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Our private company clients often ask what kind of revenue or EBITDA multiple ranges they can expect upon a sale or when determining their enterprise value in connection with a financing. This is always a tricky question as value is driven by ever-changing supply and demand and then-current market conditions. Moreover, with yet-to-be-profitable startups, substantial value often lies with their IP, team and/or future prospects.  Accordingly, for a startup, the answer to this question is subjective at best. With that said, one of the better resources I have found for…
Continue Reading Current trends on deal multiples (Q1 2017)

From our colleagues Carla Small, Jim Halpert and Anne Kierig

Governor Andrew Cuomo has announced final cybersecurity rules for New York’s financial services sector.

The Cybersecurity Requirements for Financial Services Companies (the Final Rule), promulgated by the New York Department of Financial Services, is the most specific cybersecurity regulation in the country to apply to companies that are not critical infrastructure operators.

They apply to all New York-licensed financial services companies including banking, insurance and money transmission business lines, with very limited exceptions.

Read more here.

 
Continue Reading NYDFS Announces Final Cybersecurity Rules for Financial Services Sector

Below are three charts compliments of J.Thelander Consulting and PitchBook that illustrate the dilutive impact over time of venture funding on founder ownership levels. These charts are the result of J.Thelander Consulting’s venture-backed private company ownership survey – and divided by industry (biotechnology, medical device and technology). Read the full article here.

While these charts are directionally helpful, each company will of course have its own set of facts. In my experience, the main drivers of founder dilution are often:

  • the size of the founder team;
  • how long the

…
Continue Reading The dilutive impact of VC funding on founder ownership

Yesterday the SEC adopted rules intended to facilitate intrastate and regional securities offerings.  The SEC made general updates and modernized old Rule 147, the safe harbor exemption for intrastate securities offerings under Section 3(a)(11) of the Securities Act. The SEC also adopted a new exemption in Rule 147A, which differs from Rule 147 primarily in that it expressly permits general solicitation and does not require the issuer to be formed in the same state as its principal place of business and investors.  This should allow Rule 147A to work more effectively with state-level crowdfunding exemptions.  (We have previously blogged about the challenges of crowdfunding under Rule 147.)

The SEC also revised Rule 504 to increase the aggregate offering amount limitation from $1m to $5m and to add “bad actor” disqualifications (aligning it with recent updates to Rule 506). In addition, the SEC repealed the little used and now largely redundant to Rule 505.

These rules have various effective dates tied to publication of the rules in the Federal Register, which will likely occur next week:

  • Revised Rule 147 – 150 days after publication in the Federal Register
  • New Rule 147A – 150 days after publication in the Federal Register
  • Revised Rule 504 – 60 days after publication in the Federal Register
  • Repeal of Rule 505 – 180 days after publication in the Federal Register

Continue Reading New SEC exemption rules for intrastate and regional offerings

By Tyler Hollenbeck and Cisco Palao-Ricketts

Although there a number of web resources regarding the distinctions between “incentive stock options” (ISOs), which can only be granted to employees, and “non-statutory options” (NSOs)[1], which can be granted to employees, directors and consultants, these resources are often heavy with tax jargon that is difficult to understand.  To help entrepreneurs focus on what should be most important to them, we have put together the below quick reference guide[2].

I.  TAX CONSEQUENCES – TO THE INDIVIDUAL

A.  NSOs

  • At date

…
Continue Reading Understanding the differences between an ISO vs. NSO

One of the more important tax decisions founders of early-stage companies will face is whether or not to make an election under Section 83(b) of the Internal Revenue Code for stock awards or other acquisitions of shares subject to vesting. By making this decision promptly upon acquiring the shares, founders can avoid missing the 83(b) filing deadline and protect themselves from significant tax consequences down the line. Below, we have set out six of the most commonly asked questions by our clients:

1) What is a Section 83(b) election?

Section 83(b) of the Internal Revenue Code allows founders, employees and other service providers to accelerate the time for determining taxable income on restricted stock awards or purchases subject to vesting. A Section 83(b) election is made by sending a letter (a sample form can be found here) to the Internal Revenue Service requesting to be taxed on the date the restricted stock was granted or purchased rather than on the scheduled vesting dates.

Founders that decide to make an 83(b) election need to do so promptly to ensure that they do not miss the 83(b) filing deadline. An 83(b) election must be filed with the IRS within 30 days after the grant or purchase date of the restricted stock. The last possible day for filing is calculated by counting every day (including weekends and holidays) starting with the day after the grant date.
Continue Reading A Founder’s Guide to Making a Section 83(b) Election

Deciding on the name for your to-be-formed company can be a stressful process given the seemingly endless number of possibilities and the limited legal requirements. Whether you have brainstormed a robust list of potential names and are having difficulty taking the final plunge, or are just now starting your search for the perfect name, we believe the practical considerations and legal overview below may be helpful to both new and experienced entrepreneurs alike when it comes to navigating the name selection process.

What is a corporate name?

The commonly used term “corporate name” is a bit of a misnomer, as certain state naming requirements apply to non-corporate entities as well. As most entrepreneurs are likely aware, entities must adopt an official name at formation that complies with certain state-specific legal requirements.  While the requirements for legal names tend to vary in minor ways state-by-state, there are two basic requirements that will need to be considered regardless of the entity’s state of incorporation:

  1. A corporate name must always include an expressly authorized “suffix” (often referred to as an “entity designator” or “entity indicator”) indicating the company’s entity type and limited liability status; and
  2. The proposed corporate name must be distinguishable from those of existing entities in such state of incorporation.

Though the focus of this article is on corporations and limited liability companies (which are by far the two most prominent entity structures used for aspiring venture-backed startups), it is important to keep in mind that certain name-related legal requirements can apply to other entity types as well.
Continue Reading Choosing a Corporate Name: Practical Considerations and Legal Requirements

On May 11, President Barack Obama today signed the Defend Trade Secrets Act (DTSA) into law.  The law is effective immediately.  The DTSA provides a federal claim for misappropriation of trade secrets. Until now, trade secrets have been protected only at the state level, with most states (other than New York and Massachusetts) adopting their own version of the Uniform Trade Secrets Act (UTSA).

You can read more about the details of the new law here in an overview by our colleagues Victoria Lee, Rajiv Dharnidharka and Katherine Cheung…
Continue Reading Employee and Other Proprietary Information & Invention Assignment Agreements – Update for New Trade Secret Law

The 2015 Annual Halo Report has been released by The Angel Resource Institute at Willamette University (ARI) and PitchBook.  The Halo Report analyzes angel group investment activity and trends in the United States.  Here are a couple interesting FY 2015 highlights:

  • The median seed-stage valuation for 2015 deals hit an all-time high of $4.6M (up from 53% from 2014);
  • The median and mean round sizes in deals with only angel investors climbed to $850K and $1.164M, respectively (both up materially from 2014);
  • The median and mean round sizes in

…
Continue Reading Angel Investment Trends: FY 2015 Halo Report

Just a reminder to those who have Delaware corporations, your annual report and franchise tax payment are both due by March 1. At this point, you have likely already received from Delaware your notification of annual report and franchise tax due, which is sent to a corporation’s registered agent in December or January of each year. Delaware requires these reports to be filed electronically.

As you will notice, there are two methods that you can use to calculate the amount of Delaware franchise tax due for your corporation (…
Continue Reading Franchise tax due by March 1 for Delaware corporations: two methods of calculation, two vastly different results