General Corporate/M&A Matters

The Merits of Angel Investing

Angel Investors | Andrew Abramowitz, PLLCThe Financial Samurai personal finance blog posted an argument against angel investing, based in part on the writer’s own experience with a seemingly successful investment that really wasn’t so great, upon reflection. Toward the end of the post, the author says that if you do angel investing, you should devote no more than 5-10% of your funds towards it, and don’t expect anything good to come of it. But who is really advocating for devoting half or more of your nest egg to illiquid, speculative investments, even if you have a lot of financial leeway? There are legitimate reasons for wealthy individuals to want to participate in angel investing, like the satisfaction of helping a founder with a promising idea to realize a dream. As long as these investors aren’t blowing their whole fortune on it, what is the harm?

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Small Law Firm Networks

Select Counsel network of law firms and attorneys with big law experienceMy law firm recently joined Select Counsel, a new and fast-growing network of law firms with profiles like mine: small firms founded by attorneys with significant sophisticated large law firm experience. The resulting network is not itself a law firm, but it provides a way for both lawyers in the network and interested clients to quickly locate highly qualified attorneys in appropriate jurisdictions and practice areas. The network has also established an active LinkedIn group enabling participating attorneys to run questions past other members.

Select Counsel | Andrew Abramowitz, PLLCWhen I am speaking to potential new clients, my pitch is pretty simple: I’m the same guy that would have handled your matter when I was with a big firm, but without the big firm infrastructure, I’m able to offer those same services at more reasonable rates and with more personal service. Fortunately, I’ve found that appeal works more often than not, and I’ve built a nice practice. Sometimes, however, potential clients will elect to go with a larger firm. Certainly, there are matters that are better handled by teams at large firms (multi-billion dollar merger, IPO underwritten by first-tier investment bank), but there are certain transactions that I’m capable of handling, where the potential client makes what seems to be the safer choice of a larger firm. (I don’t want to come off as too harsh about big firms, where there are many fine lawyers – and they’re a significant source of referrals for me!)

The Select Counsel arrangement has the potential to eliminate a lot of the queasiness that some potential clients have about small firms, in particular that their expertise is too narrow to handle anything but discrete projects. With the ability to quickly locate the right kind of attorney, it’s easy to quickly assemble a team to collaborate on a matter. Of course, even before this network started, I had assembled my own ad hoc go-to team of specialists (tax, etc.), and I continue to rely on them. But the ability to fill in any gaps through the network will allow me and others in the network to replicate the geographic and practice area scope of a big firm, benefitting both me and my clients.

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The Shift to Electronic Signatures on Contracts

It’s always entertaining to tell younger attorneys about the inefficient ways that lawyers did their jobs back in the day, without modern technology (and probably extremely boring for the younger attorneys to hear those stories). For example, as a junior attorney, I recall that email was just starting to come into common usage, and the job of the paralegal often involved early evening distributions – sending out FedEx distributions of revised drafts of documents before the 9pm overnight delivery cutoff. One aspect of current legal practice that will likely be looked at in the coming years as equally antiquated is the obtaining of manual signatures on contracts.

e-signaturesThis Slate Explainer has a short but informative history of the use of signatures on legal documents. Technology has made the process somewhat more streamlined (fax machine, then PDFs), but signatures remain a practical impediment to quick completion of agreements. In 2016, there are still delays when a party cannot immediately sign an agreement as a result of being, for example, traveling without access to a scanner. Attorneys with good organizational skills know to obtain and hold onto signature pages from a client who is about to travel ahead of a closing, but there is more stress and scrambling than there needs to be.

Fortunately, the technology is improving further, as we speak, via electronic signature services like DocuSign. The federal ESIGN Act, enacted in 2000, provided broad recognition of the validity of electronic signatures, which paved the way for these types of services. They allow parties to sign agreements easily via any internet-enabled device, without a scanner or fax machine, so really the only time an agreement can’t be signed is if the signatory is on a plane and doesn’t want to spring for wi-fi or is deep in the wilderness. My clients are increasingly requesting that these services be used, and I expect them to be widely adopted in the coming years. And the coming generation of new corporate attorneys can laugh at the likes of me for having spent time chasing down manual signatures.

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Whether to Pay Profits out to Shareholders

Whether to Pay Profits out to Shareholders | Andrew Abramowitz, PLLCMatt Levine writes in Bloomberg View about Facebook’s announced $6 billion stock buyback program (scroll down in the newsletter past the other topics). Basically, Facebook’s business generates far more cash than the company knows how to put to use anytime soon, so it is returning the cash to shareholders by buying back the shares of those who want to sell. This is the corporate finance version of a first-world problem – many of my early-stage clients burn through cash and constantly need to think about fundraising (Facebook was that type of company at one point) – but for those companies generating large profits, what to do with excess cash is an interesting issue.

