Over the New Year, I saw the new Leonardo DiCaprio/Martin Scorsese film, “The Wolf of Wall Street,” which told the apparently mostly-not-embellished true story of boiler room scammer Jordan Belfort. In addition to setting a record for use of the f-word in a film, this movie was the most relevant to what I do for a living since “The Social Network” improbably addressed the issue of dilution of startup founders.
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Continuing its implementation of rules mandated by the JOBS Act, the SEC has proposed rules for the expansion of offerings under Regulation A. Here is the SEC’s handy press release and fact sheet. Commentators have dubbed the new rules “Regulation A+” because of the greatly increased maximum offering amount under the new rules (and not as a reference to the average grade at Harvard). As with the recent crowdfunding proposal, these rules are not effective until after the SEC issues final rules following a comment period. …
I don’t often get emotional one way or the other about corporate laws, but one requirement that truly irritates me is New York’s “publication” requirement for limited liability companies. LLCs that are formed in New York, or LLCs formed elsewhere that are qualifying to do business in New York, are required to publish an advertisement in the county where the LLC is located for a period of time. Depending on the county, this can be an expensive undertaking, and it exceeds the state filing fees associated with the formation itself. The requirement does not apply to corporations.
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Attorneys are often mocked for what seems to outsiders as excessive caution in making definitive statements. A typical legal opinion rendered by a corporate attorney is approximately 10% opinion and 90% caveats, exclusions and limitations. The one caveat I think I have provided to every single one of my clients at one time or another is “but I’m not a tax attorney and am not providing tax advice.” Even though I took courses in basic income tax and corporate tax in law school, this area of the law is uniquely complex, and I’ve always been careful to defer to the experts. My uncle got an LLM degree in tax law and practiced in the areas of tax, corporate, real estate and trusts and estates. That sort of generalization isn’t really possible anymore, as all of those areas are exponentially more complex today, so most corporate lawyers today are like me very reticent about making grand pronouncements about tax matters.
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I focused in my last post about breaking up M&A transactions into stages, where a potential acquirer can start by purchasing a minority interest in a company, followed by a purchase of the remainder of the company later. The same approach of breaking a transaction up into bite-sized pieces can be taken with investments that are never intended to be full acquisitions of a company. Equity financing transactions can be structured as a multi-stage process, e.g., an investor purchases a 10% interest and then is obligated to purchase another 10% in the future if the company hits a certain milestone.
But I wanted to focus here on the very common “bridge loan” transaction. The scenario here is that the company wants to (or needs to) put off a significant financing transaction for some period of time – perhaps because it has to develop its business in some manner that would be required to attract the investment – but it needs temporary funds to allow it to do that developing. Rather than negotiating a full-fledged VC-style equity investment, the solution is to structure a bridge investment as a convertible note. The note will automatically convert into equity when the company completes its equity offering over a threshold amount. A selective list of issues to think about in structuring the bridge loan transaction:
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Mergers and acquisitions (M&A) in their usual form are done in a single closing. Sometimes there is some delay between signing the definitive agreement and closing, and sometimes it is simultaneous, but the closing itself is typically a singular event. From the buyer’s perspective, unless the buyer is huge and the purchase price small, it is a large risk to take on an entire company at once. To be sure, M&A attorneys have developed strategies to mitigate risk, including conducting due diligence before closing, but sometimes target company problems only become apparent after the buyer owns the company, even after a thorough due diligence investigation. And post-closing purchase price adjustment mechanisms do not always fully compensate the buyer for these problems.
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The SEC has, at long last, issued its proposed rules on crowdfunding as mandated by the JOBS Act. It is a massive, 585-page behemoth. If you’re pressed for time, here is the SEC’s press release with a handy fact sheet.
I wrote about the SEC and crowdfunding a few weeks ago, noting the SEC’s apparent hostility to the concept and the paternalistic attitude toward non-accredited investors underlying it. Now we have the proposal, and the SEC has apparently held its nose and essentially proposed the framework as contemplated by the JOBS Act. Nothing is final until the SEC receives comments and issues a final rules release, but it appears that crowdfunding will get its chance to prove the doubters right or wrong.
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The most buzz-inducing SEC filing last week (this is a relative statement, of course) was this Form S-1 filed by Fantex, Inc., seeking to register what has become known as the “Arian Foster IPO.” Foster is an accomplished running back for the NFL’s Houston Texans. The deal, in essence, is that investors will (through Fantex) be paying Foster $10 million now in exchange for 20% of his NFL-related earnings, including endorsements, coaching and broadcasting, going forward for his lifetime. So, based on those numbers, if and when Foster’s aggregate earnings from now on exceed $50 million, investors will make a profit on the investment. Fantex views this as the first of several athlete-related offerings. There has been some ridicule about the concept in the popular press, with much focus on the risks (not helped by Foster’s hamstring pull in the first game after the S-1 filing), though like most investments in individual stocks, it’s a high risk, high reward proposition.
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In choosing which law firm to engage for your transactional matter, one threshold determination to make is whether to use a large or small firm, or something in between. Needless to say, I’m not disinterested on this point. The way I market my firm to potential clients inevitably portrays larger firms as not worth the cost – at least with respect to the types of matters I handle. But I spent most of my career in big firms, and there are absolutely transactions that lend themselves to the resources that a “name” firm can bring to the table.
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Businesses organized as LLCs, just like with corporations, often find it advisable to form multiple LLCs to cover different lines of business to keep liabilities associated with one business isolated from the others. However, the formation of multiple entities increases the business’s administrative costs. For each new entity, there are filing fees and then ongoing franchise taxes with the state of organization and other states in which the company does business, separate tax returns, etc., so the business has to weigh these costs against the benefits of asset protection before making the decision to form new entities.
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