rules permitting general solicitation and advertising of private securities offerings pursuant to the Jumpstart Our Business Startups Act of 2012 (JOBS Act) went into effect.
Perkins Coie’s startupPerColator is kicking off a series to help founders contemplating an initial public offering, or an “IPO,” prepare for this extensive and often complex milestone in the life of their company. An IPO, is the result of a great deal of effort, coordination of resources and resolution of myriad legal and business issues. Below are a few tips on how to start preparing your company today.
Coming up with the right valuation for your company in the beginning can be very tricky. Simply put, valuation is the value of your company. In the early stages of formation the value of your company is most likely close to zero.
Check out our first installment of Founder to Founder Tips featuring “Wise Advice” from TechCrunch Disrupt NY Battlefield company founders.
A new Delaware law, signed on July 17 by Gov. Jack Markell, allows companies to be formed as public benefit corporations (PBCs), which balance stockholders’ returns, the impact on other people affected by a company's business activities, and the creation of an overall public benefit. Starting on August 1, Delaware companies will be able to form or reincorporate as PBCs, or merge with PBCs.
Founders are often reminded, “great companies are bought, not sold” - emphasizing the importance of focusing on the business rather than the exit plan. True enough, but founders can help themselves through an early understanding the levers for buyers in their industry. Knowing that can help entrepreneurs position their companies for a successful sale - and it may also cause them to focus their startup in a different way.
On July 10, the SEC adopted final rules pursuant to Title II of the Jumpstart Our Business Startups Act of 2012 (JOBS Act) that lift the long-standing ban on general solicitation and advertising for private securities offerings under Rule 506 and Rule 144A.
On Wednesday, June 26th, Perkins Coie’s Palo Alto office hosted the startupPerColator event, “What Every Startup Needs to Know.” Lowell Ness, a Perkins Coie partner in the Emerging Companies & Venture Capital (ECVC) practice, moderated a panel which included Herb Stephens of NueHealth, Thomas Huot of VantagePoint Capital, Jennifer Jones of Jennifer Jones and Partners, Yuri Rabinovich of Start-up Monthly, and Olga Rodstein of Shutterfly.
Whether a financing, merger or other acquisition, or other major transaction, parties often outline the major provisions in a non-binding term sheet or letter of intent. A principal benefit of this approach it to help the parties identify major areas of disagreement early to avoid wasted expense on additional diligence and drafting of the definitive agreements.
A corporation is a separate entity with its own liabilities for which the individual owners cannot be held personally liable. It is a concept that is old as dirt and right as rain, right? Surely everyone accepts this basic premise of doing business as a corporate entity? Well, perhaps everyone but the plaintiff’s attorney seeking to hold someone with deep pockets financially responsible for his client’s injuries.
Dilution is a term that is frequently discussed in the context of preferred stock financings. However, it is important to understand that there is a difference between dilution in the general sense and the type of dilution with respect to which preferred stockholders receive protection.
06.06.2013 Tallwave Pitch Event
06.17.2013 Gallery of Serial Entrepreneurs Looking for Their Next Gig
06.26.2013 What Every Startup Needs to Know
Running a successful and profitable company can be an incredibly trying experience that takes dedication, hard work, and sacrifice. If you are thinking of pursuing a venture you are passionate about, it helps to know what challenges you may encounter.
“Pre-money” or “pre-money valuation” is a term that entrepreneurs will hear and use a lot in the context of securing equity financing, so I thought it would be a good idea to make sure entrepreneurs have a clear understanding of it.
In order to grow your business, surround yourself with like minded people and take advantage of every opportunity to learn more about entrepreneurship.
On Thursday, April 4th, Perkins Coie’s Palo Alto office hosted the startupPerColator Series event, “Seed Investments: How to Be Attractive to Early Stage Investors and the "Right" Seed Investment Structure for You.”
