What Every Founder/Entrepreneur Must Know (Series: The Start-Up/Small Business Advisor)

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Practical and entertaining education for
attorneys, accountants, business owners
and executives, and investors.
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DISCLAIMER
The material in this webinar is for informational purposes only. It should not be
considered legal, financial or other professional advice. You should consult with an
attorney or other appropriate professional to determine what may be best for your
individual needs. While Financial Poise™ takes reasonable steps to ensure the information
it publishes is accurate, Financial Poise™ makes no guaranty in this regard.
About this PowerPoint: if you are looking at this PowerPoint without the benefit of
listening to the conversation that surrounded it then you are doing yourself a disservice.
This PowerPoint was prepared in contemplation of being viewed in conjunction with
listening to a one hour webinar on the topic
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MEET THE FACULTY
Moderator:
Chris Cahill – Lowis & Gellen LLP
Panelists:
Steven Baron – Mandell Menkes LLC
Steve Bastien – Creditor’s Edge
Joshua Lyons – CRE Marketing Group
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ABOUT THIS WEBINAR:
What Every Founder/Entrepreneur Must
Know
Congratulations. You are a founder of a company and you have just been given an hour to ask
several experts anything you want about the subject. Some questions will certainly focus on IP, since
intellectual property is so important to so many businesses. Some questions will touch on
outsourcing- perhaps of manufacturing, perhaps of certain other functions. Formation, capital
raising, and HR are also fair game. And since the panel includes two attorneys, you can be sure that
the conversation will cover both the business and legal aspects of the various topics discussed.
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ABOUT THIS SERIES:
The Start-Up / Small Business Advisor – What
Every Founder / Entrepeneur Must Know
Most startups are not destined to become billion dollar unicorns. Most, in fact, will
fail and most of those that survive will never be more than small businesses.
Whether and to what extent a startup will be successful depends on many factors.
One set of factors is the foundational pillars on which the company is built, and
includes things such as the company’s capital structure, financial controls, human
capital, market niche, and marketing functions.
This series explores each of these topics, giving startups and their advisors useful
tools and insight into how they can build a foundation for success.
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EPISODES IN THIS SERIES
1/22/19 Episode #1:
The Very Basics - Forming the Business
2/19/19 Episode #2:
Raising Capital: Negotiating with Potential Investors
3/19/19 Episode #3:
HR-101: Finding, Negotiating With & Retaining Potential Hires
4/16/19 Episode #4:
What Every Founder/Entrepreneur Must Know
Dates shown are premiere dates.
All webinars will be available
On Demand approximately 4 weeks
after they premiere.
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Episode #4:
What Every Founder / Entrepreneur
Must Know
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FORMING AN ENTITY
• What’s the first thing a new business owner should do?
✓ Form an entity
• Why form an entity?
✓ Limited liability (capped vs. unlimited)
▪ With: The business owner is only at risk for the amount of their
investment and none of the other obligations of the business
▪ Without: The business owner is responsible for all of the business’
liabilities
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FORMING AN ENTITY (cont’d)
More Reasons to Form an Entity:
• Interaction with third parties
✓ Credibility with financing or other sources
✓ May be demanded by third parties as a means of reducing
potential liabilities
• Flexibility and structure for management and control
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TYPES OF LEGAL ENTITIES
• The two most common forms of legal entities are:
✓ Corporations
▪ C or S-Corps
✓ Limited Liability Companies (or LLCs)
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CORPORATIONS
• Corporations
✓ There are two variations on the corporation (based on the way
they are treated for tax purposes)
▪ C-Corp
➢ Unless you plan to raise venture capital or go public, you’ll likely want
to stay away from the C-Corp…it’s earnings are taxed twice!
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CORPORATIONS (cont’d)
▪ S-Corp
➢ Not subject to double taxation (pass-through entity)
➢ Restrictions include (1) only individuals can be shareholders,
(2) no more than 100 shareholders, (3) only U.S. persons can
be shareholders, and (4) funds can only be divided between
the shareholders “pro rata”
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OTHER TYPES OF CORPORATIONS
• Professional Corporations
✓ Available, and typically mandatory, if forming a corporation, for certain
professions (lawyers, doctors, accountants, etc.)
