February 2, 2010 1:11 PM

GREAT New Blog – IP Law for Startups

Today, I learned that former classmate of mine at the University of Michigan has started a blog for startups dealing with intellectual property issues.

Jill Bowman is a great person and her blog is not only informative, but is also written in her voice, not legalese.  (Her husband says it’s too “girly” but I totally disagree). 

Jill promises to dish on IP “train wrecks” (her words) that she’s seen over the past decade and hopefully her wisdom can save some folks future headaches.

She also promises to talk about costs savings in IP controversies and expose how some big firms are ripping off their clients. 

Her first post is Ten Smart Reasons to Learn About IP Law.  Jill, welcome to the blogosphere.  We are happy to have you. 

December 30, 2009 10:37 AM

Is An Inside Round Good or Bad?

Bijan Sabet has today’s Great VC Post titled The Inside RoundIn it, he talks about the pros and cons of an inside round which he defines as:

“There are times where a follow on financing does not include a new VC firm. The new round is financed by the current investors. This is known as an “inside round”.”

He also summarizes the historical conventional wisdom:

“It used to be the case that an inside round often meant something was wrong. It meant the company was unable to raise money with a new outside lead investor due poor operating performance, team, market, whatever.

And sometimes that is a correct read on the situation.

But I believe that is no longer universally true.”

I strongly agree with Bijan.  At Foundry Group, we are very comfortable with doing inside rounds and describe ourselves as being syndication agnostic.  It’s definitely worth wandering over to Bijan’s blog and reading more on this thoughts about The Inside Round.

December 22, 2009 6:04 AM

Looking for Angel Investors for a High Tech Venture?

Venture Hacks has a great list of high quality angel and seed investors.  I was recently added to the angel list (there goes the neighborhood) and join an active crew of angel and seed stage VC investors that currently includes Rob Go, Ariel Poler, Aaron Patzer, Jason Calacanis, Ho Nam, Georges Harik, Rob Lord, Andy Weissman, Bryce Roberts, Matt Mullenweg, Satish Dharmaraj, Brian Norgard, Mike Hirshland, Roger Ehrenberg, Peter Chane, Josh Felser, Mark Suster, Keith Rabois, Saar Gur, Salil Deshpande, David Cohen, Dave McClure, Bill Lee, Jeff Clavier, James Hong, Auren Hoffman, Jon Callaghan, Chris Sheehan, Jeff Fagnan, Michael Dearing, Dharmesh Shah, Manu Kumar, and Naval Ravikant.

There’s plenty of info listed for each person – see the example of my listing below.

image

If you are an angel investor or seed stage VC, please apply to be added to the list.  If you are looking for angel or seed stage VC investors, have at it!

December 14, 2009 11:29 AM

A VC on Pitching VC’s

Today’s great blog post – titled A VC’s Advice On How To Pitch VCs - is from Raj Kapoor at Mayfield Fund and is guest posted on TechCrunch.

December 5, 2009 4:15 PM

Things To Consider About Who You Should Take VC Money From

Roger Ehrenberg has today’s best VC post titled Thoughts on Taking Venture Money.  It is a long one, but worth reading slowly as an add-on to Chris Dixon’s post Does a VC’s brand matter?

December 5, 2009 3:58 PM

Things To Consider About Who You Should Take VC Money From

Roger Ehrenberg has today’s best VC post titled Thoughts on Taking Venture Money.  It is a long one, but worth reading slowly as an add-on to Chris Dixon’s post Does a VC’s brand matter?

November 16, 2009 10:54 AM

Why Don’t Venture Capitalists Tell You Why They Won’t Invest?

Today, we were asked the following question:

'”Why don't VCs tell you the reason why they don't invest? Any feedback would be useful. It's just plain rude.”

I (Jason) figured that this is really a personal question, so I thought that I’d post on my personal blog, as I certainly can’t speak (or even guess) the response for the entire VC industry.

You can see Jason’s thoughts here

November 10, 2009 6:50 AM

Preparing to Wind Down a Business: What information do you need?

We continue to work our way through wind downs in the third part of the series from Roger Glovsky.  Roger, you have the floor…

The primary responsibility for shutting down operations and liquidating assets falls on the managers and/or owners of the business, at least until or unless the creditors or court system takes over.  This could come as a nasty shock to some investors.  Many angel investors or even venture capitalists enter a transaction with the intent of just contributing money.  They may be surprised to learn some day that the management team for the company they invested in have all resigned and that no one is remaining to wind down the business, sell off the assets, or pay down the liabilities.  Suddenly, one  day the investor or owner receives a call (most likely from a creditor) asking what they plan to do with their company and how they plan to address the outstanding liabilities.  Not a happy call for the investor or owner.

