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Raising Capital: The Different Investment Stages

You’ve hatched an idea, formed a team and now you’re ready to raise private capital to jump start your new company. One of the keys to success is understanding the general process a startup will go through as it continues to grow and expand its operations. Below you’ll find an overview of the three stages… Read More

You’ve hatched an idea, formed a team and now you’re ready to raise private capital to jump start your new company. One of the keys to success is understanding the general process a startup will go through as it continues to grow and expand its operations. Below you’ll find an overview of the three stages we see most of our startups go through on their way to raising multiple rounds of capital.

Seed Stage

A seed investment in a startup is usually between $100,000 and $1m with the primary investors being friends and family, as well as angel investors. At this stage, the company has little more than a speculative business plan and therefore is primarily selling the founders past experience, vision and long-term plan to those within their network who believe in the talents of the team.

With little operating capital, startups are looking to keep the transaction as cost effective as possible by using instruments such as convertible notes, SAFE and KISS agreements. These are all instruments that will convert to equity at a later date but do not give the holder actual ownership in the company until they do. However, don’t be fooled into think this is not a sale of a “security”, it is, and startups must be compliant at both the state and federal level when closing out this type of transaction.

Early Stage

This is the stage in which the startup actually begins its operations and is looking to raise capital to expand and continue development of its product or service. This is often the startup’s first engagement with an institutional investor (e.g. venture capitalist), and the amount sought is between $1-3m.

At this juncture, a smart startup is looking for more than just cash. No doubt, the capital is needed to fund its operations, but a savvy startup is also looking to form a relationship with an institutional investor to grant access to experts in their field who can advise on financial, strategic and operational issues, and can help lead a growth stage round down the line.

For early stage financing a startup will often sell “preferred stock”, and the investors who invested in the seed stage will convert their convertible instrument into equity during this round.  This round will often cost two to four times as much in legal and accounting as the seed stage but is hopefully offset by the much larger raise.

Growth Stage

The purpose of this round of financing is to expand the product or service to new markets, develop a new line, ramp up the team to scale, or even consider acquiring another startup/small business. While often turning a profit, or trending in that direction, the startup is often incapable of borrowing the funds it needs from a bank as they continue to look for a capital raise through another private placement round of financing.

Like the early stage, the investors tend to be large institutional investors, and the offer is for preferred Series B stock. However, unlike the early stage, the growth stage is often complicated by more complex financials and a greater number of shareholders and investors to consider. Additionally, with a longer operating history, the growth stage company is often viewed as less risky by investors.

Unlike seed or early stage startups, a growth stage company will go through an extensive due diligence process as the new investors investigate and kick the tires on the company. A lawyer familiar with the company who assisted with the first two rounds can typically keep the costs of the growth stage in the same ball park as the early stage round, however, because the overall structure has become more complicated it’s not abnormal for the round to exceed what it costs to complete the early stage round.

Having a sense of the process can aid in your discussions with prospective strategic partners, and investors. If you’re considering raising capital for your venture (big or small) please reach out to carry the conversation forward. You can contact us at info@bendlawoffice.com, or at (415) 633-6841.

Disclaimer: This article discusses general legal issues and developments. Such materials are for informational purposes only and may not reflect the most current law in your jurisdiction. These informational materials are not intended, and should not be taken, as legal or tax advice on any particular set of facts or circumstances. No reader should act or refrain from acting on the basis of any information presented herein without seeking the advice of counsel in the relevant jurisdiction.  Bend Law Group, PC expressly disclaims all liability in respect of any actions taken or not taken based on any contents of this article.

 

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Brewing Likelihood of Confusion: A Look At Coexistence Agreements

By: Erica Paige Fang When two trademark owners have developed rights to identical or similar marks, they might enter into a coexistence agreement in order to resolve a potential trademark dispute.  The agreement must clearly state in detail the rights of the respective parties and how confusion in the marketplace will be avoided.  Typically, the… Read More

By: Erica Paige Fang

When two trademark owners have developed rights to identical or similar marks, they might enter into a coexistence agreement in order to resolve a potential trademark dispute.  The agreement must clearly state in detail the rights of the respective parties and how confusion in the marketplace will be avoided.  Typically, the goods and services are unrelated, are sold in different geographic areas, or utilize different trade channels.

