News and Articles

Protecting Your Business Trade Secrets

Yogi Patel - Tuesday, September 08, 2015

Intro

Generally speaking, a trade secret is a valuable piece of information used by a business that is not known to the public. A trade secret can be a business plan, pricing model, or almost any other method or process with a proprietary value that is used and exclusively known by a business. While New York is one of the few states that has not adopted the Uniform Trade Secrets Act, its definition of a trade secret, which is taken from Section 757 of the Restatement of Torts is still quite broad: “A trade secret consists of a formula, process, device, or compilation which one uses in his business and which gives him an opportunity to obtain an advantage over competitors who do not know or use it.”

Trade secrets are granted certain protections under the law, and while virtually anything can be considered a trade secret, once information becomes publicly known, it is fair game for anyone to use. That is why it is not only integral that business take necessary measures to protect their trade secrets on paper, but that they are also cautions as to whom they disclose their secrets and risk them becoming public.

Document Your Trade Secrets

As an initial measure, businesses should document information they wish to be classified as trade secrets in order to show that they view and treat the information as such. In documenting trade secrets, businesses should mark the information as confidential information and include a notice of confidentiality expressly stating that the information is protected and owned by the company, is not to be reproduced, and should not be disclosed outside the company or to unauthorized persons within the company unless expressly by the company.

Additionally, businesses should promulgate internal rules and procedures for their employees with regards to the accessing, protecting, and disclosing of company trade secrets. The business should create step-by-step processes, clear definitions of what is considered protected information, and require acknowledgement by employees that they understand them.

Finally, businesses should log any disclosures and uses of trade secrets. Tracking such disclosure and use can be vital for investigating any unauthorized disclosure of use in the future and holding the responsible party accountable.

While these measures are appropriate for documenting the status of information as trade secrets, they do not alone necessarily protect trades secrets from disclosure. Businesses should take additional steps to impose affirmative obligations on anyone who may access the trade secrets not to disclose them, and should diligently protect trade secrets from corporate espionage.

Contractual Protections

Under New York Law, the two most common means for protecting trade secrets from being disclosed by parties with who may access them are through
non-disclosure agreements and agreements not to compete.

Employers routinely require their employees to enter into contracts in which they agree not to compete with the employer for a specified period of time. While the enforceability of non-compete agreements can vary with the circumstances of employment, the need to protect trade secrets is a factor that weights heavily in favor of upholding a covenant not to compete. The reasoning applied by New York Courts, known as the inevitable disclosure doctrine, is that even though no inappropriate disclosure of a trade secret has occurred, a former employee should be prevented from working for a competitor under the theory that she will inevitably disclose the trade secrets of her former employer. Courts reach this conclusion where, among other factors, an employee would be unable to perform her job with the new employer without using her former employee’s trade secrets, the new employer is a competitor of the former employer, and the overall nature of the industry and the secrets themselves. Employers are strongly encouraged to have all employees who have access to their trade secrets to sign non-compete agreements.

In a non-disclosure agreement, a person or entity is agreeing not to reveal confidential information that another entity is sharing with them. Typically, an employer will require its employees to sign a non-disclosure agreement as a condition to their employment that prohibits the employees from disseminating trade secrets and other confidential information both while they are working for the employer and once their employment is terminated. Employers necessarily need to allow certain employees access to information that they wish to protect, and a non-disclosure agreement recognizes this reality and provides employers with express remedies, including an injunction, for instances where employees breach these agreements.

Another scenario in which a non-disclosure agreement is used is where a business is sharing a trade secret with another entity or person to discuss the prospect of entering into a joint venture, investment, or other business arrangement. An investor or potential partner would need to know what she is getting into before agreeing to anything, but the business has the need to protect its trade secrets, particularly where no subsequent relationship is created between the parties. A non-disclosure agreement allows an investor or other entity to discuss a business’s trade secrets for an express purpose and prohibits any future disclosure under the threat of substantive penalties and an injunction. While in most circumstances a non-disclosure agreement serves as an adequate deterrent, some unscrupulous actors may still decide to disclose trade secrets as a form of espionage or theft, which in turn renders the information public. This is why, in addition to having iron-clad agreements, businesses must perform due diligence on any party to whom they are considering disclosing a trade secret.

Due Diligence

Before disclosing any information to anyone, businesses should always look into anyone to whom they are potentially going to entrust with their proprietary information. While it may be the exception to the rule, there are unfortunately some individuals and entities who have no limits to what they will do to gain an advantage over the competition. Business should investigate whether or not a prospective party has ever been accused of stealing trade secrets in the past, has committed any other acts of dishonesty previously, and what his or her general reputation is in the industry.

Additionally, a business should limit the number of persons to whom the trade secrets are disclosed, especially with regards to non-employees and other competitors. It’s common sense that the more people there are that know something, the greater the chances are that it is disclosed. Even though a business may require all parties to each individually sign a non-disclosure agreement, you can never know who will violate its terms.

Remedies for Trade Secret Theft Under in New York

Under New York law, the cause of action against a person or entity that improperly uses or discloses a trade secret is misappropriation. Misappropriation is the improper use or disclosure of a trade secret that a party obtained through employment or other relationship in which he or she had a duty not to disclose such information. Misappropriation also includes the use or disclosure of trade secrets obtained through improper means, such as fraud or theft.

Pursuant to a claim for misappropriation, a business may receive what is known as injunctive relief in addition to damages (monetary compensation). An injunction is a court order prohibiting a party from further sharing a business’s trade secrets. Damages include the economic losses a business suffers as a result of the misappropriation and can include any profit the defendant made from the inappropriate disclosure. While punitive damages are available, they are rarely granted.

