Introduction
This post was originally part of my “Ask the Attorney” series which I am writing for VentureBeat. Below is a longer, more comprehensive version. Please shoot me any questions you may have in the comments section – or feel free to call me directly at 415-979-9998. Many thanks, Scott
Below is a copy of the letter I just emailed to Senator Dodd’s office with respect to his new financial regulatory reform bill and its material adverse effect on angel investments.
Introduction
This post is part of a new series entitled “Ask the Attorney,” which I am writing for VentureBeat (one of my favorite websites for entrepreneurs). As the VentureBeat Editor notes on the site: “Ask the Attorney is a new VentureBeat feature allowing start-up owners to get answers to their legal questions.”
The goal here is two-fold: (i) to encourage entrepreneurs to ask law-related questions regardless of how basic they may be; and (ii) to provide helpful responses in plain english (as opposed to legalese).
As I mentioned in a recent post, one of things that surprised me when I moved to Southern California from New York City in 2005 was the lack of sophistication of some of the players in the so-called “middle market.” Indeed, I was particularly surprised to see so many investment bankers and other intermediaries running around and raising capital for private companies without being registered as a “broker-dealer” with the Securities and Exchange Commission (the “SEC”). As I have previously discussed (see mistake #4 here ), this is a huge potential problem for the issuer, particularly in light of the recent changes to SEC Form D. Accordingly, I thought it would be helpful to entrepreneurs to provide them with a basic understanding of the new, revised Form D and related securities laws via a question-and-answer format. (more…)
Below are ten tips for entrepreneurs who are launching a start-up that will seek venture capital (“VC”) financing.
1. Protect Yourself from Personal Liability. The entrepreneur’s first step in connection with launching a start-up should be to form an organization that will protect against personal liability. As discussed below, a Delaware C-corporation is the structure that VC investors will generally require; however, if a financing is not imminent, it may be prudent for the entrepreneur to form an S-corporation or a limited liability company to obtain “pass-through” tax treatment (and then convert the entity to a C-corporation down the road, if necessary) to take advantage of the company’s initial losses, if applicable. The bottom line is that the entrepreneur should seek the advice of counsel in connection with the formation of any business organization, including the advice of tax counsel (e.g., shareholders in S-corporations — as opposed to C-corporations — are not eligible for the “qualified small business stock” capital gains tax break; and losses in C-corporations may be deductible up to $50,000/yr. or $100,000/yr. on a joint return with respect to “Section 1244 stock”). (more…)
