We have developed the following summary to discuss generally the legal tasks we frequently perform for our clients.
The first task necessary for any company is the formation of a corporation or LLC. First, we can help you decide which sort of entity is best for the company you wish to form. Then, we file the Certificate of Incorporation (for a corporation) or Certificate of Formation/Articles of Organization (for a LLC) through a third party filing agency. If your entity will operate in more than one state, we will file a certificate for authority to do business in that State, if required by its laws. For example, for a Delaware entity with operations in New York, we would file for a Certificate of Authority to do business in New York. This may require additional time and state fees, depending upon the states in which you seek authorization to do business.
In addition to a formation document, an entity typically has agreements in place that, among other things, establish its corporate governance structure and the rights of its equity holders. For a corporation, we would draft a Shareholder Agreement and Bylaws. For an LLC, we would draft an Operating Agreement, which serves the same purposes in a single document. These documents form the central organizing principals of your company and are often your most important, frequently referenced documents. We have a great deal of experience drafting, negotiating and amending these agreements for early, middle and later stage companies. For companies with many participants, or a more complicated capital structure, the drafting process can become time consuming and costly, particularly if there are ongoing negotiations of basic terms. For a simply organized company with only a few participants, these detailed documents can be completed in less time.
The financing of a company varies greatly depending on its particular investment strategy and company structure. Financing typically takes one of two basic forms – equity or debt. When an investor is investing cash directly into a company in exchange for equity, we prepare a subscription agreement, as the investor is subscribing for units or shares in the company. A recent trend for investors in start-ups has been to provide investment funds in the form of convertible loans. In this case, the investor actually loans money to the company, and thus becomes a creditor, with superior rights for collection. This debt subsequently converts to equity on terms upon which the parties agree, typically upon the next significant equity raise, at a rate that represents a discount to the equity raise price. To document these transactions we prepare a convertible loan agreement and promissory note, often beginning the process with a term sheet to establish agreement on basic terms.
As a general rule, the rules and regulations of the Securities Exchange Commission (the “SEC”) require companies seeking investment monies to register their securities offerings with the SEC. However, in recognition of the fact that many growth stage companies do not have the resources or means to engage in SEC registration, the SEC rules and regulations also include exceptions to SEC registration requirements, as long as certain conditions are met. Regulation D of the Securities Act of 1933 (“Reg D”) provides an exemption from registration for the limited offer and sale of securities that many start up companies rely on for their financings. In general terms, to meet the requirements of Regulation D, an offer must be limited in scope and the investors must meet certain criteria that evidence a certain level of sophistication in financial and business matters such that they are capable of independently evaluating the merits and risks of the investment. In addition to the SEC federal securities laws, some states also have their own regulations governing the offer and sale of securities, called “Blue Sky laws.” MasurLaw provides legal advice on all aspects of your securities offerings, including SEC and applicable Blue Sky compliance.
Employment and Independent Contractor Agreements
Once your company is operational, it is desirable to have employment agreements with key personnel as well as independent contractor agreements for freelance workers. These agreements help to keep the company’s relationship with each person clear, manage tax implications and expectations and protect company assets and intellectual property. For companies that create intellectual property, these agreements can become important during the due diligence process precedent to the company’s financing or sale. As companies typically have more than one key employee and/or independent contractor, we will work with you to draft form agreements that can be modified depending on the specific situation. Having form agreements in place is a cost-effective way to manage employment relationships.
Stock Option Plans
To the extent that your company wishes to provide stock to its employees, MasurLaw can advise you on an appropriate approach for your particular company and draft a stock option plan and grant agreements that meet your specific goals with regard to these employee incentives.
When a company uses a name and/or logo to sell products or services, it is advisable to submit a service or trademark application to protect these valuable assets from use by other companies. MasurLaw regularly files and prosecutes trademark applications through the United States Patent and Trademarks Office and oversees the registration process on behalf of our clients. If you are interested in these services, please ask us for a copy of our Trademark Application Process Memorandum, which explains this process in detail.