Conclusion

Businesses must do everything they can to prevent the misappropriation and publication of their trade secrets. Public disclosure can be devastating to a business’s livelihood, and although there are legal remedies for the improper use or disclosure of a businesses trade secrets, once they become public, they are no longer unique to the entity that owned them. Non-disclosure agreements, non-compete clauses, internal processes, and due diligence are all essential steps a business should take in protecting its secrets and minimizing the chance they are disclosed.

This article is not intended to be nor should be construed as legal advice. Businesses looking to protect trade secrets should seek the advice of counsel.

August 2015 Newsletter

Yogi Patel - Tuesday, August 04, 2015

Dear valued clients and supporters: This month's newsletter will focus on: (1) the EEOC’s declaration that workplace discrimination based on sexual orientation is illegal; (2) the New York State Wage Board's unanimous vote to raise the minimum wage for restaurant workers in the fast food industry to $15 an hour; and (3) the Second Circuit's decision in Glatt v. Fox Searchlight Pictures, Inc., providing valuable clarity on the question of whether interns are "employees" -- and therefore entitled to minimum wage and overtime pay under the Federal Fair Labor Standards Act and New York Labor Law.

 

Sexual Orientation and the Workplace
Title VII of the Civil Rights Act of 1964 is at the heart of Federal anti-discrimination law. It prohibits employers with at least fifteen employees from discriminating on the basis of race, color, religion, sex, or national origin. Sexual orientation discrimination is not expressly included on the list and several federal courts, both at the district court and appellate level, have previously held that the statute’s ban on sex discrimination did not encompass sexual orientation discrimination. But on July 15, 2015, the Equal Employment Opportunity Commission (EEOC) issued a ruling finding that sexual orientation discrimination is “associational discrimination on the basis of sex.” Thus, adverse actions taken by employer on account of an employees sexual orientation will now be considered illegal by the EEOC and LGBT employees will have an independent, stand-alone basis to lodge a discrimination complaint before the EEOC under Title VII. It is too early to know how courts will view this new development, and of course most employers are also governed by State and local laws that may already prohibit discrimination on the basis of sexual orientation.


Minimum Wage and Fast Food Industry Workers
The New York State Wage Board recently recommended raising the minimum wage for restaurant workers in the fast food industry to $15 an hour. In the event the Wage Order is accepted by the Commissioner in its current recommended form, the mandate would apply to all workers in fast-food restaurants that are part of chains with at least 30 outlets. More specifically, the change will apply to workers who cook, clean, serve customers, make deliveries, or perform routine maintenance work as part of their day-to-day duties. The proposed Wage Order, if implemented as is, will apply to all fast food restaurants associated with a chain of 30 or more outlets, irrespective of how many restaurants the individual employer owns. The proposal, once officially published, will then be followed by a 15-day public comment period. Comments will be accepted online and by mail. Based on those comments, the Commissioner may accept, reject or modify the Board's recommendations and file a Wage Order. The Wage Order must be filed within 45 days once the report is filed. The Order is then subject to an additional regulatory process thereafter. We will continue to monitor the situation and provide updates as the process progresses, but if you have specific questions about how this may affect you as an employee or an employer, please contact us.


Interns v. Employees
In Glatt v. Fox Searchlight Pictures, Inc., the action was brought by former production interns who worked on the Oscar-winning movie Black Swan, as well as a publicity intern at the company’s New York corporate office, all of whom were unpaid. The interns argued they should have been classified as employees and, thus, should have been compensated for their efforts. The law surrounding this issue has been unclear for several decades due to the guidance offered by the U.S. Department of Labor and conflicting interpretations by courts across the country, making it difficult for an employer to know how to comply. The Second Circuit, which covers New York, observed in Glatt that the question of an intern’s employment status is a highly individualized inquiry and not subject to a bright line rule. To assess whether interns are “trainees” under the Fair Labor Standards Act (“FLSA”) (and therefore “exempt” from overtime and minimum wage rules) or “employees" (and therefore entitled to the laws’ protections), the court adopted what it calls the “primary beneficiary” approach. Under the "primary beneficiary" test, there are at least seven independent factors that should be analyzed under the new approach to determine whether the position is truly an internship or an employment situation. Employers are advised to fully understand their obligations under Glatt prior to hiring an intern.


A more in-depth article on this issue, including the seven factors under the primary beneficiary approach will be posted here on our website shortly and readers are encouraged to follow us on Twitter (@lloydpatelllp) and Facebook to receive updates on this and other issues throughout the month.

July 2015 NEWSLETTER

Yogi Patel - Tuesday, June 30, 2015

Dear valued clients and supporters: This month's newsletter will focus on: (1) proposed changes to the overtime rules by the U.S. Department of Labor that could potentially extend overtime protection to 5 million white collar workers; (2) New York City's passage of the The Fair Chance Act impacting an employers ability to inquire about a job applicants criminal history prior to hiring and (3) a closer look at selling a company or buying back shares in the context of our continuing series of articles on start-up entrepreneurs.

Proposed changes to overtime rules

The U.S. Department of Labor announced today that it was proposing a rule change that would effectively make millions of white collar employees who are currently considered "exempt" from over-time - eligible for overtime. One of the many factors that currently determines whether an employee is exempt or not from overtime is the total amount of wages earned annually. Today, certain professionals and managers are exempt from overtime if they make more than $23,660 a year and perform specific duties. The proposed rule would now set the overtime threshold to $50,440.00. Additionally, the proposed rule would simplify the identification of nonexempt employees, thus making the executive, administrative and professional employee exemption easier for employers and workers to understand and apply. Both employers and employees are advised to consider the implications of these changes in the event the rule is adopted and implemented as proposed.