To meet growing demand from entrepreneurs and investors to empower entities to sustain a triple bottom line, state legislatures across the nation have been creating new corporate forms that give businesses legal protection to address social and environmental problems. Delaware, however, declined to consider whether to adopt such a corporate structure…until now.
I recently participated in a panel discussion on crowdfunding for biosciences, and I wanted to share some of the ideas we discussed. Although focused on life sciences companies, many of the issues are applicable to tech companies too.
The date of an agreement is an important part of most business transactions and M & A is no exception. Many acquisition agreements begin with an “Agreement between” the parties “effective as of” a given date. Does it matter if this effective date is prior to the date the parties actually entered into the agreement? And if so, is this ‘backdating’ problematic or even potentially illegal?
A commonplace among emerging companies is the need to promise investors seats on the board of directors. For a lot of different reasons, it makes sense to make this promise. It is usually a condition to receiving the investor’s capital, so there’s that.
You've developed your idea into a business. It's taken a lot of sweat and hard work, and there have been more than a few rough spots. Acquirers are now taking note and making inquiries. Maybe investment bankers are courting you. You have arrived!! Well, almost . . . .
Potential investors usually request an "Executive Summary" prior to meeting with new startups. The Executive Summary is a one- to two-page document that covers the aspects of the startup that investors care about most, including the concept, the market need and opportunity, and the startup team.
A business plan is a living document that serves as a blueprint to help you build your company. More than that, a business plan is a tool to help you think hard, and clearly, about what you’re trying to achieve, the market opportunity, the potential threats to success, and how to overcome them. How detailed is your business plan, and how much time you invest in it, are matters of choice. And there are some who question the merits of doing a business plan at all.
Many entrepreneurs are wondering when they will get to take advantage of those parts of the JOBS Act that were heralded as new catalysts for start-up equity financing, particularly those sections of the Act engineered to permit crowdfunding and the advertising of certain private equity offerings under the SEC's Rule 506.
Some interesting stats from The Silicon Valley Bank’s Startup Outlook report based on their survey of private companies across the U.S. in the software, life science, hardware and cleantech sectors. More than 750 companies completed the survey in December 2012.
In response to the question, "What piece of advice would you give to President Obama with regards to supporting the innovation economy," startup executives had this to say:
We have covered in past FTTWs how to value your startup and how much capital to raise. Once your startup decides to pursue equity financing, you should start to prepare for the investor due diligence process. On the business side, you will need to prepare a business plan and should take steps such as obtaining management references, interviews and background reviews, customer/user references, technical/product reviews, financial statements and business model reviews.
“Vesting” is a term of art that is often glossed over by new entrepreneurs as they grapple with other newer and scarier terms to which they are being introduced as they start their companies, like “pre-money valuation,” “fully-diluted capitalization” and “broad-based weighted average antidilution adjustments.” However, I think it is good for entrepreneurs to have a thorough understanding of what vesting means.
Convertible notes are a common structure for private company financings, most often for early stage companies trying to raise $1 million or less (see "Your First Vehicle for Fund Raising: Convertible Notes or Preferred Stock"). Here is a summary of the types of terms for such financings, and a quick primer on what to look out for if you’re considering this type of funding.
Starting a consumer-facing technology company or developing a new application to make a consumer's life easier or more fun is an exciting journey. At this stage, you are all about the development, getting the product or service to market, and making sure it can scale. But neglecting the privacy implications of your product or service during the development stage is a big mistake that will come back to haunt you later.
Imagine, for example, that your dream of building a great company has come true and you are faced with an acquisition offer. During the customary due diligence phase, you quickly discover that your privacy house is not in order. Why?
As founders, you are likely very familiar with the multitude of obstacles that a successful venture must overcome: financing, management, creation and protection of valuable intellectual property, marketing, and building profitable and sustainable customer relationships. Another obstacle that is well known yet rarely labeled as such is “complexity.” In building a new venture, the old adage “keep it simple” remains an important philosophy.
