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Top 7 “Gotcha” Provisions For Investors To Watch Out For In Convertible Notes

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Bend Law Group has helped close dozens of seed rounds for startups raising investment capital, the vast majority of which are still completed using convertible notes. Here are the top seven provisions investors should be on the lookout for when negotiating convertible notes with startups. 1.  Prepayment Of The Note Some convertible note documents allow… Read More

Bend Law Group has helped close dozens of seed rounds for startups raising investment capital, the vast majority of which are still completed using convertible notes.

Here are the top seven provisions investors should be on the lookout for when negotiating convertible notes with startups.

1.  Prepayment Of The Note

Some convertible note documents allow the startup to prepay the convertible notes.

An investor nightmare is to pick a winner, but the startup prepays the note before the note converts and the investor misses out on the company’s upside. Instead, the convertible note should provide that it may only be prepaid with the consent of the holders of at least a majority of the outstanding principal amount of notes.

2.  Most Favorable Investor Provision

If the company offers better terms to other investors, you should also benefit from those terms. You can do so by adding in a provision that provides any changes in the terms of the convertible notes that are more favorable to investors shall automatically apply to all of the notes.

3.  Cap On Conversion Price, aka the “Instagram Provision”

Most convertible notes provide a 20% discount if the note converts into equity compared to the price paid by the next round of investors. This conversion discount is intended to reward the risk early stage investors take for supporting the company.

However, if the company really takes off, even after a 20% discount the seed stage investment might not translate into a significant stake in the company. For example, a $25,000 seed stage investment in Instagram without a conversion cap would only have translated into a very small equity stake because the company was valued so highly at the next round of investment.

A conversion cap helps to align the incentives for the founders and the seed investors to seek as high a valuation as possible in the next round. To make sure your seed stage investment still converts into a fair equity stake, the convertible note should include a conversion cap.

4.  Sale Of The Company

Some convertible notes provide that an investor will only be repaid their investment amount plus accrued interest if the company is sold before the note converts.

If you invest in a startup that is purchased before the note converts you should be adequately rewarded.

Instead, you include a provision that provides that the investor will get 1.5 or 2 times a return on the initial investment if the company is sold before the note converts.

5.  Voluntary Conversion

Most convertible notes do not convert by the note’s maturity date. It is important to bake in a provision that provides the investor with the option to still have the note convert into equity at the maturity date at an agreed upon conversion price.

6.  Right to Invest

One incentive to act as a seed investor is to be on the inside of a new company, and hopefully this “insider” status will give you the ability to invest more later if the company takes off. However, these investment rights are not automatically guaranteed, and if a company is hot then there will be plenty of other investors ready to buy during the next round.

Guarantee your right to invest later by adding a Right of First Offer provision into the convertible note, so that you are informed of and given the chance to participate in all equity offerings.

7.  Warranties and Representations

Just as important as the above economic provisions is including strong warranties and representations to kick the tires of the company. You would, for example, certainly want to dig deeper if a company is not willing to include a warranty and representation that there are no threatened or pending actions against the company.

Every set of convertible note agreements is different and so you should consult with your legal counsel prior to making an investment. However, the above list is a good starting point to make sure that the risks of investing in an early stage startup pays off it the startup becomes successful. If you have any questions, give Bend Law Group a call at (415) 633-6841 or email at info@bendlawoffice.com.

By Doug Bend and Luthien Niland.

Disclaimer: This article discusses general legal issues and developments. Such materials are for informational purposes only and may not reflect the most current law in your jurisdiction. These informational materials are not intended, and should not be taken, as legal advice on any particular set of facts or circumstances. No reader should act or refrain from acting on the basis of any information presented herein without seeking the advice of counsel in the relevant jurisdiction.  Bend Law Group, PC expressly disclaims all liability in respect of any actions taken or not taken based on any contents of this article.

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How to Change Your Company Name

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By Luthien Niland Do you want to change your company’s name? If your company name is outdated, too complicated, or needs to be changed for some other reason, you must change the name with all government and other entities that have your current name on file. Not only is this important for proper name recognition,… Read More

By Luthien Niland

Do you want to change your company’s name? If your company name is outdated, too complicated, or needs to be changed for some other reason, you must change the name with all government and other entities that have your current name on file. Not only is this important for proper name recognition, but legally you cannot conduct business or sign contracts under a name that is not properly registered.