The Fair Chance Act

New York City's newly passed Fair Chance Act (the “Act”), which will go into effect on October 27, 2015, prohibits employers from inquiring about a job applicant’s criminal history, including arrest and conviction records, during interviews before a conditional offer of employment is made. In addition, the Act prohibits employers from conducting pre-offer searches of public records and certain consumer reports that contain criminal conviction information. Once a job applicant is given a conditional offer of employment, the employer can do a background check and ask for information about convictions that may be relevant to the job. For more information about the Act, please visit our article here.

Start-up ventures and selling or expanding the business

We invite you to read our last article in the three-part series of articles on start-up ventures and entrepreneurs now posted here. The last article focuses on decisions an entrepreneur who has successfully grown a company and is looking to retire, cash-out, or start a new venture may make. The entrepreneur who is looking to sell should consideration whether the sale should be structured as a stock sale or an asset sale. There are tax and control ramifications that the seller must consider, depending on what they decide to do. The entrepreneur may also decide to buy back the shares that are were issued during the capital raising stage and consolidate control before selling to a third party or simply holding on to the company for a future sale after the buy-back occurs. We invite you to read the full series of articles: Attracting Investment for the Amateur Entrepreneur Part IAttracting Investment for the Amateur Entrepreneur Part II: Additional Capital, and Attracting Investment for the Amateur Entrepreneur Part III: Selling the Business or Buying Back Stock

The New York City Fair Chance Act Requires Employers to More Carefully Evaluate Applicants With Criminal Records

Yogi Patel - Monday, June 29, 2015

The newly passed Fair Chance Act (the “Act”) will prohibit employers from inquiring about a job applicant’s criminal history, including arrest and conviction records, during interviews before a conditional offer of employment is made. In addition, the Act, which Mayor Diblasio is expected to sign shortly, will ban employers from conducting pre-offer searches of public records and certain consumer reports that contain criminal conviction information. Once a job applicant is given a conditional offer of employment, the employer can do a background check and ask for information about convictions that may be relevant to the job. 

The reasoning behind proponents of the Fair Chance Act is simple: job applicants should not be automatically screened out of the hiring process based solely on past mistakes before they’ve had an opportunity to prove their qualifications for the position they seek.  Under the Fair Chance Act, employers will now be required to evaluate these applicants’ fitness for the job, just like any other applicant, instead of screening them out before they’ve even had a chance. The Fair Chance Act passed the New York City Council by a vote of 45-5-1.

New York State law already limits when employers can inquire about or make employment decisions based on past arrests that never led to any conviction. The law also already requires employers with four or more employees to do a careful analysis of any applicant with a criminal record before they rule out the applicant on that basis. Employers unfamiliar with those restrictions should seek legal guidance to develop a consistent procedure and policy for handling applications by individuals with criminal histories. 

Let’s be clear: the Fair Chance Act is not a requirement that employers hire individuals with criminal convictions and does not change existing law; it simply requires them to judge these applicants on their merits before considering their prior convictions. 

The Fair Chance Act takes the criminal record question off the table until a conditional offer of employment is made, leveling the playing field for job seekers with criminal histories and ensuring that all New Yorkers have a “fair chance” at employment, especially if the applicant’s past conviction really has no bearing on the job they are applying for. The Fair Chance Act does not apply to employers with less than four employees. However independent contractors who are not employees are considered persons in the employ of the employer if they are hired to carry out work in furtherance of the employer’s business enterprise, so small businesses that use independent contractors should still take note.

After making a conditional offer of employment, the employer must notify the job applicant that a background inquiry will be performed; this is a new requirement. If the applicant has a prior conviction, the employer must first perform the careful analysis required under previously existing law—evaluating the particular crime the applicant was convicted of and its potential relationship with the position and the job—and then provide a copy of its inquiry and analysis to the applicant. If, after receiving information regarding the applicant’s record, the employer no longer wants to employ the applicant, the employer must explain why and provide a copy of the record it relied on in making that decision. The position must then be held open for three days so the employer and applicant can engage in an interactive discussion, considering the employer’s requirements and the applicant’s evidence of good conduct, if the applicant so chooses. This time also allows the applicant to question any inaccuracies on the record, which is not as uncommon as one might assume.

Failure to adhere to the strict notice procedure will result in an automatic presumption that the employer has engaged in unlawful discrimination based upon the applicant’s criminal history in any future litigation. The presumption can only be overcome by “clear and convincing” evidence presented by the employer. Of course, this means that like all employment decisions, employers must keep very good records of their decision-making process and have a solid and consistent policy and procedure in place that is closely followed.

Other laws currently in place still require background checks and prevent people with certain serious convictions from working in daycares and as home health aides, among other positions. The Fair Chance Act does not affect these jobs or change the background check requirements. These employers are allowed to tell applicants that the jobs are subject to a background check. Employers that are required by law to conduct background checks and exclude people with specific convictions may still do so. Employers may still conduct criminal background checks and deny employment to workers with conviction histories that are directly related to the job or pose an unreasonable risk.

The attorneys at Lloyd Patel LLP are available to help employers develop or modify their employment manuals and policies to comply with the law and to consult with employees who believe they have been the victim of unlawful discrimination. Contact us at info@lloydpatel.com or (212) 729-4266.

Attracting Investment for the Amateur Entrepreneur Part III: Selling the Business or Buying Back Stock

Yogi Patel - Friday, June 26, 2015

Intro


Once an entrepreneur has used their investments to grow the business and sustain substantial profits over the course of a few years, the time may be ripe for her to make another important decision: sell the company or buy back shares of stock from investors.

           There are many reasons why an entrepreneur may wish to sell her business—she may be looking to retire, needs a break, or may be simply looking for a new venture—but regardless, there are many factors and obligations she must consider once she has decided to sell. This article will address many of the most important steps in the process, including developing an exit strategy, obtaining a valuation, and deciding whether to make an asset or stock sale of the business.           