A consent agreement is a type of coexistence agreement that may be entered into the record of a trademark prosecution in order to obtain registration.  The consent agreement usually limits the rights of the party seeking consent, but will not thoroughly address long-term coexistence.   A consent agreement is a declaration that there will be no confusion.  Courts will consider this evidence there is no likelihood of confusion because the parties entering into the agreement are those who would most greatly be affected by potential consumer confusion.  It is important to know a court can reject a coexistence agreement if it fails to provide sufficient detail regarding avoidance of confusion and if they believe consumer confusion is unavoidable.

In re Bay State Brewing Company, Inc. (TTAB 2016) the Board determined the consent agreement was not sufficient to avoid confusion and affirmed the 2(d) refusal on likelihood of confusion.  As discussed above, a consent agreement usually carries great weight in the likelihood of confusion analysis.  The consent agreement relates to the market interface between the parties, and is number 10 of the du Pont factors. Here, Bay State Brewing Company (“Applicant”) filed to register TIME TRAVELER BLONDE (BLONDE disclaimed) as a standard word mark for beer, but was refused based on prior registered standard word mark TIME TRAVELER for beer, ale and lager.   The consent agreement limited the applicant to the geographic area of New York State and the New England area, whereas there were no geographic limitations on the Registrant.  The board found the restriction on use only limiting one party effectively allows for simultaneous use by both parties in the same regions, here New York State and the New England area.   Ultimately, the Board determined the restrictions set forth in the parties’ consent agreement would not eliminate confusion in the marketplace.  Further, the Board held the mark TIME TRAVELER for beer, ale and lager is an arbitrary mark entitled to a broad scope of protection.

In re Four Seasons Hotels, Ltd., 987 F2.d (Fed. Cir. 1993), the Federal Circuit found no likelihood of confusion between FOUR SEASONS BILTMORE and THE BILTMORE LOS ANGELES, stating the parties’ coexistence agreement passed the scrutiny because the marks were sufficiently different, the services were not identical and the marks had coexisted in the marketplace for years without confusion.  The Board evaluating Bay State Brewing Company distinguished from this case because the goods, beer, were the identical, and the marks were virtually identical minus the disclaimed and descriptive term for beer, BLONDE.

Parties should weigh future conflicts when considering a coexistence agreement.  Some important considerations include:  1) term of the agreement; 2) rights to license or assign the mark; and 3) potential expansion, particularly into new geographic areas or into new goods and services.  Further, a party should consider whether their mark is arbitrary, or fanciful in relating to the goods or services, allowing for a broader scope of protection.   Allowing other coexistence could dilute the mark and weaken the strength of protection.  However, in the right circumstances, a clear coexistence agreement detailing how the parties will avoid likelihood of confusion in the marketplace can help avoid any brewing of confusion, as was the case for the parties in the Four Seasons Hotel.

Disclaimer: This article discusses general legal issues and developments. Such materials are for informational purposes only and may not reflect the most current law in your jurisdiction. These informational materials are not intended, and should not be taken, as legal advice on any particular set of facts or circumstances. No reader should act or refrain from acting on the basis of any information presented herein without seeking the advice of counsel in the relevant jurisdiction.  Bend Law Group, PC expressly disclaims all liability in respect of any actions taken or not taken based on any contents of this article.

 

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The Top Mistakes Of Selling A Business And How To Avoid Them

This article first appeared on Forbes. If done correctly, selling your business, just like selling your home, can increase your net worth. But if done incorrectly, you can leave a significant amount of money on the table. In my experience assisting with the buying and selling of dozens of businesses, I have discovered that the same pitfalls… Read More

This article first appeared on Forbes.

If done correctly, selling your business, just like selling your home, can increase your net worth. But if done incorrectly, you can leave a significant amount of money on the table.

In my experience assisting with the buying and selling of dozens of businesses, I have discovered that the same pitfalls arise time after time. But by understanding what they are and how to avoid them, you can be satisfied with the sale of your business — not just when you hand the keys over, but for years to come.

Below are my top three tips for avoiding the most common mistakes that befall sellers:

1. Carefully craft the non-compete provision.

If there is a non-compete provision, be sure to include a safe harbor for any business ideas you might want to pursue after the sale of your business. The safe harbor should not only create an exception for any similar businesses you would like to work on, but also for any businesses you would like to invest in.