If you simply want your business to go by an additional name, but you are happy keeping the current legal name on record, you can simply register a new DBA with the county. If you want to change the legal name of the company, however (for example, when “Jerry’s Guide to the Worldwide Web” decided it made more sense to be named “Yahoo”), then the checklist below is a good starting point.

1.  Internal Approval

Changing the entity’s name typically requires approval from the decision makers of the organization. This means amending the Articles of Incorporation for a corporation or the Articles of Organization for an LLC. The bylaws or operating agreement of the entity should describe the approval process.

2.  California Secretary of State

Next the name should be changed with the California Secretary of State by filing either a Restated Articles of Incorporation or Restated Articles of Organization. This will legally change the name of the entity if it was formed in California.

Note for Delaware entities: If the entity is a Delaware corporation or LLC that is qualified to do business in California, the name must be changed in Delaware first.

To do this, file a Certificate of Amendment to the Certificate of Incorporation (or Certificate of Formation for LLCs). Once the name change is processed, request a “Certificate in RE: Name Change Amendment” using the Corporate Certificate Cover Memo, and submit this Certificate with a signed Amended Statement by Foreign Corporations to the California Secretary of State.

3. IRS

In many cases changing an entity’s name will not require a new EIN, but check IRS Publication 1635 to be certain.

If a new EIN is not required, the entity name may be changed when filing the tax returns for the business, or you can send a letter to the IRS stating the name of the company has been legally changed that includes: a copy of the endorsed Amendment to the Certificate of Incorporation (or Formation), the company’s FEIN, and a mailing address where the IRS can send a confirmation of receipt. The letter must be signed by an LLC manager or corporate officer.

4. Board of Equalization

If the business sells tangible goods in California, the entity must obtain a seller’s permit. As long as only the entity name is changing, not the entity type, you should file the BOE-345 form. If the entity type also changed, you must obtain a new Seller’s Permit and file a Close of Business form with the BOE.

5. Employment Development Department

You can change the entity name with the EDD by logging into your online account and updating your account with the name change.

6. City and County Registrations

The city business license should be updated with the new business name. Contact the city where you business is located to determine what forms must be filed to update the license.

To change the name of a business that registered a fictitious business name (DBA), a new fictitious business name statement must be filed with the county and published in a local newspaper. Contact the county where the business is located for filing instructions.

7. Miscellaneous Organizations

After you have legally changed the name in the entity’s state of incorporation, don’t forget to also change the name with business service providers (i.e. banks, credit cards, payment processing accounts, etc.) and online business listings (i.e. Yelp, Facebook).

For many companies these are the steps necessary to change your business name, but please contact us at (415) 633-6841 or info@bendlawoffice.com to make sure no additional steps are required as each situation is unique.

Disclaimer: This article discusses general legal issues and developments. Such materials are for informational purposes only and may not reflect the most current law in your jurisdiction. These informational materials are not intended, and should not be taken, as legal advice on any particular set of facts or circumstances. No reader should act or refrain from acting on the basis of any information presented herein without seeking the advice of counsel in the relevant jurisdiction.  Bend Law Group, PC expressly disclaims all liability in respect of any actions taken or not taken based on any contents of this article.

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How Does Minimum Gain Chargeback Work?

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Nonrecourse Debt What is minimum gain chargeback? Many LLCs finance acquisitions of property with nonrecourse debt. When this occurs, the economic risk to individual members is limited to their cash investment and any portion of the loan for which they may be personally liable. We use the term “economic risk” because if the LLC were… Read More

Nonrecourse Debt

What is minimum gain chargeback? Many LLCs finance acquisitions of property with nonrecourse debt. When this occurs, the economic risk to individual members is limited to their cash investment and any portion of the loan for which they may be personally liable.

We use the term “economic risk” because if the LLC were to walk away from the debt, the nonrecourse nature would leave each member at a loss only to the extent of their cash investment in securing the loan. Therefore, allocating a depreciation deduction to each member lacks economic effect unless it accurately reflects a corresponding economic burden to the member.

Minimum Gain Chargeback

This is where minimum gain comes into the picture. Because an allocation of a nonrecourse deduction lacks economic effect, the regulations will only allow such allocation if the tax payback is accomplished through a “minimum gain chargeback” (Reg. Sec. 1.704-2(f)(1)). A minimum gain chargeback is a provision within the operating agreement requiring the LLC to allocate minimum gain to those members who previously were allocated nonrecourse deductions.

