Since the Securities and Exchange Commission has recently taken an increasingly closer look at the activities of private equity and venture capital fund managers, it is more important than ever for fund managers to understand when conflicts of interest are likely to arise and how to manage them properly. The SEC has expressed concern about conflicts of interest inherent in the private equity business model and has brought several enforcement actions against private equity fund managers in the last couple of years that mostly focus on direct and indirect compensation to managers or advisers that were not properly disclosed to the fund’s investors. Since the SEC takes the position that fund managers and advisers owe a fiduciary duty of loyalty to act in the fund’s best interest, fund managers must keep a close eye on potential conflicts of interest and employ best practices like consulting advisory committees whenever possible conflicts arise. [Read more…]
Venture Capital Archives
Legal Considerations for Selling Your Emerging Growth Company Part 3: The Non-Disclosure Agreement
In the previous two posts in our series on legal considerations for selling an emerging growth company, we focused on providing an overview of the M&A process as well as negotiating an engagement letter with a financial adviser. In this third installment, we will take a look at drafting a Non-Disclosure Agreement (NDA) with a potential acquirer. What makes the NDA particularly significant for an emerging growth company entering into the acquisition process is that, unlike other aspects of the sales process such as due diligence or executing a letter of intent, the NDA should be drafted with a primary focus on the needs of the target company, and not the acquirer. Thus the burden lies more with you and your company in drafting an NDA that will protect your company’s intellectual property and strategies while at the same time providing a sufficient window into a company to your potential acquirer to entice them to move forward with the transaction. With those oftentimes competing interests in mind, we will take a look at the four central questions you will need to answer in drafting and finalizing a NDA.
Legal Considerations for Selling an Emerging Growth Company Part 2: Creating an Engagement Letter with a Financial Adviser
Last month, we began a seven-part series on “Legal Considerations for Selling an Emerging Growth Company,” and, in that post, we discussed six important steps in the merger and acquisitions process that emerging growth companies will need to prepare for, which are: (1) engaging a financial adviser; (2) entering into a non-disclosure agreement; (3) negotiating the term sheet or letter of intent; (4) due diligence; (5) drafting and negotiating definitive documents; and (6) closing. We will continue to dive deeper into each of these steps of the process, and this month we are focusing on the first step, which is negotiating an engagement letter with a financial adviser. [Read more…]
Legal Considerations for Selling an Emerging Growth Company Part 1: The M&A Process
Everyone knows that a primary goal for many, if not most, startups and tech companies is to eventually sell the company, even if the founders intend to remain with the company. It goes without saying that selling your company can result in an enormous payday and provide continued vitality for the company going forward. That said, it’s critical that owners/entrepreneurs comply with legal requirements and protect their legal interests throughout the sales process (also known as the “M&A process”) to maximize their chances for a positive outcome.
With that in mind, this month I’m beginning a series of blog posts on the legal considerations you’ll need to keep in mind when selling your business. We begin with taking a look at an overview of the process involved in a merger or acquisition (often referred to as an “M&A deal”). Below is a high-level look at six essential steps to successfully completing the M&A process, and in future posts, we will dive deeper into what each one means for you. [Read more…]
The Pros and Cons of Taking Venture Capital Money
In many ways, the dilemma of deciding whether to take venture capital money from an interested VC firm can be filed under “Good Problems to Have.” The majority of startups never get to this point, either failing outright, or, even if they are profitable, they simply never build the type of company profile that fills VC investors’ imaginations with visions of high returns. But for those businesses that, through a mix of hard work, innovation, and luck, have reached the point of attracting the attention of VC firms, the decision of whether to take their money is still a hugely important one, and one that comes with high risks and high rewards. Below, I’ll cover a few of the primary pros and cons of taking venture capital investment that you’ll want to have in mind as you work through this stage of your company’s life growth. [Read more…]