splitting the pie: basics of the cap table

© 2016 DailyDAC, LLC d/b/a/ Financial Poise™ 1

ONE HOUR LAW SCHOOL 2016SPLITTING THE PIE:

BASICS OF THE CAP TABLEPremier Date: October 21, 2016

ONE HOUR LAW SCHOOL 2016

A Financial Poise Webinar

ONE HOUR LAW SCHOOL 2016

SPLITTING THE PIE: BASICS OF THE CAP TABLE

Premier Date: October 21, 2016

2© 2016 DailyDAC, LLC d/b/a/ Financial Poise™

WE WOULD LIKE TO TAKE THIS OPPORTUNITY TO THANK OUR SPONSORS



meet the facultyPANELISTS

Lynda Davey Avalon Net WorthGene Geekie Arnstein & Lehr LLPRich Leska Meister Seelig & Fein

MODERATOR Robert Sieland DeVry Education Group


Practical and entertaining education for business owners and executives, accredited

investors, and their legal and financial advisors. For more information, visit

www.financialpoise.comDISCLAIMER: THE MATERIAL IN THIS PRESENTATION IS FOR INFORMATIONAL PURPOSES ONLY. IT SHOULD

NOT BE CONSIDERED LEGAL ADVICE. YOU SHOULD CONSULT WITH AN ATTORNEY TO DETERMINE WHAT MAY BE BEST FOR YOUR INDIVIDUAL NEEDS.

http://www.financialpoise.com/


about this webinar

Soon enough, a founder may seek growth with new partners, investors, or employees. Determining their ownership stake is just the beginning of the decision tree. Equity lasts long past after the money is spent or the services are rendered. This webinar explores ways to grow a business and entice and motivate others by sharing pieces of the pie, without giving away the farm. (Metaphors will be mixed). We'll also explore common pitfalls entrepreneurs face when raising capital.


about this seriesWhile the basics about virtually anything- the law included - seem accessible with a few clicks of a mouse, understanding how to use the law practically is another thing. The webinar series, One Hour Law School 2016, explores some of the most common issues faced by business owners, viewed from the real world. The series will jumpstart your understanding of key legal issues and, importantly, discuss practical approaches to dealing and thinking about these matters. You'll learn how to start a company, work with employees and partners, and protect your business's interests.

As with all Financial Poise webinars, each episode in the series is designed to be viewed independently of the other episodes, and listeners will enhance their knowledge of this area whether they attend one, some, or all of the programs.

episodes in this series

EPISODE #1

EPISODE #2 Splitting the Pie: Basics of the Cap Table

10/21/2016

EPISODE #3 11/18/2016

EPISODE #4 Protecting Assets

12/16/2016

Dates above are premier dates; all webinars also available on demand

Forming a Company 9/23/2016

Employment Law 101



Stage Investment Source Investment type ConsiderationsFounding Personal investment (cash, IP, other

assets)/ Sweat equity

Common stock (or partnership/LLC interests)

• Documenting ownership/control between founders is critical

• Important to document/value capital contributions

• Consider equity vesting arrangements/shareholder agreements/ 83(b) election

Friends and family Friends and family of founder(s) who are investing based on personal relationship

• Common stock or convertible notes (which convert to equity based on pricing of institutional investment round)

• Potentially partnership/LLC interests but unlikely due to complicated nature of investment

• Seek counsel to ensure compliance with securities laws; investments by “accredited investors” (high net-worth) generally simpler

Bank loan/bridge loan Bank Term/revolving loan • Requires track record/business model/sufficient assets to assure bank of repayment

• Avoids dilution

Employee equity Employee sweat equity Stock options/restricted stock/restricted stock units/Profits interests (for LLCs/partnerships)

• Can offer low cost employee compensation to fuel growth

• Can be difficult to manage• May not incentivize as planned• May excessively dilute ownership

Institutional investors (VCs/Angels) Investments by institutions and wealthy personal investors

Preferred stock(unlikely to invest in partnership/LLC interests)

• Terms can be complicated• Investors will expect information,

economic and governance rights• Expect significant dilution

Basic Funding Options/Cycle


Equity Basics•Corporation: common or preferred stock, or options/warrants to purchase common or preferred stock