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Increased Scrutiny of Non-Competes in New York

non-competition-laws-in-nysAlthough it has historically been relatively easy for companies to enforce non-competition agreements against employees in New York State, compared to, say, California, where such provisions are unenforceable, the New York Attorney General’s office has recently been cracking down on broad use of non-competes on lower-level employees.

Although the two types of provisions are often conceptually lumped together, it’s important to distinguish non-competes from non-solicitation agreements. With non-competes, although companies have valid business reasons for wanting their employees to refrain from leaving and starting a competitive business, potentially using the trade secrets they have learned on the job, as a matter of public policy, they are frowned upon for reducing worker mobility and harming economic growth. Non-solicitation provisions, on the other hand, which prevent departing employees from taking other employees or customers with them to their new venture, don’t raise the same policy concerns and, accordingly, are not the focus of the New York initiative.

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Allowing Departing Employees a Longer Stock Option Exercise Period

The well-known venture capital firm, Andreessen Horowitz, is now recommending to its portfolio companies that employees who hold vested stock options and leave the company have a much longer period following departure in which to exercise the option. As noted in the Andreessen article, the typical stock option will permit exercise within 90 days following departure. Andreessen is recommending that the period be extended to 10 years.

stock-optionsThe rationale for this change is that, upon departure, many employees simply do not have the cash needed to exercise the option and then to pay the taxes that are imposed upon exercise. If the company is still private, the employee will likely not have the ability to immediately sell the shares following exercise, which would otherwise solve the cash flow issue, at least as to the taxes. By extending the period in which the employee can exercise, there is time for the employee to raise the funds to pay the exercise price and taxes, or even better, for the company to be sold or go public, allowing the employee to immediately realize value on the option. Alternatively, the company might fail sometime during the 10 years following departure, in which case the employee will be happy not to have forked over money for a share purchase and taxes and nothing to show for it.

This is an unambiguously better deal for employees, though the Andreessen post details some tweaks companies can make to the grants to protect itself. One might wonder why a VC firm is advocating a pro-employee change in terms. I think the answer is that a 90-day exercise period poses significant practical issues for employees who don’t have much ready cash and it therefore could discourage potential employees from joining a startup and not practically being able to realize value in an equity grant. By extending the period to 10 years, companies can potentially increase the pool of qualified employees.

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Tenure Voting for Shareholders

Steven Davidoff Solomon, the New York Times DealBook’s Deal Professor, highlights an academic paper that he and others wrote, advocating tenure voting for public companies.  The basic concept is that the longer you hold a company’s shares, the more voting power you have when the company conducts shareholder votes.  The purpose is to incentivize long-term holding and accordingly dilute the voting power of activist shareholders that buy up a block of shares, immediately agitate for change that helps them in the short term, and then unload the shares, to the ultimate detriment of the company.  In fairness, I should note that the activist investor community contests this characterization of what they do, arguing that the changes they demand are beneficial to the companies in the long-term as well.  I will not wade into that argument but simply assume for the sake of this post that as a policy matter, we should try to encourage a long-term orientation among shareholders. …

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Should Vendors Agree to Be Paid in Equity?

The Wall Street Journal recently detailed the increasing willingness of service providers to startups to accept the startup’s equity as payment for services.  With the startling growth of so-called unicorns, private companies like Uber that have achieved stratospheric valuations, there is a hope among many vendors that they’ll get lucky with one or more of the startups in which they accept equity.  I previously wrote on this topic, focusing specifically on law firm payment arrangements.  That post mainly addressed the possible conflicts of interest that can be associated with equity compensation, but for today I want to focus on whether it makes sense, as a business matter, for service providers to accept equity.

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The Distinction Between Entity Name and Trademark

When I assist clients in setting up entities, one of the threshold matters, of course, is the selection of a name for the entity.  Once that is settled, and the entity is set up, many clients assume the job is complete as far as protecting the business name, unaware that protection of the name for purposes of trademark law involves a completely separate legal analysis and process.  The purpose of this post is to briefly explain the difference.

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Employee vs. Independent Contractor

In my practice, the question of classification of service providers as employees or independent contractors has come up with increasing frequency.  This probably results from the increasing amount of freelancing in the economy in recent years. It’s also been in the mainstream news recently, with highly publicized actions against Uber and Lyft for alleged misclassification of their drivers. A classification of a worker as a contractor is generally preferred by companies, as it eliminates a wide range of costs and legal protections available only to employees, e.g., unemployment insurance, workers compensation, tax withholding, minimum wage and overtime laws. Because of this, federal and state regulators are increasingly scrutinizing classification issues, and employers need to be aware of this and be careful and conservative in their classification decisions. …

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