Example

A good way to think of minimum gain is this: any excess of the nonrecourse liability over the adjusted basis of the property that secures the debt results in a minimum gain situation. In other words, an LLC is only in a minimum gain situation if they were to dispose of the property and the debt exceeds the adjusted basis.

For example, assume member A and member B form an LLC to acquire property they plan to fix up and sell. Both contribute $50,000 to the LLC, which they use to secure a $1,000,000 piece of property (down payment of $100,000 and $900,000 as a nonrecourse loan). Let’s also assume no principal payments are due on the loan for 5 years.

In year one the LLC is permitted to take a $50,000 depreciation deduction, which is allocated 50/50 to each member. Do we have a minimum gain situation? No. In year one the LLC would not realize minimum gain because if the property was disposed for full satisfaction of the nonrecourse debt ($900,000) its amount realized would not exceed its adjusted basis ($950,000).

Now in year two the same $50,000 depreciation deduction occurs. Do we have minimum gain? We still do not, as the debt ($900,000) does not exceed the adjusted basis ($900,000).

How about in year three if the LLC takes another $50,000 deduction allocating the deduction 50/50 to each member? Yes! Now the debt ($900,000) exceeds the adjusted basis ($850,000).

In Conclusion…

Minimum gain is a neutralizing provision that permits a member to receive a tax benefit in a year despite the benefit lacking economic effect (i.e., the member has no economic risk if the property goes under due to the loan’s nonrecourse nature). However, to offset the benefit the taxpayer receives, a minimum gain chargeback provision within the operating agreement requires the member to have a tax burden based on the amount of allocation they took below the adjusted basis if the property were to be disposed. In our example above, if the property were sold after year three the chargeback would be $50,000, which is the amount of nonrecourse debt that exceeded the adjusted basis.

As you can see, minimum gain can be tricky. However, for many LLCs the benefits can certainly outweigh the risks. It is important to ensure you talk to a tax professional and an attorney when putting together an operating agreement as typical boilerplate language may not cover your unique situation.

For question or comments about this article, or to talk through your particular situation, please call us at (415) 633-6841 or email us at info@bendlawoffice.com

Disclaimer: This article discusses general legal issues and developments. Such materials are for informational purposes only and may not reflect the most current law in your jurisdiction. These informational materials are not intended, and should not be taken, as legal advice on any particular set of facts or circumstances. No reader should act or refrain from acting on the basis of any information presented herein without seeking the advice of counsel in the relevant jurisdiction.  Bend Law Group, PC expressly disclaims all liability in respect of any actions taken or not taken based on any contents of this article.

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Even Business Partners Need a Prenup

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What is a buy-sell agreement, and why is it so important? By Doug Bend  This post first appeared on Nerd Wallet’s Advisor Voices.  Many entrepreneurs decide to launch a small business because of the vision and passion they share with a longtime friend or colleague who becomes their business partner. But as with virtually any… Read More

What is a buy-sell agreement, and why is it so important?

By Doug Bend 

This post first appeared on Nerd Wallet’s Advisor Voices. 

Many entrepreneurs decide to launch a small business because of the vision and passion they share with a longtime friend or colleague who becomes their business partner.

But as with virtually any marriage or relationship, things can change, and you need to be prepared for that possibility – before the honeymoon is over.

A buy-sell agreement is a legal contract between the co-owners of a company that addresses a variety of business-changing events, such as if an owner dies, retires, becomes disabled, or is booted out of the company.

When Things Get Rocky

Just like a prenuptial agreement, a buy-sell agreement is a roadmap that can be used if one or more partner decides to change course. Often, the agreement is drafted at a time when all parties are on friendly terms and in sync on the business’s direction. This lessens the chance of a dispute if things turn sour or tragedy strikes.

When putting together a buy-sell agreement, the parties must decide which events will fall within the scope of the agreement and how each event will be handled.

Two of the more common triggering events include the death or permanent disability of a partner. Even a successful business may lack the cash necessary to buy out an owner’s interest after an unexpected death or disability.