✓ May not be able to limit individual liability, at least for malpractice actions,
even if using
• Statutory close corporations
✓ Limitation on number of shareholders (35)
✓ Flexible management structure such that a shareholder with much less than
majority ownership may be able to control management
✓ Fallen into disfavor in the LLC era?
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OTHER TYPES OF CORPORATIONS (cont’d)
• Non-profit corporations
✓ No profits distributed to shareholders
✓ Limitations on purpose, use of funds, etc.
• Co-operative corporations (consumers, agricultural, etc.)
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LIMITED LIABILITY COMPANIES (LLCs)
• LLCs offer, as their name suggests, limited liability like a corporation, taxation like
a S corporation or a partnership, and do not have the restrictions on ownership of
a S corporation
• LLCs offer a flexible management structure such that they can either be operated
by one, some or all of their members (the LLC equivalent of shareholders) or a
manager or managers, who may or may not be members
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LIMITED LIABILITY COMPANIES (cont’d)
• LLCs are formed by the filing of a certificate (or articles) of organization.
• Their primary governing documents, which are not mandatory but are highly
advisable, are known as operating agreements
✓ Operating Agreements are similar to bylaws but often include additional
provisions of governance and share transfer which may be included in a
shareholder agreement of a corporation.
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LIMITED LIABILITY COMPANIES (cont’d)
• LLCs have become extremely popular for the advantages and flexibility they offer.
• However, because of their relative newness and largely contractual nature:
✓ LLCs offer less certainty, to both their members and outside entities dealing
with them, than do corporations.
✓ While LLCs are permitted to grant stock options, have more than one class of
stock and do not generally have limitations on who can become members,
there is enough haziness on these issues such that professional investors will
generally prefer a C corporation
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SUMMARY OF PRIMARY ENTITY CHOICES
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RISK MANAGEMENT
• Corporate counsel
• Business licenses & registrations
• Internal controls / policies & procedures
• Insurance
✓ D&O
✓ Key Man
✓ General Liability
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BUILDING A TEAM
• Board of Directors vs. Board of Advisors
• Resources needed (by function)
✓ Business Development
✓ Operations
✓ Finance & Accounting (including Tax)
✓ Legal
✓ Human Resources
• Employee vs. independent contractor (IC)
• Focus on revenue generation (infrastructure lags revenue)
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GENERAL HR TIPS FOR STARTUPS
a. Act as a leader
b. Policies and training are just the start
c. Create and communicate values
d. Institutional values
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LAWS & REGULATIONS (FEDERAL)
a. Department of Labor
i. Wages & Hours
ii. Workplace Safety
iii. Workers’ Compensation
iv. Employee Benefits, etc.
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TALENT ACQUISITION – RECRUITING
a. Develop a recruiting plan
b. Identify vacancy and evaluate needs
c. Develop position description
d. Advertise position
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EMPLOYMENT NEGOTIATIONS – TYPE
OF EMPLOYMENT
a. Status: Full Time v. Part Time
b. Classification: Exempt v. Non-Exempt
c. Independent Contractor
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EMPLOYMENT NEGOTIATIONS – TYPE OF
EMPLOYMENT (cont’d)
a. Exempt vs. Non-Exempt
i. Employees typically fall under 1 of these 2 categories
ii. The federal Fair Labor Standards Act (FLSA) requires that, in addition to paying at
least the minimum wage employers also must pay overtime to employees who work
more than 40 hours in a given workweek, unless they meet certain exceptions.
iii. Non-exempt employees are entitled to overtime pay under the FLSA
iv. Exempt employees are not entitled to overtime pay under the FLSA
1. Common exempt employees include: Executive, Professional, and Administrative
employees
v. Many states also have wage and hour laws that may have more requirements than FLSA
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EMPLOYMENT NEGOTIATIONS – TYPE OF
EMPLOYMENT (cont’d)
a. Full Time Employees vs. Independent Contractors
b.
