Founder Tip
of the Week

Innovators Wanted

Big ideas, Bite sized. Welcome to the Founder Tip of the Week.

Surprise! Interns are Likely Employees.

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…

The Delaware Franchise Tax: Don’t Freak Out

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…

Angel Investors – Understanding Your Target

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…

Primer on California Proprietary Information and Inventions Agreements

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…

Maintain the Limited Liability Shield

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…

Term Sheets – Potential Traps for the Unwary

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,…

Patents Are Important to Startups

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,…

Privacy and Advertising: Self-Regulation 101

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…

Five Steps for Collecting Stockholder Consents by Email

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…

Options – Structural Elements

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…

Top 5 Insurance Products for Startups

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…

Protect Your Earnout

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…

Top 5 Privacy Tips for Startups

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…

Taking the Haircut

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…

Writing an Executive Summary

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 Business Plan For Your Life (And Your Death)

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.

Identifying Employees for Your Startup

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.

Anatomy of a Startup Cap. Table

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…

How to Prepare for and Win a Pitch Competition

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…

Startup Funding 101

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.

Have You Got Game?

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.

The Dilemma of the Work-Life Balance

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.

Tracking International Virtual Currency Developments

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.

The Double Edged Sword: Why Founders and Investors Should Avoid Fixed-Multiple Change of Control Premiums in Convertible Note Financings

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.

The Problem With Percentages

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.

2012 Private Target Mergers and Acquisitions Deal Point Study

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.

Bitcoin Tipping Point

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.

Do I need to file a Section 83(b) election if vesting is imposed on my stock after it has been issued?

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”).

IPO? What You Need To Know

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.

Get to Know the Delaware Public Benefit Corporation

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.

Understand Your Exit Options Early: Despite What They Tell You

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.

What Every Startup Needs to Know

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.

Include a Capitalization Table in the Term Sheet

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.

Three Steps to Limit Liability and Avoid Veil Piercing

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.

Term Sheet Basics – Dilution

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.

Common Startup Struggles

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.

“Backdating” In M&A?

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?

The Great Business Plan Debate

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.

What Happened to the JOBS Act?

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.

Startup Outlook Stats

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:

How to Prepare for an Equity Financing

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 Basics – What is vesting?

“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.

Basics Of Convertible Note Financings

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.

Privacy by Design

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?

Old Advice is Good Advice – Keep it Simple

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.

Establish a Culture of Giving

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?

Startup Lessons from Election Day 2012

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.

Special Classes of Founders Stock

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.

Classifying Employees: Independent Contractors Or Exempt

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.

Health Insurance Tax Credit for Small Employers – Do You Qualify?

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).

Post-Employment Noncompetition Obligations Are Generally Unenforceable In California

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.

Maintaining Good Corporate Hygiene

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.

83(b) Election Basics

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...

How to Use an Advisory Board

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.

Startup Lessons from Bob Dylan

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.

Going Back to Cali: The Pitfalls of Contracting for Works Made for Hire From Consultants in the Sunshine State

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.

Crowdfunding: Don’t Give Up on Accredited Investors

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.

Back to Basics: Consider the Number of Shares to be Issued When You Form Your Startup

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.

Changing Roles: From Founding CEO to “Employee”

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.

IP Owners Beware

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.

Conduct Research on Potential Investors

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.

Developing Your Social Media Presence

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.

JOBS Act Heralds New Era for Startup and Emerging Growth Company Financing

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.

Senate Passes JOBS Act; Big Changes in Startup and Growth Financing on the Horizon

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.

Benefit as a Benefit Corporation

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.

Selecting a Name for Your Startup

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.