In an effort to plan ahead, owners will often take out life and disability insurance policies on business partners. This way, if one becomes disabled or dies, the remaining owner or owners will have the necessary funds to buy out the partner’s interest.

An effective buy-sell agreement outlines how this will take place. In the absence of a buy-sell pact, a deceased partner’s ownership interest would pass to his or her estate, and the remaining owner could face a long and complicated legal process.

Other important provisions in a buy-sell agreement include how each owner’s interest will be valued and what procedures will be in place if one owner decides to sell voluntarily.

What Needs To Be Spelled Out in the Buy-Sell Agreement

An ownership interest in an LLC or a corporation is considered personal property, which means it can be transferred freely as long as there are no provisions to the contrary in the company’s charter documents or imposed by law.

Having restrictions that force the departing owner to first offer his or her interest to the remaining owners provides a mechanism to ensure the ownership of the company stays in the hands of a select few.

For the agreement to achieve its basic objectives, the percentage of the company that each person owns—and the purchase price of each partner’s share—should be clear and unambiguous.

An effective valuation procedure should provide a means for determining the purchase price of a departing owner, whether the value is defined as an agreed-upon amount by the owners, a formula or through a method using a third party.

There are some factors to consider when drafting a buy-sell agreement. Here are a few key points for your company’s attorney, accountant, and business partners to consider.

  • What are the potential sources of funding for purchasing an ownership interest?
  • Which partners will be included in the buy-sell agreement?
  • Will installment payments be considered for the purchase of an ownership stake?
  • How will the valuation process for each ownership stake be determined?

The final terms can vary depending on a number of factors, including the size and financial condition of the company, the health of the owners and the individual preferences of the partners.

Taking the time to plan now can help you avoid major headaches and disputes down the road. For more information on how you can plan ahead for your business, please contact us at info@bendlawoffice.com.

Disclaimer: This article discusses general legal issues and developments. Such materials are for informational purposes only and may not reflect the most current law in your jurisdiction. These informational materials are not intended, and should not be taken, as legal advice on any particular set of facts or circumstances. No reader should act or refrain from acting on the basis of any information presented herein without seeking the advice of counsel in the relevant jurisdiction.  Bend Law Group, PC expressly disclaims all liability in respect of any actions taken or not taken based on any contents of this article.

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B Corp Leadership Development Conference

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This week I had the privilege of attending the B Corp Leadership Development Conference (“BLD”) at the David Brower Center in Berkeley, CA. The conference was put on by the team at B Labs with the intent of sharing best practices, key performance indicators, and other developments that are occurring within the community. B Corps… Read More

This week I had the privilege of attending the B Corp Leadership Development Conference (“BLD”) at the David Brower Center in Berkeley, CA. The conference was put on by the team at B Labs with the intent of sharing best practices, key performance indicators, and other developments that are occurring within the community.

B Corps are certified by the nonprofit B Lab to meet rigorous standards of social and environmental performance, accountability, and transparency. Today there are over 1,000 certified B Corps (75 in SF alone, including Bend Law Group), all who strive to redefine what it means to be a successful business.

For those who were unable to attend, here are my thoughts and takeaways from the B Corp Leadership Development Conference:

The “Why” of Your Work

People care a lot more about why you do something, as opposed to simply what you do. This is the heart of good marketing. Informing your audience why you act a certain way helps humanize the business process and creates potential lasting connections with clients.

We were challenged to answer “why do you exist as a business”? Here’s my response for BLG: To bridge the gap between entrepreneurship and legal services. Too often we look to our service providers as exterior help that perform a specialized task separate from the core factors that make a business successful. We exist to show a different path as a firm that pivots and innovates as much as its clientele. We exist to move the needle in legal services in such a way that it’s easier for our clients to feel a part of the process and not experience a break in the business strategy that got them to where they are.

B Corp Certification

We heard an inspiring story from Fireclay Tile around their journey to become a B Corp. It reminded all of us how rigorous and rewarding it can be to pass the assessment. Ryan Honeyman, the author of the The B Corp Handbook, shared a list of helpful tips including which areas of the B Corp assessment test were the most impactful. For anyone considering the certification I highly recommend his consulting services.

Blending Purpose and Profit

After an inspiring talk from Plum, and One World Play Project, I was reminded that if your number one focus is your purpose, you’re probably best suited to be a non-profit. Similarly, if your number one goal is profit, a traditional business structure such as an LLC or corporation is a great fit. However, for those looking to blend purpose with profit, a benefit corporation is a great vehicle.