Source: http://employment.findlaw.com/hiring-
process/being-an-independent-contractor-vs-
employee.html
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EMPLOYMENT NEGOTIATIONS – EMPLOYMENT
AGREEMENT
a. Noncompete
b. Non-solicitation
c. Confidentiality
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AGREEMENT (cont’d)
a. Noncompete Provisions
i. Terms restricting an employee’s ability to work for competitors for a specified amount of
time (sometimes within a specified geographic area) after an employee leaves a company.
ii. Often used to protect trade secrets or goodwill
iii. Enforceability
1. Often restricted or unenforceable under state law.
2. Each state has its own unique laws and rules about whether, when and to what extent a
non-compete agreement is enforceable.
3. Reasonableness of non-compete restrictions are often the key to enforceability! Duration
and scope must be reasonable.
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a. Non-Solicitation Provisions
i. Terms restricting employee’s ability to solicit company’s clients or customers for
employee’s own benefit or benefit of another employer after leaving company.
ii. May also include agreement not to solicit other employees to leave when exiting employee
leaves.
iii. Often used in service or sales businesses
iv. Enforceability
1. Again – know the law in your state!
2. Where enforceable, must be drafted so that it is not too difficult for employee to earn a
living or unfairly limit a competitor’s ability to hire workers or attract new customers
3. Valid business reason should/must exist for enforcing non-solicitation provisions
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a. Confidentiality Provisions
i. Agreement prohibiting employee from disclosing company’s
confidential or proprietary information.
ii. Often effective during an employee’s time with company, and
lasting for a period of time after employee leaves (1-3 years is
common).
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OUTSOURCING HR
a. Benefits
i. Frees employer to concentrate on core competencies
ii. Saves money
iii. Improves compliance
iv. Improves recruitment
v. Provides access to latest tools and technology
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FUNDING YOUR BUSINESS
• Sources of Financing
✓ Bootstrap
✓ Friends & Family
✓ Government
✓ Angel Investors
✓ Venture Capitalists
✓ Commercial Banks
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FUNDING YOUR BUSINESS (cont’d)
• Select documents necessary to raise financing
✓ Business Plan
▪ Executive Summary
▪ Management Team + Board of Directors (Advisors)
▪ Market Size
▪ Financial Projections
✓ Business Formation Documents
✓ Confidential Information Memorandum (CIM)
✓ Contracts
▪ Employment Agreements
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EQUITY – SELLING OWNERSHIP INTERESTS
• Individuals or firms provide money in exchange for an ownership
percentage (shares, stock) in a company
• May take numerous forms
• Entails loss of some ownership to founders, but can be beneficial for
startup that doesn’t expect to generate revenue sufficient to repay
loans or reinvest in the company
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ANGEL INVESTORS
• Equity-based investing by wealthy individuals
• May be an industry executive or experienced businessperson able to
provide guidance to company
• May give company credibility to attract other investors.
• Angels may work in organized groups to screen deals & invest with
each other, while many invest on their own.
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WHAT DO ANGELS WANT?
• High growth and scalability
• Thus software and tech, more than manufacturing
• A market for the innovation, a moat against future competitors
• Payoff (exit) in 5 to 10 years
• To build their own brand to gain access to future deals
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WHAT ANGELS HAVE GOTTEN
• 2.5x exit on average
• 4.5 year average holding period for successful exits
• 50% to 70% dilution when investing at seed stage [per Angel
Resource Institute]
• If initial valuation is $10 million and 50% - 70% dilution expected,
then to reach 2.5x Angel investment, exit valuation should be $83
million, or 8.3x
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ANGEL BATTING AVERAGE
• Lower than baseball batting averages
• Many losers, but high returns from winners
• Likely need for future investments rounds
• Angels diversify their bets, and bet with funds they can afford to lose
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VENTURE CAPITAL
• Investment firms willing to put forward a large sums of money in
exchange for equity in the company
• Financing typically conditioned on VC pulling money out after
company is acquired or goes public.