Alternatively, the entrepreneur may decide to keep growing the business but only after buying back the shares of equity that were sold to investors. Buying back equity may be an obligation, a right, or a negotiation, depending on what was previously agreed to by the parties involved, but the entrepreneur’s goal should be to increase future profits through an increased share in equity or to secure financing at a lower interest rate elsewhere. Of course, there are additional options that a successful entrepreneur may pursue at this point, but the scope of this article will be limited to these two possibilities as they are among the most common decision amateur entrepreneurs make.


For What It’s Worth

Before doing just about anything, the entrepreneur would be well advised to obtain a valuation of her business from an appraiser. Even if she has an accurate idea of what the business is worth, being able to demonstrate an independent, objective analysis is essential to establishing a credible asking price. You will receive a detailed, written assessment that you can share with potential investors as well as use for making your own determinations about the future of the business.


Prepare and Document

As with running a business, the more organized and prepared you are when it comes to selling your company, the better off you will be. In addition to obtaining an official valuation, you should also organize the past several years of tax returns, create a list of inventory, equipment, and other items that will be sold with the business, and obtain copies of any contracts, leases, or other documents that create an obligation or right for your business.

The especially ambitious entrepreneur should not only organize all these materials, but she should also prepare a summary or explanation that also includes the history of the business and its operations. You want to present a business that is organized, operational, and profitable.


So Who is Ready, Willing, and Able?

A business owner may have a clear, organized presentation of a highly desirable business, but without a viable purchaser, no sale will ever happen. Finding the right buyer can prove to be a challenge, and it may be something for which you should enlist professional help.

Brokers are professionals whose job is to research and vet prospective buyers and bring them to the table. Working with a broker allows the business owner to stay focused on the business and generally keeps news of the sale much less public. The down side, of course, is that a broker’s service is not free.

For many amateur entrepreneurs, the ideal scenario is one in which a current employee, manager, or other trusted person with knowledge of the business’s operations is interested in buying, in which case there is no need for a broker. However, if you are inexperienced and attempting to sell to the general public, working with a broker might prove to be invaluable.

No matter whether you use a broker or not, you should always do your own due diligence with prospective buyers and require that they sign a confidentiality/nondisclosure meeting before you discussing your business with them.


How Should You Sell? Stock Sale or Asset Sale?

One of the most important decisions an entrepreneur looking to sell her business must make is whether she is going to insist on a stock sale or if she is open to an asset sale. This is a difficult decision to make because an asset sale is typically more attractive to a buyer, but a stock sale is usually in the seller’s best interest, so the parties interested in the transaction have even more to negotiate.

A stock sale is where a buyer purchases the owner’s share of a corporation. The buyer obtains ownership of the corporation and thereby title to all the company’s assets, but the buyer also is exposed to additional liabilities, such as latent environmental concerns and employment issues.

An asset sale is where a buyer purchases each asset of the company, such as equipment, licenses, goodwill, trade secrets, and inventory, but the seller retains ownership of the legal entity, the entity’s cash, inventory, and certain debts and receivables. Buyers prefer this not only because it is easier for them to avoid taking on additional liabilities held by the company, but there are additional tax benefits offered by the IRS.

More often than not business are sold through asset sales.  However, this is not always the case.  Sellers may wish to mitigate some of the concerns of buyers with regards to a stock sale rather than give into the demand for an asset sale. For example, a seller could make specific representations that the business does not have particular liabilities and indemnify the buyer from certain liabilities as well in order to make a stock sale more attractive to a buyer.

In the end, negotiations will also depend on the desirability of the business, how urgently the seller needs to find a buyer, and what additional terms and conditions can be agreed to in order to sway one party. Having a detailed plan, well-prepared records and documentations, and the advice of experts can prove to be invaluable to a seller hoping to make a stock sale.


Share the Wealth, but Pay Your Taxes (and other Debts)

When a business is finally sold, this is considered a liquidation event that triggers rights of both preferred and common shareholders as defined by the corporation’s various agreements. As discussed in the previous articles, preferred shareholders receive their payments before common shareholders at whatever the agreed upon calculation of preferred stock price upon liquidation is, including the factoring in of any multiplier. If preferred shareholders have conversion rights, they may opt to exercise those as well.

After preferred shareholders have been paid or their shares have been converted, common shareholders receive their percentage of profits. Keep in mind, however, that there may be additional debts or expenses to pay, such as loans, taxes, and employee-related expenses, so before distributing any profits, business owners should consult with an accountant to fully understand their obligations upon liquidation.


Holding on to Your Business

If instead, an entrepreneur wishes to continue operating a business, she should be sure to understand the rights of all preferred shareholder investors and what her options are with regard to buying back preferred shares. For one, after a certain amount of time or when the company reaches a particular valuation, preferred shareholders could have the right to sell their shares, or, alternatively, the owner may have the right to buy back the shares. Particularly if a company would be required to pay a fixed, preferred dividend, it may be financially prudent to buy out preferred shareholders.

            While purchasing back preferred shares will reduce the company’s immediate liquid capital, it does increase the share in equity for the purchaser of the preferred shares, and if additional funding can be secured at a lower interest rate, (which should be possible now that the business is worth more than when it started) then the economic conditions may be ripe for such action.


In Conclusion

Selling a business typically can take anywhere from six months to a few years. Any entrepreneur who is starting a business with the intention of selling it eventually should seriously begin planning the sale as part of the company’s formation. This means not only setting financial objectives, but also negotiating for the right terms with investors that gives the entrepreneur the greatest flexibility to grow the business and sell it for the maximum profit.

Every business has its particularities and constraints, and entrepreneurs should consult with expert attorneys and accountants along the way to ensure that their documents are valid and reflect the goals of the company, and that their financial planning and tax obligations are being executed properly. Fortunately, access to capital and other forms of assistance are at an all time high, and it is an exciting time in which the amateur entrepreneur with the next great idea can realistically make it into reality without relinquishing ownership and control.