Financial Benefits

This conference reiterated the financial value that comes from being part of the community. I’ve been able to save 10% on tuition for the LLM I’m seeking in tax at Golden Gate University School of Law (close to $1,000 since we joined a year ago). Other great vendors such as A to Z wines provide awesome discounts on their products. I could write a short novella on the other vendors involved, but it was a helpful reminder that there are perks that have made our wallet a little fuller over the past year.

Work/Life Balance

Every business is a family business. The work we do bleeds into our personal lives and impacts how healthy our relationships are at home. Finding an environment that supports your personal values can pay huge dividends for enhancing your work life balance.

Obtaining the B Corp certification isn’t right for everyone, but for those interested in rethinking the ways we use business to impact our community and workplace, a B Corp just may be the perfect fit.

#BtheChange

Disclaimer: This article discusses general legal issues and developments. Such materials are for informational purposes only and may not reflect the most current law in your jurisdiction. These informational materials are not intended, and should not be taken, as legal advice on any particular set of facts or circumstances. No reader should act or refrain from acting on the basis of any information presented herein without seeking the advice of counsel in the relevant jurisdiction.  Bend Law Group, PC expressly disclaims all liability in respect of any actions taken or not taken based on any contents of this article.

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Should I Remain a Sole Proprietor?

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Virtually every business owner faces the question of whether to remain a sole proprietor or form a legal entity. Here are a few of the key factors to consider. Formation Costs and Business Operations A sole proprietorship is an informal ownership structure that requires very little in terms of formation or maintenance. When transacting business… Read More

Virtually every business owner faces the question of whether to remain a sole proprietor or form a legal entity. Here are a few of the key factors to consider.

Formation Costs and Business Operations

A sole proprietorship is an informal ownership structure that requires very little in terms of formation or maintenance. When transacting business as a sole proprietor you must obtain the applicable city, county, and state licenses, but it is relatively simple and straight forward to properly start and maintain a sole proprietorship.

In contrast, more sophisticated entity structures such as a Limited Liability Company (“LLC”) or corporation have more stringent registration obligations. Additionally, they require internal corporate governance documents such as an operating agreement (for an LLC) or bylaws (for a corporation).

Liability Exposure as a Sole Proprietor

As a sole proprietor, you and your business are considered one and the same. Thus, as a sole proprietor, you are exposed to unlimited personal liability for all business liabilities and obligations. This means your personal assets may be at risk to satisfy an outstanding business debt or obligation.

Properly formed and maintained LLCs or corporations provide limited liability protection, so your personal assets are considered separate from the business assets. For example, if you form a legal entity with limited liability protection and the business defaults on a loan that you have not personally guaranteed, the creditor’s sole recourse would be to look for collection of the debt from the business assets. They cannot access the personal assets of the business owner.

Combining Resources

If two parties decide to start a business the legal classification is a “general partnership”. The risk of a general partnership is that both partners are liable not only for their own actions, but also for the actions of the other partner. To limit this risk, prudent investors seek out entities with limited liability protection to avoid this exposure.

Even if you intend to remain the sole owner of your business, life happens and circumstances change. By forming a strategy to limit your personal liability early on, you are creating a vehicle that is attractive to outsiders who otherwise might not consider your project.

Taxes

A single member LLC or an S-Corp is taxed as a “pass through” entity. A pass through entity essentially means the profits, losses, and other tax attributes flow through to the owner without any federal taxation occurring at the entity level.

The challenge in California is LLCs and entities that have elected to be taxed as an S corporation are treated differently when calculating the California annual franchise tax. A California entity that has elected to be taxed as an S corporation must pay 1.5% of the net income of the business as its annual franchise tax; a California LLC’s annual franchise tax is based on the company’s gross receipts.

This distinction can be crucial depending on the revenue of the business. In particular, if a business uses a lot of inventory but has relatively small margins, it can be more tax advantages for the business to elect to be taxed as an S corporation rather than as an LLC. For example, if a car dealership has a net income of $150,000, but gross sales of $1,100,000, if it elects to be taxed as an S corporation it would owe $1,500 in California franchise taxes. However, if it were a standard LLC, it would owe $6,500 in California annual franchise tax. 