• VCs are professional investors seeking significant return on
investment
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DILUTION
• First Founder(s) own 100%
• Then seed funders and employees are distributed shares
• Then Angels purchase a percentage of total shares
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DILUTION (cont’d)
• NOTE: With each of these steps, the ownership share of the
predecessor owners is diluted
• Venture Capital and other later funders are likely to insist on some
control (e.g., a Board seat) an on preferential payouts in the event of
a liquidation- these doubly dilute their predecessors
[See Equity Investment Simulation at http://ownyourventure.com/equitySim.html]
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OFFERING PROCESS FOR EQUITY
SECURITIES
• Offers and sales of equity securities must either be registered with
the SEC and offered publicly or exempt from registration and
offered privately
• Pre-JOBS Act (2012), an investor must have been an accredited
investor in order to participate in an exempt offering, and issuers
of private equity securities were barred from engaging in general
solicitation or advertising
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ACCREDITED INVESTORS IN EXEMPT
OFFERINGS – WHO?
“Accredited investors” include natural persons who:
• possess a net worth (alone or with spouse) >$1 million (excluding
value of home, and not counting home mortgage as a liability, unless
it is underwater) or
• have an annual income >$200,000 (or joint income with spouse
>$300,000) in the 2 most recent years, and reasonable expectation
of similar or higher income in the current year
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INVESTING IN PRIVATE EQUITY SECURITIES
PRE-JOBS ACT [Rule 506(b)]
• Accredited investor has pre-existing, substantive relationship
directly with issuer
• AI has pre-existing, substantive relationship with an intermediary,
such as a broker-dealer or investment advisor
• AI purchases resold private equity shares in secondary markets
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JOBS ACT OF 2012 (IN SUMMARY)
• SEC’s prohibition on general solicitation and advertising eliminated
in certain private offerings in which only accredited investors
participate (Rule 506(c) and Title II)
• In addition to pre-JOBS Act access via issuers and intermediaries
with whom AIs had pre-existing substantive relationships, AIs can
now invest in private equity securities via on-line investment
platforms that advertise and engage in general solicitation
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JOBS ACT OF 2012 (IN SUMMARY) (cont’d)
• Accredited investors and the “crowd” of non-accredited investors
will be able to invest in private equity securities via Title III (aka Reg
CF) on-line “crowdfunding portals” (with annual investing limits
keyed to income, net worth)
• Accredited investors and non-accredited investors will be able to
invest in private equity securities via Title IV (aka Reg A+) offering
platforms (with annual investing limits keyed to income, net worth)
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COMMON DOCUMENTATION WHEN DEALING
WITH INVESTORS
• Term Sheets
✓ Set out details of investor funding; come in a variety of forms
depending on the round of funding addressed and investor involved.
• Stock Purchase Agreements
✓ Agreement between company & shareholders regulating sale and
transfer of company’s shares; often include provisions governing right
of first refusal, redemption of shares
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WITH INVESTORS (cont’d)
• Business Loan Agreements/Financing Agreements
✓ Set forth terms of financing with lenders, length of loan, interest
rates, conditions, etc
• Personal Guaranty
✓ Executed by startup owners to guarantee repayment of loan from
personal assets in event of default by company
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WITH INVESTORS (cont’d)
• Convertible Notes
✓ Short-term debt that automatically converts into equity upon
future events in a company’s life, such as a later round of
financing when a valuation is established
• Security Agreements
✓ Involved with debt financing: lender is granted a secured interest
in company’s assets, on which it can foreclose and sell in the
event the company defaults on its loan obligations
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ABOUT THE FACULTY
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CHRIS CAHILL – ccahill@lowis-gellen.com
Mr. Cahill is Head of the Bankruptcy and Restructuring Practice Group at Lowis & Gellen
LLP, in Chicago, Illinois. He guides secured lenders, creditors, debtors, creditors’
committees, potential purchasers and others through bankruptcy cases, out-of-court
workouts, assignments for the benefit of creditors, and receiverships. Mr. Cahill has
substantial mega-case experience representing very large debtors, and counsels and
litigates on behalf of manufacturers and secured lenders in large and middle-market cases.
Mr. Cahill also publishes frequently and speaks regularly on commercial insolvency
issues. He is an executive editor of Commercial Bankruptcy Litigation, 2d Edition
(Jonathan P. Friedland, Elizabeth Vandesteeg & Christopher M. Cahill eds., 2017) and is
the host of Financial Poise Radio, a periodic broadcast for investors and other curious
persons, on www.financialpoise.com.