This article was intended to provide an overview and is not to be construed as legal advice.


Attracting Investment for the Amateur Entrepreneur Part II: Additional Capital

Yogi Patel - Friday, June 05, 2015

Intro


After an entrepreneur has used her initial “seed” money to start her business and begin operations, she may find that seeking out an additional capital infusion is necessary or desired to continue her company’s growth. While there are many avenues through which additional monetary resources can be sought, this article will focus on the means briefly discussed already in Part I, namely preferred shares of stock. 

Preferred stock is a class of shares that by definition entitle their holders to priority payment on dividends and their asset value in the event of liquidation over holders of common stock. Preferred stock typically give investors a fixed, prioritized return, but they do not necessarily come with voting rights or a proportional share in the value of a company when it is sold. However, the specific attributes of the preferred shares that a company sells are variable, and a major aspect of negotiations with investors is designing the shares in a way that meets the needs of both parties. 

This article will discuss three of the most important negotiable attributes of preferred stock: liquidation preferences, conversion rights, and voting rights. The article will also briefly discuss the federal and state registration requirements entrepreneurs must follow when executing such transactions. 


Liquidation Preferences: Participating v. Non-Participating Shares


Non-participating preferred stock entitles its holders upon liquidation of the company to the return of their investment plus any accrued dividends prior to the distribution of any proceeds of the sale to the holders of common stock. A liquidation event typically refers to the sale of the company.

Participating preferred stock entitles its holders to the same returns as are granted by non-participating preferred stock as well as their proportional share in the remaining proceeds of a liquidation event. 

Clearly then participating preferred stocks are more desired by investors whereas non-participating preferred stocks are preferred by companies, making this designation a key point of negotiations. While the financial needs, valuation, and potential return on investment of a company will in great part dictate whether preferred shares sold to a particular investor are participating or not, companies can offer a higher dividend rate or a liquidation multiplier as an alternative to proportionate participation in the proceeds of a sale. 

Offering to pay a higher dividend to an investor is enticing in that it presents a fixed, prioritized return that is of greater value than a dividend paid on common stock. This scenario may be enough to sway negotiations in the entrepreneur’s favor, but if it is not, she may also offer a higher liquidation multiplier to the investor.

While preferred stock entitles its holder to the return of her entire investment upon liquidation, this value may be augmented by a multiplier that is negotiated by the parties. A multiplier also gives the investor a fixed return that is prioritized over common shareholders, which in turn gives the entrepreneur an additional negotiating tool to avoid issuing participating shares of stock.


Conversion Rights


A related but distinct, variable attribute of preferred stock is whether or not the holder of the stock has the right to convert her shares to common stock, i.e. has conversion rights. If the holder of preferred stock has conversion rights but the shares are non-participating, she has the choice between receiving her fixed liquidation preference or giving it up and converting her shares to common stock and thereby receiving her proportional share in the proceeds of a liquidation event. The following example illustrates when each choice would be more beneficial to an investor:

An investor purchases a 10 percent interest in a company for $100,000 in the form of non-participating preferred stock. The price is $1 per share, granting the investor 100,000 shares of non-participating preferred stock. The remaining 900,000 shares are all common stock.

If the company is later sold for only $900,000, the value of the common stock would go down, but since the preferred stock price is fixed, the investor would still receive $100,000 first and the remaining $800,000 would be distributed the common stockholders. Under this scenario, had the investor chosen to convert her shares to common stock, there would be $900,000 to divide over 1 million shares of common stock, resulting in a price of $0.90 per share and just $90,000 to the investor. 

Alternatively, if the company sells for $2,000,000, the value of the common stock would significantly increase. If the investor does not convert, she would still receive her $100,000 first, but if she were to convert, her 10% stake would be worth $200,000, so clearly she would exercise her conversion rights here. 

Conversion rights are another great negotiation tool for entrepreneurs and can create a mutually-agreeable middle ground where the company will not have to issue participating shares and allow an investor to “double dip,” and an investor gets the benefit of choosing between the greater of two potential outcomes, the worst of which is her prioritized, fixed return. 


Voting Rights


Preferred stock does not typically come with voting rights because it is generally offered to investors to whom the company does not want to extend any control over its operations; the arrangement is strictly financial. However, circumstances may warrant that an entrepreneur offer preferred stock that comes with either full or limited voting rights. By presenting the investor with the opportunity to have a voice in the operations in the company and potentially even representation on the board of directors, the entrepreneur may be able to receive more favorable financial terms from the investor or to persuade a desired investor who otherwise might not be interested. 


Entrepreneurs should take note that while they may not explicitly offer preferred shareholders any voting rights, some states expressly provide that all shareholders, including preferred shareholders, possess particular minimum voting rights and be permitted to vote on certain matters. 


Securities Registration Relating to Preferred Stock Sales


One of the main differences between this round of investing and the initial, seed round is that at this point the entrepreneur is most likely going to be working with experienced, savvy investors rather than friends and family. Because of the obvious, practical differences between the two types of investors, the law imposes different requirements for transactions with each classification.

The professional or experienced investor to whom the entrepreneur should seek to sell preferred stock is defined as an accredited investor, which we defined in Part I of this series. An entrepreneur may file for registration exemption with the Securities and Exchange Commission (SEC) much like she did during the friends and family round under Regulation D, but instead of applying under rule 504, the entrepreneur should use rule 506. Rule 506 allows an investor to raise an unlimited amount of money provide she meets one of two exceptions. 