It’s always important to consult a tax professional when determining which legal entity to select for your business because, as the example above illustrates, you might owe varying amounts of taxes depending on which you select.

Other Considerations

In talking to clients we’ve found that some have really enjoyed a marketing bump by forming a legal entity. For example, if a prospective customer receives a proposal from ABC Inc., they might reasonably assume that it was produced by a shop of 5-10 people, even if it’s really one owner and occasional contractors supporting the business. In contrast, if a customer receives the same proposal from just ABC with no “LLC” or “Inc.” at the end, they might not view the business as a “real business.” Instead, they may assume it is a mom-and-pop shop or a fly by night operation that is not worth paying fair market rates.

Additionally, it should be noted that for liability protection to remain intact, it is important to follow corporate formalities when maintaining your entity. This means ensuring you always sign contracts on behalf of the company, and not in your individual capacity. It’s also crucial that you file your annual franchise taxes on time and that you send in forms such as the Statement of Information when they are due. This helps to ensure no one can claim “Well, Bob wasn’t really operating as an LLC and so we’d ask the court to not provide Bob with limited liability.”

As a sole proprietor there are a lot of factors to consider, and you’re strongly advised to seek out the opinion of a legal and tax professional before acting. Crafting a strategic plan for where you are heading is key to understanding if you’re exposing yourself to unnecessary liability, and if you’re missing out on an opportunity to best set yourself up for success down the line.

Disclaimer: This article discusses general legal issues and developments. Such materials are for informational purposes only and may not reflect the most current law in your jurisdiction. These informational materials are not intended, and should not be taken, as legal advice on any particular set of facts or circumstances. No reader should act or refrain from acting on the basis of any information presented herein without seeking the advice of counsel in the relevant jurisdiction.  Bend Law Group, PC expressly disclaims all liability in respect of any actions taken or not taken based on any contents of this article.

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CA FRANCHISE TAXES ARE DUE APRIL 15TH

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Franchise taxes are due by April 15th of each year for most entities doing business in California. Corporations incorporated or doing business in California, and LLCs and Limited Partnerships electing to be treated as corporations for tax purposes, must pay this tax. Additionally, it is due regardless of whether the entity is active, operates at… Read More

Franchise taxes are due by April 15th of each year for most entities doing business in California. Corporations incorporated or doing business in California, and LLCs and Limited Partnerships electing to be treated as corporations for tax purposes, must pay this tax. Additionally, it is due regardless of whether the entity is active, operates at a loss, or does not conduct business. Some qualified corporations, including corporations in their first year of business, are exempt from this tax (for more information see this blog post).

Calculating Estimated Franchise Tax

The minimum franchise tax is $800. Corporations can calculate their estimated tax by multiplying their estimated net income by the applicable rate (i.e. C Corporations: 8.84%, S Corporations: 1.5%).

Payment of Estimated Franchise Tax

If the amount of the estimated tax does not exceed the minimum franchise tax of $800, the $800 is due by April 15th. If the amount of the estimated tax exceeds $800, the estimated tax can be paid in the following installments:

  • 30% for the first installment, due April 15th;
  • 40% for the second installment, due June 15th;
  • No estimated tax payment is required for the third installment, due September 15th;
  • 30% for the third installment, due December 15th.

The estimated tax amount can be paid online here. It can be paid by check or money order by mailing in this form (corporations) or this form (LLCs) to the California Franchise Tax Board.

Effect of Payments

The paid estimated taxes are considered a prepayment of the tax due at the end of the year, and can be claimed as a credit when filing the corporation’s state tax return. Since the taxes paid are based on estimated net income, any overpayment will be credited towards the first payment in the following year.

This article discusses general issues surrounding franchise taxes within California. You are encouraged to speak with a business attorney or CPA to discuss your specific situation. For all inquiries please contact us at info@bendlawoffice.com or (415) 633-6841.

Disclaimer: This article discusses general legal issues and developments. Such materials are for informational purposes only and may not reflect the most current law in your jurisdiction. These informational materials are not intended, and should not be taken, as legal advice on any particular set of facts or circumstances. No reader should act or refrain from acting on the basis of any information presented herein without seeking the advice of counsel in the relevant jurisdiction.  Bend Law Group, PC expressly disclaims all liability in respect of any actions taken or not taken based on any contents of this article.

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