A company's culture is often established in its earliest days. Once ingrained, it can be very difficult to change. Although many founders recognize the importance of infusing a culture of giving into their enterprises, they wonder how they can go about it with limited time and resources. The answer should be apparent to every founder. Early stage companies can meet cultural challenges with the same tactics they use for meeting operational challenges with limited cash. When early stage companies don't have cash, they apply "sweat" or "equity." How do you apply "sweat" and "equity" to establish a culture of giving?
REST. You can’t build a great company if you’re exhausted all the time.
At one time or another, most startup companies work with a consultant or enter a contract with a strategic partner and are presented with a dilemma: should the company offer equity to the consultant or strategic partner in payment for services?
Human behavior and motivation has a critical role in the design of websites. Does the website for your startup cater to your audience and create a pleasant user experience?
Founders should make sure that their companies’ agreements assign intellectual property presently. In other words, an agreement should provide that the assigning party (the “assignor”) “hereby assigns” to the company the intellectual property in question.
One of the most common conversations I have with the founders of businesses involves how they determined a way to split the ownership amongst themselves. It is probably the first difficult decision new partners face together in starting a company. In many instances, the new founders decide that they are going to split ownership equally.
Founding a company can be an overwhelming experience, but for those founders looking to raise capital from angel or venture capital investors, deciding where to incorporate and selecting an entity type are two choices that deserve careful consideration.
After billions of dollars spent on ads, gigabytes of campaign emails and countless hours of productivity put into Nate Silver's polling blog, Election Day is finally here. But don't despair, entrepreneurs – there are plenty of lessons that your startup can take from the campaign trail.
"This deal is standard. Let's close TODAY!!" We've heard this so many times only to find out that the early stage technology start-up hasn't fully protected its intellectual property and, as a result, funding gets delayed, or in some extreme cases, even cancelled.
Sometimes a company will engage a “finder” to help it find financing. I always tell founders that they should confer with the company’s legal counsel when considering whether to engage a finder.
Many startup owners, in the early days as the sole owner, may feel tempted to run “sort of” personal expenses through their corporation on the theory that they have no other owners to harm.
On September 28, 2012, President Barack Obama signed bipartisan legislation extending the EB-5 Regional Center Program for an additional three years.
Some interesting statistics from the Halo Report for the rolling 12 month period ended June 30, 2012.
Negotiating a lease for your company's office or facility can be precarious. Real estate is not your core business, and you do not want to spend tremendous time (or expense) finalizing the lease document. In addition, start-ups and emerging companies without strong financials do not enjoy significant leverage in strong real estate markets.
Practically all websites you visit have a privacy policy. Prior to launching a website, you may wonder whether you need a privacy policy, too. It is extremely likely that you do.
Sometimes, about January, I get an urgent call from a founder telling me that his or her corporation has received a franchise tax bill from the State of Delaware for tens of thousands of dollars.
The vast majority of technology startups are capitalized in the same manner: common stock to the founders, common stock reserved in an option pool for employees and consultants, and preferred stock (Series A, Series B, etc.) sold to investors. However, a small but probably growing percentage of startups consider a more complicated stock structure that includes, in addition to the types of equity above, a special class of common stock reserved for founders.
If there is a ground zero of potential liability, this is it. Cash-strapped federal regulators and states are focusing on misclassification cases with renewed zeal and enthusiasm. And companies, even with the best of intentions, often mischaracterize employees as independent contractors (consultants or advisers). Independent contractors are not subject to wage and hour laws, meaning they don’t need to be paid minimum wage or overtime, are not subject to payroll taxes, and are not entitled to meal and rest periods. Some companies use the “try and buy” approach of hiring a “contractor” for a few months before “converting” him or her to a full-time employee. But companies and contractors are not free to decide what type of relationship they are creating. Federal and state laws alone dictate what constitutes an employee versus an independent contractor relationship.