Additionally, the non-compete should include the specific timeframe in which you are prohibited from operating a similar business, as well as the geographic scope. For instance, when selling a business, cap the non-compete at four years within a 40-mile radius of the location.

 

2. Get as much of the purchase price at closing as possible.

Never was the saying “one in the hand is worth two in the bush” more true than in the payment of the purchase price for the sale of a business. A buyer is not likely to run the business as well as you have and they might have trouble making payments that are stretched over time.

In addition, by getting as much of the purchase price as possible at closing, you will have the opportunity to invest that capital or enjoy it yourself.

If payment is stretched out over time, be sure that it is secured by the assets being purchased, and ideally by other collateral to help make sure you will get the full sale price.

3. Hold the buyer personally accountable.

Ideally, when the buyer signs the purchase agreement, you want them to sign it both on behalf of their company and as an individual. That’s because if the buyer only signed on behalf of their company and that company is dissolved, you have no way to hold them personally accountable for the agreement and you could lose out.

However, as long as the buyer has signed the agreement as an individual, you can still hold them personally accountable if their legal entity (the company) is dissolved. This ensures that the agreement is fulfilled independently of the fate of the company.

Although the terms and pitfalls of selling a business vary from deal to deal, one consistent element is that navigating the sale can often be tricky. However, if you follow the tips above and work with an attorney and a CPA, you can help ensure that you will get as much money as possible for the sale of the business you have invested your hard work, time and capital in.

The information provided here is not legal advice and does not purport to be a substitute for advice of counsel on any specific matter. For legal advice, you should consult with an attorney concerning your specific situation.

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East Bay Ordinances Place Restrictions on Service Charges for Restaurants

As Bay Area cities adopt revised minimum wage ordinances, restaurant owners are working to come up with innovative ways to both meet these increasing payroll requirements and, in many cases, provide for more equitable compensation between Back Of House (cooks and dishwashers) and Front Of House (servers) employees. While many owners are considering adding a… Read More

As Bay Area cities adopt revised minimum wage ordinances, restaurant owners are working to come up with innovative ways to both meet these increasing payroll requirements and, in many cases, provide for more equitable compensation between Back Of House (cooks and dishwashers) and Front Of House (servers) employees. While many owners are considering adding a service charge to the customer’s bill that they can then distribute among all of the workers, rather than the traditional model of customers leaving tips that are only or primarily given to servers, provisions in the minimum wage ordinances for some cities place restrictions on this option. Berkeley and Oakland are two of the largest cities to pass ordinances restricting employers’ use of service charges.

Minimum Wage Ordinances

With the passage of Measure FF, Oakland set the city’s minimum wage at $12.25 per hour, effective March 2, 2015. This rate increases on January 1 of each year by an amount corresponding to the prior year’s increase, if any, in the Consumer Price Index (“CPI”) for urban wage earners and clerical workers for the San Francisco-Oakland-San Jose metropolitan statistical area. The current Oakland minimum wage is updated here (as of January 1, 2017, Oakland’s minimum wage is $12.86 per hour).

Similarly, on August 16, 2016, the Berkeley City Council adopted a revised Minimum Wage Ordinance, No. 7,505-N.S., B.M.C. Chapter 13.99, which took effect on October 1, 2016. This ordinance raised the minimum wage in Berkeley to $12.53 effective October 1, 2016; $13.75 effective October 1, 2017; and $15.00 effective October 1, 2018. After 2018, the minimum wage will increase annually based on the annual increase in the CPI. Employers should note that they are required to post a notice of the minimum wage rates where employees can easily read it, and sample notices are available here for Berkeley and here for Oakland.

Service Charge Provisions

An important change in both the Oakland and Berkeley minimum wage ordinances was the introduction of sections regarding “Hospitality Service Charges” (Section 13.99.050 in Berkeley’s ordinance and Section 5.92.040 in Oakland’s ordinance). These provisions regulate service charges, which are defined as separately-designated amounts collected from customers that are for service by employees, or are described in such a way that customers might reasonably believe that the amounts are for those services or in lieu of tips.