The first exception falls under rule 506(b), where the company: (1) Must not solicit generally or advertise the securities; (2) May sell securities to an unlimited number of accredited investors and up to 35 non-accredited purchasers who demonstrate they possess a certain level of knowledge and experience to be able to asses the risks and rewards of the investment; (3) Must give non-accredited investors the same information they give to accredited investors; (4) Must be able available to answer prospective buyer’s questions; and (5) Provide certain financial statements certified by an independent public accountant. 

The second exception falls under rule 506(c), which allows the company to broadly solicit and generally advertise the offering but still be deemed to be undertaking a private offering if it (1) Only offers to accredited investors; and (2) Takes reasonable steps to verify the investors are accredited. 

While one of the advantages of Rule 506 exemptions is that it pre-empts state registration and qualification requirements for offerings, it does not pre-empt state laws with respect to registering as a broker-dealer, so entrepreneurs should not assume that a 506 exemption precludes them from needing to take action on a state level.


Conclusion


Entrepreneurs who reach this phase of investment have generally already navigated the financial, legal, and other obstacles they faced in setting up their company and beginning operations, and they should exercise the same diligence and effort in negotiating and transacting with accredited investors. Having an understanding of the various negotiation tools and potential arrangements with investors gives entrepreneurs vital knowledge and leverage for reaching financial terms that are of a maximum benefit to their companies.  

As with any major financial transaction, entrepreneurs are encouraged to consult with an attorney before taking any official action, as each state has its own particular requirements that must be followed, and entrepreneurs should be confident that they are in good standing on both a state and federal level. The above article is not intended to be legal advice or a complete procedural manual for accepting capital from accredited investors. Additionally, every business has its unique requirements and speaking with an attorney is the best way to know that the needs of your business are being met in compliance with the law.

June 2015 NEWSLETTER

Yogi Patel - Thursday, June 04, 2015

Dear valued clients and supporters: This month's newsletter will focus on: (1) the treatment of household employees under Internal Revenue Code and state statutes; and (2) a closer look at raising capital through preferred shares in the context of our continuing series of articles on start-up entrepreneurs.

Household Employees


While it is not impossible to lawfully employ a household employee, it can be tricky. A household employee is a person who generally does such domestic work as housecleaning, cooking and/or child care. The implications of hiring a household employee often surface when the employee files for unemployment or disability insurance or if the employee simply goes to a reputable accountant to file their yearly income taxes - thereby triggering what is known as the "nanny audit" in the accounting and legal industries. Employers should be mindful that the Internal Revenue Code requires a household employee to be treated similarly to any other employee. Thus, besides the wages paid to the employee, the employer is also responsible for social security, medicare, and unemployment insurance (under both State and Federal Law) contributions on the employee's behalf. The employer must also withhold taxes and pay the employee as a W-2 employee and make timely payments to the IRS for any withholdings. In addition, New York law requires employers to obtain a Workers' Compensation policy as well as a disability policy. Employers are also advised to comply with the minimum wage and overtime provisions of the labor law as household employees are not exempt from these laws. Failure to adhere to these regulations under Federal and State law subject the employer to personal liability. Both employers and employees are advised to consider the exposure in back-taxes to the IRS, as well as the possibility of criminal prosecution for willful failure to comply. 

 

Start-up ventures, raising money and legal obligations


Last month's newsletter rolled out the first article of a three-part series on start-up ventures and capital. The first article, focuses on corporate structures, corporate formalities and applying for securities registrations exemption prior to the "seed" money or "friends and family" stage of raising capital. The second article , focuses on issues faced by a start-up entrepreneur that has already used the initial “seed” money to start the business, but is now at the stage requiring additional capital infusion to fuel the company’s growth. While there are many avenues through which additional capital can be raised, the second article in the series considers the issuing of preferred shares of stock in the company as the mechanism for raising capital. 
      

Preferred stock is a class of shares that by definition entitle their holders to priority payment on dividends and their asset value in the event of liquidation over holders of common stock. Preferred stock typically give investors a fixed, prioritized return, but they do not necessarily come with voting rights or a proportional share in the value of a company when it is sold. However, the specific attributes of the preferred shares that a company sells are variable, and a major aspect of negotiations with investors is designing the shares in a way that meets the needs of both parties. 

The article on our site  discusses three of the most important negotiable attributes of preferred stock: liquidation preferences, conversion rights, and voting rights. The article also briefly discusses the federal and state registration requirements entrepreneurs must follow when executing such transactions.

Attracting Investment for the Amateur Entrepreneur Part I

Yogi Patel - Thursday, June 04, 2015

Intro


With access to information and the ability to share resources at an all time high, it seems easier than ever for anyone with an idea and a plan to create her own business. Amateur entrepreneurs across the country are finding new ways to attract capital and technology for developing their ideas in ways that are evolving the modern economy and changing how business is conducted. Still, for many of these new business owners, their first “seed” money comes from friends, family, and other casual investors, and they may not be aware of the state and federal laws and regulations that apply to such seemingly informal transactions. 

For any transaction in which a business is accepting money as an investment, there are registration requirements and other restrictions imposed by both the Securities Exchange Commission (SEC) and state law. There are even actions that a business owner must take before even offering securities or other equity in exchange for capital, and a failure to comply with federal and state requirements could leave the uninformed entrepreneur inadvertently facing charges as serious as security fraud. 

Of course, with the right planning and guidance, there should be nothing for the entrepreneur to fear, and she should be able to attract the investments she needs to start and grow her business. 

This article is the first in a series intended to provide the amateur entrepreneur with a general idea of how to form a business, accept investment capital at various stages of growth, and ultimately sell the company and distribute the profits if that should be the desired outcome. The articles will focus primarily on business owners whose initial investments will come from friends in family and who are operating in New York, but the general principals covered will be useful to anyone looking to start a business in most states. While each article should give the amateur entrepreneur a solid understanding what steps she will need to take, it is not intended to provide legal advice and anyone seeking investment in her business is strongly encouraged to speak to an attorney before taking any action.