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STEVEN BARON – sbaron@mandellmenkes.com
Steven Baron is a partner at Mandell Mankes LLC. Mr. Baron has significant experience in complex commercial litigation and
dispute resolution, with particular emphasis on matters involving intellectual property, media, First Amendment, advertising,
marketing and class action defense. Mr. Baron represents media and entertainment companies, advertising and marketing
agencies, graphic artists, authors, publishers, recording companies and recording artists, information technology businesses,
Internet service providers and other clients with intellectual property and media interests.
Mr. Baron has appeared before state and federal courts and arbitrators and mediators on matters involving defamation,
privacy, copyrights, trademarks, patents and trade secrets and to defend clients against class action claims. He also appears in
administrative tribunals such as the Trademark Trial and Appeal Board on trademark opposition and cancellation proceedings
and WIPO domain name dispute resolution proceedings.
Outside of the courtroom, Mr. Baron guides clients in selecting and clearing trademarks and prosecuting trademark and
copyright applications before the United States Patent and Trademark Office and Copyright Office. He also counsels clients on
matters involving rights of publicity and privacy. To assist clients in their commercial relationships, Mr. Baron drafts, reviews
and negotiates a host of agreements, including intellectual property licenses and assignments, software escrow agreements,
confidentiality and non-disclosure agreements, work-made-for-hire agreements, employment agreements, merchant
agreements, and web site terms of use and privacy policies.
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STEVE BASTIEN – stephen@bankruptdebtor.com
President and founder of Creditor's Edge and The Bankrupt Debtor Daily Report in 1982. Started several
businesses which can be viewed on my speaker's website: www.entrepreneurialspeaker.com
Began my career working for Dun & Bradstreet as a business analyst then as a credit manager for Gibson
Guitars and Desoto Chemical before starting Creditor's Edge. Also an author and leading authority on
entrepreneurship.
Taught entrepreneurship for Northwestern University and is author of two books, “Yes One Person Can Make a
Difference” and “Born to Be”. He is also a former radio and TV talk show host. Stephen is an expert on
managing employees, leadership and helping to expand young firms or turn around ailing ones. Stephen has
owned a collection agency, Collect Temp Services, and also writes educational articles for the credit and
collection industry and is the founder of Creditor's Edge, which today is knows as The Bankrupt Debtor Daily
Report.
For more information on his financial publications, books or business consulting services, contact:
stephen@bankruptdebtor.com Also a film maker, actor, musician and singer/songwriter who loves a good
game of tennis, golf or poker on occasion.
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JOSHUA LYONS – josh@jjlyonsmarketing.com
Joshua Lyons, Co-Founder of CRE Marketing Group, has been part of the marketing world since
2009. He began his marketing career upon graduation from the University of West Florida, with an
education in public relations and marketing. Joshua worked for several companies, developing and
implementing proven online marketing strategies and boosting their exposure and revenue. After
many years of marketing, in commercial real estate, hospitality and other industries, Joshua began
his own marketing company, Joshua Lyons Marketing, LLC. He launched his business in 2015 and
continues to provide marketing services for clients around the United States. Joshua works with new
businesses, entrepreneurs, larger established companies and organizations that are internationally
recognized. Additionally, his clients range in industry from banking, home repair, medical,
professional coaching and more. His companies provide a variety of marketing services, but the core
services offered include website development, content writing and search engine optimization. Those
who wish to learn about marketing can read his company blog, which is designed to help individuals
and marketing teams as they develop their own online marketing strategies.
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QUESTIONS OR COMMENTS?
If you have any questions about this webinar that you did not get to ask during
the live premiere, or if you are watching this webinar On Demand, please do
not hesitate to email us at info@financialpoise.com with any questions or
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and we will do our best to provide a timely response.
IMPORTANT NOTE: The material in this presentation is for general educational purposes only. It has been prepared primarily
for attorneys and accountants for use in the pursuit of their continuing legal education and continuing professional education.
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What Every Founder/Entrepreneur Must Know (Series: The Start-Up/Small Business Advisor)

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