Berkeley and Oakland use different language to describe how service charges may be used, but the end result is the same: the money must be paid to the employees providing the service for which there is a charge applied, and the service charge cannot be retained by the employer. Oakland’s ordinance requires service charges to be “paid over in their entirety to the Hospitality Worker(s) performing the services for the customers,” and Berkeley’s ordinance states that services charges “shall be used by the Employer to directly benefit the Employees.”

Prior to the passage of these ordinances, there was no language related to service charges in the Berkeley or Oakland ordinances (or in any local laws except a minor law related to hotel workers in the LA area), so restaurants collecting service charges were free to collect and distribute this money in any way they chose.

Implementation

Both Oakland’s and Berkeley’s ordinances require restaurants to document how and why service charges are distributed to employees, and through such documentation these charges may be used to compensate both FOH and BOH employees. Specifically, Berkeley’s ordinance requires the employer to “define the chain of service and associated job duties entitled to a portion of the distributed service charges and notify the employees of the distribution formula as well as provide in writing to each employee its plan of distribution of service charges to employees.”

Thus, a restaurant could define “service” as starting with the host who seats the guest, then to the server who takes the order, then the bartender who makes the drinks, the cooks who cook the food, the runners who run the food, the bussers who clear the plates, and the dishwasher who makes sure that the dishes are clean. Berkeley’s ordinance does not exclude supervisors from being able to receive a portion of the service charge, but Oakland’s ordinance does not permit service charges to be distributed to supervisors for work they do in supervisory positions.

While neither ordinance gives any further information about implementing this requirement, the Oakland City Attorney provided the following guidance regarding what should be included in the written policy that is distributed to employees, which complies with the Oakland measure and also appears to fulfill the requirements of the Berkeley ordinance:

  1. A complete definition of “service,” including a reasonable and thorough description of why and for what the employer is charging the service charge;
  2. Each employee position that is included in the chain of service;
  3. The percentage that each employee shall receive from the service charge, which shall be equitably based on their contribution in the chain of service;
  4. Written notice that supervisors shall not receive a portion of the service charge unless they perform nonsupervisory work in the chain of service (Oakland only);
  5. A statement that the service charges will be paid to employees no later than the next payroll following the work or collection of the service charge from the customer, whichever is later (Oakland only); and
  6. Written notice, including the identity of an individual or employment position, to whom employees may direct questions or complaints regarding the payment (or nonpayment) of services charges.

Additionally, employers should provide adequate, written notice to its customers of, at a minimum, the amount of the service charge, what the service charge is for, and who shares in the service charge. At least 15 days’ written notice should be given to employees if the policy changes.

Conclusion

With the passage of these ordinances, restaurant owners may use service charges to collect a specific amount for service on each guest check and then distribute these amounts among FOH and BOH employees, but such charges will not help the owners meet minimum wages requirements. Under state law (and different than many states), neither tips or service charges can count towards the employer’s minimum wage obligations. Therefore, owners may need to find other creative solutions to meet rising minimum wage obligations at a time when food, rent, and other costs are also rising.

 

Disclaimer: This article discusses general legal issues and developments. Such materials are for informational purposes only and may not reflect the most current law in your jurisdiction. These informational materials are not intended, and should not be taken, as legal or tax advice on any particular set of facts or circumstances. No reader should act or refrain from acting on the basis of any information presented herein without seeking the advice of counsel in the relevant jurisdiction.  Bend Law Group, PC expressly disclaims all liability in respect of any actions taken or not taken based on any contents of this article.

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Shareholder Protections Within a Small Business

All shareholders, no matter the size or jurisdiction, are granted some limited rights when investing in a company. However, shareholders in a small business are wise to negotiate and draft contractual protections in addition to these limited rights. Shareholders of a publicly-traded company have the ability to sell their shares if they are unhappy with… Read More

All shareholders, no matter the size or jurisdiction, are granted some limited rights when investing in a company. However, shareholders in a small business are wise to negotiate and draft contractual protections in addition to these limited rights. Shareholders of a publicly-traded company have the ability to sell their shares if they are unhappy with the trajectory or management of the company, but restrictions on the shares or the lack of a public market makes this type of exit potentially impossible in a smaller company. In lieu of such freedom, it is important for shareholders in privately-held companies to negotiate additional protections for three main reasons:

(1) Management. Shareholders in privately-held companies often have high expectations for their involvement in management decisions. A shareholder agreement should provide increased transparency into how the company will be managed. This includes board representation by the shareholders and actions the board cannot take without unanimous, or super-majority, approval of the shareholders. Actions such as increasing an officer’s salary, the percentage of profits to set aside as retained earnings, or the issuance of additional securities to a third party are examples of actions that could be contingent on shareholder approval.