Founders often seek advice regarding the amount of capital to be raised. The conventional wisdom is to raise sufficient capital to permit the company to achieve a milestone that will result in a material increase in the company's value. The milestone might be...
As a founder of a new company, you're probably overworked, underpaid, and swamped with problems that everyone is looking to you to fix. You probably also have some valuable people working with you and you want to keep them happy and healthy. For small employers, the Affordable Care Act created a tax credit that could make it easier for you to afford to offer health coverage to your employees. Of course, there are limits and conditions (this is an IRS program, after all).
For a start-up company, noncompetition agreements typically arise in one of the following contexts; a founder or new employee entered into a confidential information and inventions assignment agreement (or similar agreement) with his or her former employer that prohibits competing with the former employer, the start-up company wants to prohibit a terminated employee from competing with the company, or in an acquisition, the buyer demands a founder and/or key employee sign a noncompetition agreement.
How does a technology startup determine its valuation? Is it an art, a science or a combination of the two? Does a startup's valuation increase if it has a slick pitch deck and a clever company name? Should a startup use a Ouija board to determine its valuation?
"I think we need about $1,000,000 to $2,000,000 for our first round of funding. Should we use convertible notes or issue preferred stock?" This is one of the most common questions we get from entrepreneurs looking to raise their first round of outside funding. When deciding between convertible notes or preferred stock, consider these key factors.
As a founder of a start-up company, you will likely be spending the bulk of your time refining your business plan, pitching your ideas to VCs and looking for talented and experienced employees to fill out your team. Admittedly, in the early days, you probably won't have much time for anything else, including attending to corporate formalities. However, giving some early attention to establishing and maintaining good corporate hygiene will pay dividends down the road that far exceed the fairly nominal investment required up front, especially when it comes to raising money or gearing up for an ultimate exit, such as a sale of the company or IPO. Here are a few fairly simple things that every start-up should do early in its lifecycle.
We find ourselves explaining 83(b) elections several times a week, so we thought it would be a good blog topic.
In the start-up world, the opportunity to file of an 83(b) election generally arises in the context of a founder purchasing low-priced “founder” common stock of a start-up company that is subject to vesting, or an employee, director or other service provider of such a company “early exercising” an option for stock that is subject to vesting. Such stock is sometimes also referred to as “unvested” stock or stock subject to “reverse vesting.” All this means is that...
The introduction of a disruptive technology leads to the collapse of sales of recorded music. Does this refer to the impact of legal and illegal digital music downloads on CD sales? Certainly.
Advisory boards are powerful tools used by companies at all stages of development. Advisory boards are generally comprised of business leaders, scientists, professionals or other persons of influence. Advisory boards can have general duties, such as providing critical advice and introductions, or they can be more issue-focused, such as advising on specific industry sectors or particular products, transactions or other critical strategic decisions.
Entrepreneurs think big, with visions of iconoclastic products and services that transcend markets. To help these lofty goals, entrepreneurs must learn lessons from innovators in other industries. Today, we turn to the freewheelin' Bob Dylan for some unconventional startup advice.
It is essential for start-up companies to properly characterize their service providers who are individuals (i.e., natural persons) as either employees or independent contractors (i.e., consultants). Among other matters, a company is required to pay payroll taxes and comply with minimum wage and hour laws for its California-based employees but not its contractors.
Starting a company has many challenges—the biggest being how to attract top talent when you are cash-strapped. Many companies solve this by offering equity for services.
On April 5, 2012, President Obama signed the Jumpstart Our Business Startups Act (aka the JOBS Act), which included the cleverly titled Capital Raising Online While Deterring Fraud and Unethical Non-Disclosure Act, or "CROWDFUND Act." The CROWDFUND Act established a securities law exemption (codified at Section 4(a)(6) of the Securities Act) allowing startups to raise funds under conditions that would have previously been considered a general solicitation.