Whether you are a manager or an owner faced with winding down a business, the goal of the person winding down the company is to fulfill his or her fiduciary obligations and preserve the management's or owner's business reputation.   The first step is to assess the financial situation of the business.  The second step is to take note that time is of the essence and the longer it takes to do the first step, the more time, money and reputation it will cost the management or owners.   

When you buy an existing business, you typically do what is referred to as "due diligence" to make sure you know what you are buying.  Similarly, when you are winding down a business, you must do your due diligence to make sure you know what assets and liabilities the company still has and how best to handle them.  This is what I call "reverse due diligence".  Reverse due diligence involves all of the same information that a buyer or investor might request for a growing business, but for a different purpose: the purpose is for marshaling assets and managing liabilities  to maximize value on the downside.  In normal due diligence, a buyer will scrutinize financial information and disclosure schedules looking for hidden liabilities that may detract from the value of the acquired company.  In reverse due diligence, the person winding down a business is looking for hidden assets that can maximize value and facilitate the settlement of the company's obligations.

So, what information do you need?

1. Financial Information.  Most importantly, you need to get a good handle on the financial situation.  Are there current financial statements (e.g., P&L, balance sheet, cash flow) prepared by an outside accounting firm?  If not, start with the most recent tax return and review all information relating to income, balance sheet, assets, liabilities, and capital structure.  Are there internal financial statements prepared by the company?  Is there a Quickbooks file (or other accounting software) that can print a transaction report for the current or prior years?  What might be the "off-balance-sheet" assets?  Seek help from the company’s accountant and financial advisors to make sure that the financial information is accurate and up to date.

2. Taxes.  Make a list of all states in which the company is obligated to pay taxes.  What is the process in each state for submitting final tax returns?   What tax good standing certificates are required for dissolution?  What are the outstanding tax obligations (e.g., payroll taxes, estimated taxes, annual taxes, sales taxes)?  What obligations are coming up in the near future?  What tax obligations or tax filings will be required after the company ceases operations?  What money will you need to reserve for payment of taxes after dissolution?

3. Hard Assets.  List all assets, including both "hard" assets and intangible assets.  Hard assets include computers, equipment, furniture, products, and inventory.  Are the assets leased or owned?  Are the assets worth more sold separately or combined with other assets (such as a product line or customer contract)? You may want to start with the most recent balance sheet to identify major assets that have been capitalized.  Which assets are most valuable?  Which assets can be sold easily (e.g., using brokers, auctioneers, eBay, or Craigslist)?  Are there any strategic assets that may be desired by vendors, partners or competitors?

4. Soft Assets.  Soft assets are intangibles that  include securities, accounts receivable, contract rights, bank accounts and cash.  Intangibles also include intellectual property such as patents, copyrights, trademarks, websites, blogs, and domain registrations.  Is there technical information or process know-how that employees (or former employees) could document and make available for sale?  What is the value of the brand and how can it be transferred?  Is there software or technology (or other IP) that could be licensed?  Can customer lists be sold?

5. Potential Buyers.  Can you identify a specific list of potential buyers?   Who might have a strategic or competitive business interest in some or all of the assets?   Consider vendors, contractors, customers, strategic partners and affiliated entities.  Would business brokers or investment bankers be able to find potential buyers?   If not, are there auctioneers or liquidators who would help fire sale the assets?

6.  Lenders.  What loans or financings has the company entered into?  Are there other credit arrangements?  Make sure that you review executed (i.e., final) drafts of all documents.  What do the documents require?  Which creditors or obligations take precedence?  What happens in the event of default?  Are there any personal guarantees?  Can the loan or financing arrangements be renegotiated?

7. Employees.  What are the current payroll obligations?  How should they be managed during the wind down process?  What bonuses, vacation pay [Ed. Note: and sales commissions] and accrued expenses are owed?  What payroll taxes will be due? What employee benefit plans need to be cancelled or terminated?   How will this affect employees on COBRA?  Can you save money by switching to a Professional Employer Organization (PEO)?  Are there any other forms of compensation (stock, deferred compensation or other incentives) that have not been documented or paid?  What employment contracts exist and what restrictions will remain enforce?  Can you or a potential buyer solicit employees?  Are you treating all employees fairly and equally?  How will your actions affect employees that you might want to hire again for a future venture? 