(2) Liquidity. Shares in private companies are unregistered securities, which means the shareholders do not have an accessible market to sell their interest in the company if they become dissatisfied with how things are progressing. Thus, shareholder agreements can create an opportunity for liquidity. Certain events can trigger a buyout, such as retirement or termination of employment. Prior to such an event, the company and shareholders can agree upon a calculation of the price per share in order to lessen the opportunity for a downstream argument when it comes time for a purchase or transfer of equity to occur.

(3) Transfer Restrictions. Transfer restrictions can protect the core players and allow everyone to weigh in on who may come on board and join the team. Shareholder agreements will typically include restrictions on the ability of a shareholder to sell or otherwise transfer his/her shares without the consent of the other parties. They can also provide the other shareholders an opportunity to purchase the shares before they are sold or transferred to a third party. This right of first refusal helps to ensure that the remaining shareholders are not left working with a new party with whom they otherwise would not have chosen to do business.

The lack of liquidity and the frequent combination of the roles of shareholder and manager means that wise shareholders will put together a shareholder agreement at the beginning stages of their business venture. A well-drafted agreement can help guide the management and allow them to focus on the changes that will take place over the lifecycle of a business. If you’re interested in discussing your current shareholder agreement or drafting a shareholder agreement you can contact us at info@bendlawoffice.com, or at 415 633 6841.

Disclaimer: This article discusses general legal issues and developments. Such materials are for informational purposes only and may not reflect the most current law in your jurisdiction. These informational materials are not intended, and should not be taken, as legal advice on any particular set of facts or circumstances. No reader should act or refrain from acting on the basis of any information presented herein without seeking the advice of counsel in the relevant jurisdiction.  Bend Law Group, PC expressly disclaims all liability in respect of any actions taken or not taken based on any contents of this article.

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Common pitfalls to avoid when raising money for your business

Nearly all startups and small businesses must at some point consider raising capital. To ensure you’re best suited to take full advantage of a potential opportunity, work hard to avoid these common pitfalls we frequently see. (1) Ghost Ownership A downstream claim to ownership by a party who was once considered a founder or early… Read More

Nearly all startups and small businesses must at some point consider raising capital. To ensure you’re best suited to take full advantage of a potential opportunity, work hard to avoid these common pitfalls we frequently see.

(1) Ghost Ownership

A downstream claim to ownership by a party who was once considered a founder or early stage contributor can create lots of problems. Startups and small businesses frequently start with a couple of friends with a shared business idea or vision. As the idea gets rolling, one or two of the initial founders/contributors may fail to deliver on his/her end of the bargain, and the party is then voluntarily or involuntarily removed from the company.

Because so many early stage companies forgo the assistance of legal counsel, as time marches on it becomes unclear how much, if any, this original founder/contributor owns if the removal process is not managed and documented clearly.

It’s much easier to negotiate with a party who fits this description before a big financing round begins to materialize, the company is rushed, and the early stage contributor now has much more leverage. Thus, working with counsel to sort out these issues early on can go a long way to ensuring a deal doesn’t get blown up.

(2) Organizational Issues

We’ve seen it happen all too frequently. A company has a great idea, but the structure of the company is less than ideal for investors. Choices made at an early stage, which may have made lots of sense at the beginning – such as forming an LLC to create only one layer of tax – can inhibit a startup’s ability to attract the right suitor for its current investment needs.

Once a company is looking to market its offering outside of friends and family, it often finds that investors are hesitant to invest in a “pass through entity” such as an LLC or S-Corp. Instead, investors typically want to invest in a C-Corp structure (and often a Delaware C-Corp, as Delaware is considered “business-friendly,” is a jurisdiction that the investors’ counsel are familiar with, and has well-known, established legal precedent that investors can rely on).