There is no required minimum or maximum number of shares by law that must be issued to founders or reserved in the equity incentive (stock option) pool in a startup. Of course, what does matter is the percentage of the company each individual stockholding represents. A startup may issue 100 shares or 100 million shares at formation, and 50 shares in the former or 50 million shares in the latter still represents 50% of the equity of the startup. A typical equity pool is between 10% and 20% of the total number of shares issued and reserved for issuance.
Perhaps few times for an emerging growth company present more risk than the transition of a founder/CEO to "employee" status. This often happens later in the startup life cycle, when a company has funding and/or sales traction. The difference between a smooth and rocky transition can represent the difference between success and failure of the company.
If there are two or more founders in a startup, an important consideration regarding the initial issuance of equity to the team is vesting of the founders' equity.
It is important for founders and IP owners to be wary of the practice derogatorily referred to as “patent trolling.” This practice occurs when a company that has a patent right, either through development or acquisition, enforces those rights against other businesses in an opportunistic manner and typically without any intention to practice, manufacture or market the patented invention.
When writing your business plan, stay clear, concise and succinct. Follow these three simple guidelines to better make your point to your intended audience.
1. Cut pretense - and acronyms.
2. State your point in the first sentence.
3. Use easy to read formatting.
Raising capital for a new startup can be a daunting task for the founders. There are several types of investors and capital sources for startup projects, including friends and family members, angel investors (high net worth individuals), venture capital funds, corporate/strategic investors, and government grants. Each of these capital sources has different investment criteria and expectations.
To engage potential and current consumers in today's evolving online environment, it is necessary to build a web presence that communicates your company's message and vision in a compelling and effective way. Social media outlets, such as Twitter and other online relationship building tools, can help you develop a bond with your target audience that is built on mutual engagement.
As forecast, on March 27 the U.S. House of Representatives passed the Senate's amended version of the Jumpstart Our Business Startups Act (the JOBS Act), clearing the way for President Obama to sign the bill into law, which he is expected to do in the coming days. The JOBS Act's stated purpose is to spur job creation and economic growth by improving access to capital for emerging growth companies by making some of the most significant changes to the U.S. securities law landscape in over a generation.
Improve the probability of startup success by maintaining maniacal focus on the needs of your customers. A startup may capture disproportionate media attention with aggressive PR, but nothing can replace the power of extremely satisfied customers.
The Jumpstart Our Business Startups (JOBS) Act will most likely be law before the end of next week. The bill that was passed by the U.S. House on March 8 was passed by the Senate yesterday, March 22, with only one amendment on so-called "crowdfunding" (raising funds in small amounts from a large number of investors), and the House is expected to take up the amended bill on Monday for expedited passage and delivery to President Obama, who has signaled he will sign the bill when it reaches his desk.
Is your business making the world a better place but struggling to communicate its public benefit to consumers and investors? Consider filing as a Benefit Corporation or pursuing B Corp Certification to differentiate your company from the crowd.
There is one thing people will always associate with your business - its name. Apple, Patagonia, Facebook, Ford - tech, non-tech, it does not matter. A memorable name can be integral to your brand. And today that brand lives both offline and online, so you should choose a name that is not only evocative of your brand but also is useable online, because the internet drives or touches so much of modern commerce.
Finding top talent is a challenge for any company, but for a startup it is crucial for success. Traditional methods of finding employees have been replaced, unsurprisingly, with online networking and target marketing.
The right attention from the right investor can translate into much-needed financing for your startup. When you communicate your business idea effectively and clearly while highlighting its potential impact on market share, it will resonate with financial backers.
Most founders are not in a position to bootstrap, or solely fund, their way to startup growth and success. Initial product development and market entry is typically funded through external investments, such as common stock financing or venture capital investments.
Making the right connections is important when starting a business. Knowing how to parlay a great idea into a business opportunity that investors will get back is a critical part of building your network.
Starting a business can feel like a roller coaster ride. Learning from the successes and failures of fellow entrepreneurs can help you cope with the highs and lows of business development.