8. Customers.  Make a list of all current customers, past customers, and prospective customers.  Which customers have outstanding receivables?  Are there open orders?  Should open orders be cancelled or delivered?  Which customers have you collected money from but won't be able to deliver products or services?  What prepayments from customers should be refunded?   How much of the receivables can be collected after the company ceases operation?   Which receivables should be written off as uncollectable?  At what point should you notify customers that you intend to cease operations?  How long can you hold out for a buyer to take over a product line or business?  Are there any long term agreements for services?   What goodwill can be salvaged or business reputation maintained by transferring unfinished projects to another service provider?

9. Vendors.  Make a list of all suppliers and contractors.  Be sure to review current versions of all agreements, including any addendums or renewals.  Which vendors do you owe money?   What leases are there for real estate or equipment?   Are there any long term contracts?  Can you negotiate an earlier termination or buy-out of the contracts?   Can you get the contract modifications in writing?  What are the notice requirements and other obligations upon termination?  How many days in advance must notice be given?  Are some notice requirements sooner than others?   Are there any security deposits or prepayments (e.g., insurance) that will be repaid to the company?

10. Records; Compliance.  Review all corporate records, paying particular attention to obligations upon dissolution or liquidation of the company's assets.  Make sure that you have current copies of all corporate (or LLC) records including charter, bylaws, stockholder agreements (or in the case of an LLC, the Operating Agreement).  Are there any security, investment or other financing documents that affect the owners’ rights or the distribution of assets?   Are there any documents that assign responsibility or indemnification upon default of obligations?  Are there regulatory filings or other compliance obligations?  What licenses or registrations does the company have and how should they be withdrawn or terminated?  Are there any environmental issues or other compliance obligations that will continue after operations cease?

Review all of the assets and liabilities carefully.  Are the assets worth more or less than the company paid for them?  Are there any assets with hidden value (such as websites with significant traffic or popular domain names)?  We have had some clients sell domain names alone for more than $500K.  Some of these assets may have more value to competitors than they do to the failed business. 

After you have gathered the information above, you should be able to make a preliminary assessment as to whether the company's net worth is positive or negative.  Be sure to review the assessment with the company's accountant, attorney and other professional advisors in order to determine when to cease operations and to plan for the orderly liquidation of assets.  The professionals can help to structure and guide the wind down strategy.  There are many financial and legal pitfalls for the unwary.   It does not have to be time consuming or expensive, but the assessment does require a trained eye to avoid potential issues that might arise later after the assets have been liquidated and the proceeds disbursed.

The above list is just a sample of the most common items to consider before winding down a business.  There are many more items that would be included on a typical due diligence checklist.  The financial information and due diligence should be performed with the utmost care and accuracy to make sure valuable assets or significant liabilities are not overlooked.   Are there may major items that we have failed to mention?  What information did you find the most useful in winding down a business?

Roger Glovsky is a founding partner of Indigo Venture Law Offices, a business law firm based in Massachusetts, which provides legal counsel to entrepreneurs and high-tech businesses. Mr. Glovsky is also founder of LEXpertise.com, a collaboration and networking site for lawyers, and writes blogs for iLaw2.com and The Virtual Lawyer.

Related Posts:

Part 1:  How to Wind Down Your Company

Part 2:  When to Shut Down Your Company

The above content is intended to serve as a general discussion of the subject matter and is provided for informational purposes only. It is not legal advice and should not be construed as such. Do not act upon this information without seeking professional advice or rely on this website or use the content as a substitute for consultation with professional advisors.

October 19, 2009 9:02 PM

When to Shut Down Your Company

Buy Yaz

Last week we started the blog series (written by Roger Glovsky), How to Wind Down Your Company.  The response and comments were great!  Keep them coming.  This week we tackle the hardest problem of all: deciding when to shut down your company.

It is not easy an easy decision, especially for entrepreneurs.  Starting a company is about creating a vision, persuading others to believe in the vision, turning an idea into reality, and pursuing a dream.  The last thing an entrepreneur wants to do is to shut down his or her dream.

So, how do you make the decision to shut down your company?  When do you decide to shut down your company?  The short answer is: When the company has no other alternatives.

What are the alternatives?

Financing.  If the company burns through the Series D funding, why not just raise Series E, F or G?  There are plenty of letters in the alphabet, aren't there?  No.  Not every business problem can be solved with money.  The business model may have changed.  Competition may be too great.  Technology may have failed to perform.  Or the customer just didn't buy enough of the products.  And the Series A, B, C, and D investors may already have been burnt by prior down rounds, cram downs, or failed expectations.