(3) Valuation

Valuation is far from an exact science, but the final valuation determination can have dramatic consequences on both the attractiveness of a fundraising round, and the downstream ownership issues of the founders. Valuing the company too low runs the risk of devaluing the current investors’ equity and overly dilutes their ownership; however, valuing the company too high can make it hard to attract investment and could damage the company’s reputation if the company does not understand how to properly project value.

As your general counsel, we can help manage these considerations to ensure they are taken care of before they become issues that might hold up a prospective deal. Investing in the future with sound legal counsel can seem tough when every dollar matters for an early stage company, but for those with lofty ambitions to raise capital, this investment can pay dividends in the not so distant future. If interested, you can contact us at info@bendlawoffice.com or at 415 633 6841.

Disclaimer: This article discusses general legal issues and developments. Such materials are for informational purposes only and may not reflect the most current law in your jurisdiction. These informational materials are not intended, and should not be taken, as legal advice on any particular set of facts or circumstances. No reader should act or refrain from acting on the basis of any information presented herein without seeking the advice of counsel in the relevant jurisdiction.  Bend Law Group, PC expressly disclaims all liability in respect of any actions taken or not taken based on any contents of this article.

 

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California State Trademark and Service Mark Protection Could Finally Be Here!

Guest Author: Erica Paige Fang The current California Model State Trademark Law provides for the registration of trademarks and service marks with the California Secretary of State and requires the classification of goods and services conform to the classifications adopted by the United States Patent and Trademark Office (USPTO).  This has created a roadblock for… Read More

Guest Author: Erica Paige Fang

The current California Model State Trademark Law provides for the registration of trademarks and service marks with the California Secretary of State and requires the classification of goods and services conform to the classifications adopted by the United States Patent and Trademark Office (USPTO).  This has created a roadblock for business owners in the cannabis industry because the USPTO will not register a mark where the goods and services are related to illegal drugs, and to date, cannabis is still classified as a Schedule 1 substance by the Drug Enforcement Agency and the Food and Drug Administration.

Section 2(a) of the Lanham Act bars registration of trademarks that consist of or comprise immoral, deceptive, or scandalous matter.  15 U.S.C. § 1052(a).  The Examiners at the USPTO have rejected as scandalous and immoral several trademark applications related to illegal drugs, citing the adverse health effects of drug use and the classification as a Schedule 1 substance.  California has refused state registration for cannabis related trademarks and service marks on the same basis.  California Assembly Bill 64 looks to change this and allow a certificate of registration that is issued on or after January 1, 2018 for marks related to medical and nonmedical cannabis goods and services that are lawfully in commerce under state law in the State of California.  The Bill proposes to add Section 14235.5 to the California Business and Professions Code, listing the following classifications that may be used for marks related to medical and nonmedical cannabis goods and services:  (1) 500 for goods that are medical cannabis, medical cannabis products, nonmedical cannabis, or nonmedical cannabis products; (2) 501 for services related to medical cannabis, medical cannabis products, nonmedical cannabis, or nonmedical cannabis products.

Up until this point cannabis businesses have been at a disadvantage because they cannot protect their brand.  This downfall has lead to trouble securing investors and growing the businesses.  The other recreational states, Washington and Oregon, have passed similar legislation to offer trademark protection to cannabis businesses in their respective states.  If AB-64 passes, cannabis businesses will want to have acceptable specimen of use ready and a way to date it back to the first use in commerce in order to make registration as smooth as possible.

AB-64 also looks to restrict the advertising of medical and non-medical cannabis and cannabis products.  Proposition 64 that was passed in November 2016 included some advertising restrictions, prohibiting the placement of billboards advertising cannabis that are located on an interstate highway or state highway that crosses the boarder of any other state.  AB-64 would expand this restriction to prohibit advertising on all interstate and state highways.  So while AB-64 may allow the State to grant trademark protection, where companies use that mark to advertise will have to comply with the state’s restrictions.

Disclaimer: This article discusses general legal issues and developments. Such materials are for informational purposes only and may not reflect the most current law in your jurisdiction. These informational materials are not intended, and should not be taken, as legal advice on any particular set of facts or circumstances. No reader should act or refrain from acting on the basis of any information presented herein without seeking the advice of counsel in the relevant jurisdiction.  Bend Law Group, PC expressly disclaims all liability in respect of any actions taken or not taken based on any contents of this article.

 

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