A successfully registered patent provides the patent holder with right to exclude others from making, using, selling, offering for sale, or importing an invention for the term of the patent, which is usually 20 years from the filing date. If your company develops an invention that might be patentable, it is advisable to search the United States Patent Office’s database to determine if an application has been filed or a patent has been granted for an identical or similar invention. The patent application is extensive, and can take several years to complete. We can discuss the patent process with you, help you decide whether it is worth pursuing a patent application for an invention, and help you to engage patent counsel well qualified to pursue the patent on your behalf.
Other Intellectual Property
As many of our clients are establishing new businesses based on unique ideas, some of our most creative and groundbreaking work has been helping our clients structure their business deals and draft the agreements they use to sell their products, or to obtain needed components, licenses or intellectual property. These are the agreements that make revenue for these companies. MasurLaw has extensive experience drafting a very wide variety of content and other licensing agreements, copyright registrations, intellectual property assignments, technology transfer documents, and product and service sales agreements across a range of diverse industries.
We are known for having pioneered a significant number of “first of their kind” agreements in internet commerce, digital distribution, mobile content and technology licensing for companies ranging from the most early-stage to the largest multinationals, in a broad cross-section of industries. The skills we have developed in the area of intellectual property are one of the primary reasons we have become well known in the digital media business and in the venture community generally.
Information and intellectual property that cannot be protected using copyrights, patents or trademarks can be protected by contract using confidentiality and nondisclosure agreements (often known as NDA’s). We have seen the limits of trade secret law tested, and have considerable experience drafting nondisclosure agreements to protect confidentiality in a wide variety of interactions involving sensitive information, including protecting formulas, practices, processes, designs, instruments, patterns, or compilations of information. For companies seeking outside investment funds and/or seeking to do business with third parties, having a proprietary form of confidentiality agreement increases the efficiency of meetings with others without risking the unauthorized disclosure of valuable and confidential business information and intellectual property. Having similar protections for the people working inside your company who have daily access to your most private information can also prove to be invaluable.
General Counsel Services
Once a company has been set up and is operational, many day-to-day issues will arise in the regular course of business. These concerns can include employment issues, financing, business negotiations, mergers and acquisitions, marketing, sales, and business disputes. Whether a client is a start up company with limited internal resources, or an established company needing help with overflow legal work, MasurLaw can provide the appropriate legal support. We regularly draft privacy policies and terms of service agreements for internet-based companies, real estate leases, consumer/client agreements, software development agreements, manufacturing agreements, distributor agreements, advertising agreements, general licenses and any other unique agreement that may become relevant to a company. We also provide legal advice to management to help sort out difficult business situations and create positive outcomes.
Reports and Memorandums of Law
For many companies engaging in new lines of business, legal issues crop up which require answers before an informed decision can be made regarding how to proceed. MasurLaw can perform legal research and provide either summary or extensive legal explanations for questions related to the legality of a particular course of action. We have written a wide variety of reports and opinion letters on issues ranging from the legality of superdistribution or music file sharing to consolidating copyright ownership in the U.S. for clients with wide-ranging international operations, to the risks inherent in certain business processes. Furthermore, we can spot check difficult legal questions orally upon request. We have written reports for multinational corporations looking into new lines of business, for early stage companies experimenting with new business models, for trade associations seeking to defend certain practices and for venture capital firms seeking to quantify the risk of their investment in certain industries, or companies. Furthermore, in certain cases, we have been engaged to put our advice into practice and actually draft the agreements, do the deals, or obtain the permissions our clients sought. We have obtained no action letters from such agencies as the U.S. Securities and Exchange Commission and Internal Revenue Service, sought and obtained permits and established new businesses in foreign countries using the advice of local counsel, or triggered enforcement actions against foreign entities competing unfairly with our clients.
We have written this document to answer common questions about the work we do. If you have questions about these, or any of our other services, please feel free to call and talk things through with us. We are happy to help.