Sale or Merger.  This may be the best option for an entrepreneur, if it is available.  The sale or merger of a business is often regarded as a success even if the sale price is well below the amount contributed by investors.  Why?  Because the sale price may not be disclosed.  The typical press release of a failed business simply states that a small company was acquired by a big company and that together the new combined company plans to do great things.  The big company may get strategic assets (often technology or intellectual property) at a discount and the small company preserves its reputation.  Win-win.  The public may not ever know that the business failed.

Bankruptcy.  The company could file for bankruptcy and leave it to the courts to handle it.  This can be an expensive and inefficient process.  Why? Because the courts have required procedures to ensure fairness to those with potential claims including lenders, suppliers, customers, tax authorities, employees, investors, shareholders, and others.  The process of sorting out potential claims takes time and the resulting delays may reduce or destroy the value of certain business assets.  Often, the disposition of business assets can be handled better outside of bankruptcy through private settlement processes.

Crash and Burn.  You could simply leave the company on "autopilot" and let the business hit the wall at 200 mph.  As I mentioned in my first post, the end result is "crash and burn". Complete loss of life.  No one walks away.  It isn't pretty.  The business dies and no one takes responsibility for its failure.  No regard for any of the trust relationships created during the visionary, start-up and operating phases.  Just "oh well, we tried."  The problem is personal assets could be at risk and the law may hold directors, officers, and stockholders (or other business representatives and owners) responsible long after the business entity ceases to exist.

Deciding "there is no alternative," should not be a last minute determination.  In most companies, you can see the end coming well in advance.  Either the company is gaining customers or losing them.  The energy is either flowing into the management team or out of it.  The products are either shipping with fewer bugs or more bugs.  The cash flow is either improving or getting worse.  If you are paying any attention to the business at all, you know what's happening.

Shutting down a business is really a process, not a decision.  You don't just wake up one morning, look at your to do items and then write "wind down company" at the top of the list.  It's a process.  You have to go through the painful, possibly agonizing process of evaluating your alternatives.  You should consider carefully who will be affected by the shut down and seek advice from trusted and knowledgeable sources.  You should consult with your board of directors (or other governing body) as well as your legal counsel and financial advisors.  In the end, you need to make a thoughtful, well-reasoned decision and then take the necessary actions.  The earlier you deal with the issues, the more alternatives you will have and the easier it will be to transition to the next venture.

During the mid 1990's, I was President of a software development company faced with the decision of shutting down its business.  We were selling Mac software to enterprise customers at a time when almost every major corporation in America stopped using the Mac in the workplace.  And we were competing against other vendors, including Apple, that were literally giving away a similar product for free.  We had some good years and were profitable, but we were selling into a Buy no Prescriptionlegacy systems market and saw the end coming well in advance.  We reviewed various options with our board of directors and made several attempts to develop new products and pursue other opportunities, but in the final analysis, we decided that the various options did not match our talents or resources. Instead, we wound down the business and simply distributed the remaining assets to the stockholders.

You don't have to "pull the trigger" right away, but you do need to begin planning well in advance.  Whatever you do, don't wait too long to start the process; it gets messy.  What do I mean by "too long"?  The company can't meet this week's payroll.  The Company doesn't have enough money to pay its taxes.  The company already missed a loan payment.  You are wondering what happens to your personal guarantees when the business fails.

What is the likelihood of business failure?  I can't vouch for the information, but here are some interesting statistics.  We would like to hear your war story about winding down a business.  What made you decide to cease operations?  What actions did you take?  What alternatives did you consider?

Roger Glovsky is a founding partner of Indigo Venture Law Offices, a business law firm based in Massachusetts, which provides legal counsel to entrepreneurs and high-tech businesses. Mr. Glovsky is also founder of LEXpertise.com, a collaboration and networking site for lawyers, and writes blogs for iLaw2.com and The Virtual Lawyer.

The above content is intended to serve as a general discussion of the subject matter and is provided for informational purposes only. It is not legal advice and should not be construed as such. Do not act upon this information without seeking professional advice or rely on this website or use the content as a substitute for consultation with professional advisors.

October 19, 2009 7:26 AM

Know Your Communication Strategy When Raising Money

Today’s interesting post is from Matt Eventoff and talks about how startups need a communications strategy while raising money – not all that dissimilar from a disgraced politician.  Thanks Matt!

Boulder Open Coffee Club
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