This document provides an overview and summary of legal, business, and financing strategies for startups in a down economy. It discusses planning for downturns, available federal aid programs like PPP loans and tax credits, debt restructuring options, force majeure clauses, business interruption insurance, fraudulent transfer laws, and bankruptcy considerations. The presentation aims to help startups navigate legal and business challenges that may arise during an economic downturn.
Forgiveness for payroll, rent, mtge interest and utilities but 75% must be used for payroll
75% equals 8 weeks of payroll (8 weeks/ 2.5 times monthly payroll)
You have until June 30, 2020 to restore your full-time employment and salary levels for any changes made between February 15, 2020 and April 26, 2020.
"Small Business" as defined by
1) Number of Employees
Example: NAICS Code 423430 Computer and Computer Peripheral Equipment and Software Merchant Wholesalers can have up to (250)
OR
2) Revenue
NAICS Code 511210 - Software Publisher can have up to $41.5 million in revenue
Size will be determined by chart provided by SBA
The repayment term will be determined by your ability to repay the loan.
Takes approximately 3 weeks to process the application.
80% limitation relief on for 2020
You can borrow up to $200,000 without a personal guarantee.
First-year tax returns are not required and approval can be based on credit score.
You do not have to prove you could not get credit elsewhere.
Loans of $25,000 or less require no collateral. For loans above $25,000, general security interest in business assets can be used.
You must allow the SBA to review your business tax records.5
"Small Business" as defined by
1) Number of Employees
Example: NAICS Code 423430 Computer and Computer Peripheral Equipment and Software Merchant Wholesalers can have up to (250)
OR
2) Revenue
NAICS Code 511210 - Software Publisher can have up to $41.5 million in revenue
Size will be determined by chart provided by SBA
The repayment term will be determined by your ability to repay the loan.
Takes approximately 3 weeks to process the application.
California Statewide CDC – Working capital loans up to $250k are available for 5 to 10 years at prime + 6.25 – 9.25%. SBA loan fees apply.
CDC Small Business Finance – Loans of up to $500,000 at between 7.25 and 14.5% are available for up to 10 years. Fees are not required until the loan is approved. Assistance is available in English and Spanish. Southeast Asian Community Center –
Microloans are available for up to $50,000 for up to 4 years. Interest rates are competitive and only notary fees are required. Staff speak English, Cantonese, Mandarin, Vietnamese, and Tagalog.
Qualifying employers must fall into one of two categories:
1. The employer’s business is fully or partially suspended by government order due to COVID-19 during the calendar quarter.
2. The employer’s gross receipts are below 50% of the comparable quarter in 2019. Once the employer’s gross receipts go above 80% of a comparable quarter in 2019, they no longer qualify after the end of that quarter.
These measures are calculated each calendar quarter. The amount of the credit is 50% of qualifying wages paid up to $10,000 in total. Wages paid after March 12, 2020, and before Jan. 1, 2021, are eligible for the credit
Impact of other credit and relief provisions
An eligible employer's ability to claim the Employee Retention Credit is impacted by other credit and relief provisions as follows:
If an employer receives a Small Business Interruption Loan under the Paycheck Protection Program, authorized under the CARES Act, then the employer is not eligible for the Employee Retention Credit.
Wages for this credit do not include wages for which the employer received a tax credit for paid sick and family leave under the Families First Coronavirus Response Act.
Wages counted for this credit can't be counted for the credit for paid family and medical leave under section 45S of the Internal Revenue Code.
Employees are not counted for this credit if the employer is allowed a Work Opportunity Tax Credit under section 51 of the Internal Revenue Code for the employee.
VC cannot bail out companies: end of life, no dry powder, cross fund investments
Down Rounds: pre-emptive rights, shop to multiple investors, Rights Offering, D&O, employees
Forbearance beyond two years
CARES Act PPP forgiveness
(his or her debts exceeded his or her assets) at the time of the transfer or became insolvent because of it
Tiger King lawsuits
The crime of fraudulent conveyance is a misdemeanor, punishable by a $1,000 fine or up to one year in jail or both.
could include a person who merely signed a Form 941, Employer's Quarterly Federal Tax Return
EDD much more agressive
Misclassification issues
216 - the company have the ability to pay before liability attaches to individual officers, that same qualification is not present in § 215. While we have not seen the Labor Commissioner proceed under § 215 where the company did not have the ability to pay, it is possible that an aggressive Labor Commissioner could seek to do so.
§ 1343. Fraud by wire, radio, or television
Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined under this title or imprisoned not more than 20 years, or both. If the violation occurs in relation to, or involving any benefit authorized, transported, transmitted, transferred, disbursed, or paid in connection with, a presidentially declared major disaster or emergency (as those terms are defined in section 102 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5122)), or affects a financial institution, such person shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both.
§ 1344. Bank fraud.
Whoever knowingly executes, or attempts to execute, a scheme or artifice--
(1) to defraud a financial institution; or
(2) to obtain any of the moneys, funds, credits, assets, securities or other property owned by, or under the custody or control of, a financial institution, by means of false or fraudulent pretenses, representations, or promises;
shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both.
CA Alter Ego: 1. Corp and Sh have unity of interest in that they have no real separate existence AND avoid an inequitable result
Fact based: one shareholder, sh control, same office, commingling, reps to public that corp funds are sh funds, adequate corp records, formalities, shared management or employees, inadequate cap, mere shell,
Reverse veil piercing – easier for LLCs because creditor can only get charging order
A director's duty of loyalty requires the director to act to further the interests of the corporation and stockholders as a whole and in good faith. The duty of care requires the director to act on
directors owe a duty to act in the creditors' interests at the moment a corporation reaches insolvency. The change in the focus of directors duties occurs because directors may take extreme risks in an attempt to improve stockholders' position to the detriment of the corporation's creditors.an informed, careful basis, taking into account reasonably available information and alternatives.
The change in the focus of directors duties occurs because directors may take extreme risks in an attempt to improve stockholders' position to the detriment of the corporation's creditors.
Enough stock for founders
Pay to Play: eve of financing; future rounds, limit to down rounds, carveouts, convert to cs for prefr overhang
Rule 701 sets forth mathematical limitations you must follow when issuing shares under the rule. If you want to reprice your options, you have to be aware of the fact that C&DI 271.10 requires a company that is repricing their options to count them as new grants/sales under Rule 701 as of the date of the repricing. https://www.sec.gov/divisions/corpfin/guidance/securitiesactrules-interps.htm additional disclosure called for when its issuance level exceeds $5 million
VC backed companies may not have independent boards as directors are under their thumb
The Worker Adjustment and Retraining Notification Act of 1988 (the "WARN Act") is a US labor law which protects employees, their families, and communities by requiring most employers with 100 or more employees to provide 60 calendar-day advance notification of plant closings and mass layoffs of employees, as defined in
The California WARN Act modeled after the federal WARN Act. But the California WARN Act extends protection to a wider range of laid-off employees. Therefore, most employees whose WARN Act rights were violated after a layoff or plant closure will want to sue their employer under the California law.
Shareholders' post-
Shareholders' post-dissolution liability is limited to the total amount of assets distributed to the shareholder or their pro rata share of the claim – whichever is less dissolution liability is limited to the total amount of assets distributed to the shareholder or their pro rata share of the claim – whichever is less.