So, let’s start from the beginning. You have an idea you want to turn into a business, you are confidant you can get friends and family to invest, and you are wondering what you should do. Here is what we suggest, using New York State as an example:  


Step 1: Incorporate Your Business


Before you can do anything, you need to officially create your business. Pick a name (make sure it is available), the entity type, and the state in which you are incorporating. While the scope of this article is not intended to cover step-by-step how to incorporate, for its purposes, New York entrepreneurs seeking to sell shares in exchange for investment funds should file as a corporation. This can be done online by filing with the New York Department of State.  


Step 2: Initial Corporate Formalities


After your corporation is established, there are formalities you must follow in order to operate the business and have shares of stock to sell to investors. These include, but are not limited to, appointing at least one director of the corporation, creating the corporation’s bylaws, opening a bank account in the corporation’s name, holding an organizational meeting, and issuing stock certificates to the initial owners of the corporation. While there is no legal requirement that you have a lawyer prepare any of the documents necessary for carrying out any of these steps, because they create enforceable rights and responsibilities, it is always encouraged that you consult with an attorney prior to executing any legal documents. 


Step 3: Applying for Securities Registration Exemption


Once your business is operational and you have shares of stock to sell to investors, which are classified as corporate securities, you need to register your securities with the SEC or file for an exemption. Small business owners seeking investment from friends and family should consider filing for exemption from the registration requirements of federal law (Securities Act of 1933) under Regulation D, rule 504 and under their local state law.

Regulation D, rule 504 allows a corporation to receive up to $1 million from investors over a 12-month period. The advantage of applying under Rule 504 is that the investors are not required to be accredited. An accredited investor, as the term applies to individuals, is defined as someone (a) whose individual net worth, or joint net worth with his or her spouse, is over $1 million; or (b) who had an income of over $200,000 or a joint income over $300,000 in the two most recent years and who has a reasonable expectation of reaching the same level in the current year. Many amateur entrepreneurs are not fortunate enough to have such wealthy friends and family, Rule 504 provides a welcome exemption.

One limitation of Rule 504 as compared to some other exemptions is that it requires that all such non-accredited investors be preexisting contacts of the business owner issuing the stock and that no general solicitation is therefore permitted. This is likely not an obstacle for amateur entrepreneurs in that they typically are seeking investment from friends and family, but it is important to note that they should not also seek to advertise or solicit generally and to people they do not already know.

Additionally, under Rule 504, issuers of stock are still subject to their state registration requirements. It is essential that when applying for a federal exemption under Rule 504 that business owners check and comply with their state laws. In New York, issuers of stock can apply for an exemption to registration with the Attorney General if the securities are to be sold in a limited offering to no more than forty people. Note carefully: the language of the New York Statute limits the number of offerings, so it is not enough that you issue stock to fewer than forty people; you can only offer the shares to that many. 

Finally, while awaiting approval from Attorney General, making offers is prohibited. New York entrepreneurs should abstain from making any offer, even to friends and family, until they have received official approval of the exemption from the Attorney General.


Step 4: Issuing the Securities (Stock)


Now that your corporation has been formed and formalized, and your securities exemption has been approved both federally and on a state level, your corporation is now free to sell the shares of stock to investors. Naturally, your internal, corporate documents must have been duly executed in a manner authorizing the type and quantity of stock you wish to sell, particularly your bylaws and your articles of incorporation. 

The two main types of stock are common and preferred. Common stock is what most people think of when they imagine stock: it is a security that represents ownership in a corporation that comes with certain rights, powers, and duties, including certain voting rights. Preferred stock gives the owner a priority when it comes to being paid and can also come with a higher dividend, but it does not typically come with voting rights and the return on investment is fixed, so there is no share in the overall sale price of the business. 

Typically for this first “seed” round, amateur entrepreneur wish to issue preferred, non-participating stock to their friends and family, with the option to convert them to common, participating shares. This offers the amateur investor a more secure investment in the short-term, and offers the entrepreneur’s friends and family a greater reward should the venture turn lucrative. In exchange, the entrepreneur is getting investment money she might not otherwise have received, particularly with low to no interest, and she can retain control over the operations of the business. The overall goal at this stage is to give friends and family back the percentage they put in, hopefully when the business has grown and everyone makes a profit.

The next article in this series will discussed more nuanced forms of investment that may take place at subsequent stages, when the business is up and running, proven to be a viable concept, and is seeking an additional capital injection. 


Conclusion


The time is truly ripe for amateur entrepreneurs to take advantage of the current climate and start their own businesses, but they must take steps to ensure that they are in compliance with all applicable federal and state laws, particularly those that govern the sale of securities. In particular, those looking to start and grow a business should not ask for seed investment money until they are properly setup and have received registration exemption approval from the federal and state governments. 

There are many, detailed steps to follow along the way, and while retaining an attorney is not a requirement, it is highly recommended that you have a legal expert guide you along the way. The information contained in this article is not intended to be legal advice and there are certain parts of the overall process discussed above that were not included, so this should not be used as a step-by-step guide either. Overall, Working with an attorney who not only knows what she is doing not only will make the process go faster, but it will give you the peace of mind that you are doing everything you are supposed to be doing.

May 2015 NEWSLETTER

Yogi Patel - Friday, May 01, 2015

Dear valued clients and supporters: This month's newsletter will focus on (1) recent developments in the law with regards to the use of LinkedIn by ex-employees and violations of a pre-existing non-compete or non-solicitation agreements and (2) legal considerations for start-up ventures that are raising money.

LinkedIn and Violation of Separation Agreements

It is not uncommon for employers to require an employee to enter into a separation agreement upon termination or resignation of their employment in exchange for a severance payout. The benefit to the employer in entering such an agreement often includes clauses restricting who that employee works for (competitor, etc) and who they can take with them to the new employer (co-workers, clients, etc.), among other benefits. And the reality now is that many employees maintain social media accounts such as LinkedIn that includes professional connections made through their employment, whether it is co-workers or clients/vendors of the employer. The question that has arisen in several jurisdictions is whether an employee who signs such an agreement and then announces that they are leaving the employer on LinkedIn has breached the non-solicitation and non-competition clauses. Courts have found both ways on this issue in different jurisdictions. And the analysis Courts appear to be engaging in when presented with this question is focused on a few factors. First, what was the exact content of the message by the employer on the social media site. Did it encourage defection or competition? Second, what policies did the employer maintain regarding the use or restriction of social media during the course of employment and did the separation agreement specifically make reference to the use of social media with regards to non-solicition and non-compete clauses? Ex-employees subject to such clauses are advised to tailor the message about their departure or future plans on social media sites with this in mind. Employers that have concerns about how their businesses might be impacted as a result of the use of social media by an ex-employee are advised to implement policies restriction the use of social media, while keeping in mind federal labor law protections protecting employees' ability to engage in concerted activity, should they impose such restrictions.

Start-up ventures, raising money and legal obligations

The current state of the capital markets appears to have set the stage for entrepreneurs to start their own businesses. But entrepreneurs are cautioned to take steps to ensure that they are in compliance with all applicable federal and state laws, particularly those that govern the sale of securities. For any transaction in which a business is accepting money as an investment, there are registration requirements and other restrictions imposed by both the Securities Exchange Commission (SEC) and state law. There are even actions that a business owner must take before even offering securities or other equity in exchange for capital, and a failure to comply with federal and state requirements could leave the uninformed entrepreneur inadvertently facing charges as serious as security fraud. Over the course of the next several months, we intend to post a series of articles on our website intended to provide the start-up entrepreneur with some general guidance on issues related to business formation, accepting investment capital at various stages of growth, and ultimately selling the company and distributing the profits, if that should be the desired outcome of the venture. Please see our series of articles here: I, II, and III .

APRIL 2015 NEWSLETTER

Yogi Patel - Wednesday, April 01, 2015

Dear valued clients and supporters.  This month's newsletter will focus on: (1) recent changes to the law in New York State that impacts every employer and all newly hired employees as of January 1, 2015; (2) recent U.S. Supreme Court ruling impacting an employers obligation to provide workplace accommodations to pregnant employees and (3) legal considerations when using the internet to engage in commerce.

Wage Theft Protection Act of 2010  ("WTPA")


Effective January 1, 2015, the WTPA requires all employers in New York State to provide all newly hired employees with a wage notice in English and, if applicable, the primary language of the employee as identified by the employee, within ten (10) day of hiring.  A civil lawsuit against an employer for failure to provide these wage notices may be brought by either the employee or the commissioner of the Department of Labor (on behalf of the employee), and could result in a judgment against the employer for up to $250 per workday (per employee) in which the violation occurs or continues, up to $5,000 (in addition to costs and reasonable attorney fees).  More information about the amended law, including what information needs to be included in the wage notice is available here.  

Workplace Accommodations for Pregnant Employees


The U.S. Supreme Court, in the case Young vs. United States Parcel Service was expected to determine whether and to what extent an employer is required to provide work place accommodations to pregnant employees. Both Federal, State and City law currently make it unlawful for an employer to terminate or treat an employee unequally simple because of the pregnancy.  But what the laws did not make clear is what type of accommodations must employers make for pregnant workers. The decision, which was issued on March 25, 2015, held that a plaintiff may be able to prove unlawful failure to accommodate a pregnancy-related condition through evidence that other non-pregnant employees were provided with the requested accommodation.  The decision lowers the burden for plaintiffs and raises the burden for employers to overcome. And employer policies that tend to negatively impact pregnant employees – particularly where there is evidence that the requested accommodations have been provided to non-pregnant employees – are likely to be scrutinized and may well be deemed to be unlawful.  We recommend employers to review their policies and practices with this ruling in mind, and to make whatever changes necessary to ensure appropriate accommodation of, and no adverse effect with respect to, pregnant employees.   Internet and Commerce There is no denying the impact of the Internet on commerce. Many businesses utilize websites, social media, and other web-based platforms to promote their products and services. In fact, an entire industry has emerged comprised of what are now commonly known as “e-commerce” based business – entities that rely solely on the Internet as their means of engaging in commerce. Various Federal and State laws govern businesses’ ability to advertise on the web. These restrictions depend in large part on the company’s location, where their customers live, and the industry in which they operate. Special consideration should be taken by businesses that actually engage in e-commerce (selling goods or services over the Internet), since their activities may involve more legal issues than a website that merely uses the web for advertising purposes. However, even websites that are only created for advertising purposes should be mindful of best business practices to protect themselves from liability.  An in-depth article exploring these issues is now available here


Internet and Commerce


There is no denying the impact of the Internet on commerce. Many businesses utilize websites, social media, and other web-based platforms to promote their products and services. In fact, an entire industry has emerged comprised of what are now commonly known as “e-commerce” based business – entities that rely solely on the Internet as their means of engaging in commerce. Various Federal and State laws govern businesses’ ability to advertise on the web. These restrictions depend in large part on the company’s location, where their customers live, and the industry in which they operate. Special consideration should be taken by businesses that actually engage in e-commerce (selling goods or services over the Internet), since their activities may involve more legal issues than a website that merely uses the web for advertising purposes. However, even websites that are only created for advertising purposes should be mindful of best business practices to protect themselves from liability.  An in-depth article exploring these issues is now available here.   



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