•Common Stock entitles owners to residual interest in profits of company

•Preferred Stock grants negotiated rights to profits of company, typically paid before payments to common stock owners

•Ownership typically evidenced by share certificates, which must be presented at sale


Equity Basics•Partnerships/LLCs: Common or preferred partnership interests, profits interests, or options/warrants to purchase same

•Typically entitles owner to residual interest in profits of LLC/company

•Can be split into classes like preferred stock, with certain classes having right to prior payments before others

•Tax losses may also be allocated to suit owners’ tax planning needs/interests

•Ownership typically evidenced by schedule to partnership/LLC agreement


Founder’s Equity Considerations•Document everything – legal and accounting counsel is essential

•Includes documenting:

•Payments for equity (cash/in-kind contributions/services arrangements) – typically evidenced by subscription/contribution agreements

•Option awards


Founder’s Equity Considerations•Vesting Arrangements• Shares issued with Company’s right to repurchase % of unvested shares at original, typically extremely low, issuance price

• Prevents free-riders and ensures equity is earned

• If equity granted at low enough valuation, founders should consider IRC 83(b) election – election accelerates recognition of income to grant date, instead of vesting date when (hopefully) company is valued higher (and thus shares subject to greater tax)


Founder’s Equity Considerations

•Ensure clear governance and control through Shareholders Agreement (or LLC/Partnership Agreement)


XYZ Company, Inc.Capitalization Table

Stockholder Common StockWarrants for

Common Stock

Series A1 Preferred Stock - Initial

Capitalization - 5/15/2007

Series A2 Preferred Stock 11/15/2007



Series A4 Preferred Stock 12/10/2012 &

3/25/2013

Series A4 Preferred Stock - 8/2013

($0.75)Series B Preferred

Stock - 11/13 ($0.75) Total Outstanding Total Fully Diluted Current OwnershipFully-Diluted Ownership

% Fully Diluted Ownership per

Class

Preferred Stock VC Investor 1 9,950,000 5,000,000 11,161,506 6,000,000 32,111,506 32,111,506 58.48% 46.71% 70.33%VC Investor 2 50,000 50,000 50,000 0.09% 0.07% 0.11%Angel 1 4,000,000 4,000,000 4,000,000 7.28% 5.82% 8.76%Angel 2 2,000,000 2,000,000 2,000,000 3.64% 2.91% 4.38%Angel 3 500,000 500,000 500,000 0.91% 0.73% 1.10%Angel 4 333,334 333,334 333,334 0.61% 0.48% 0.73%Angel 5 6,666,667 6,666,667 6,666,667 12.14% 9.70% 14.60%

Common Stock VC Investor 1 1 1 1 0.00% 0.00% 0.00%Founder 1 250,000 250,000 250,000 0.46% 0.36% 1.08%Founder 2 465,489 465,489 465,489 0.85% 0.68% 2.02%Common Stock issued upon Exercise of Options:

Employee A 44,562 44,562 44,562 0.08% 0.06% 0.19%Employee B 350,000 350,000 350,000 0.64% 0.51% 1.52%Employee C - repurchased - - 0.00% 0.00% 0.00%Employee D 400,000 400,000 400,000 0.73% 0.58% 1.73%

Acquired Company 13,454,403 13,454,403 1.82% 19.57% 58.26%

Acquired Employee A 285,000 285,000 Acquired Employee B 285,000 285,000 Acquired Employee C 100,000 100,000 Acquired Employee D 125,000 125,000 Acquired Employee E 125,000 125,000 Acquirered Emloyee F 80,000 80,000 Acquired Company Shareholders 12,454,403

Stock Option Pool (fully diluted excludes exercised) 9,698,346 8,082,884 12.20% 11.76% 35.00%

Outstanding Stock Options 6,698,099 6,698,099 Less, Options Exercised 1,615,462 Balance Shares Available for Grants 1,384,785

Bridge Loan Bank 45,000 45,000 45,000 0.08% 0.07% 0.19%

Total 9,208,151 45,000 10,000,000 5,000,000 11,161,506 6,000,000 6,500,000 333,334 6,666,667 54,914,658 100% 100%

CAP TABLE EXAMPLE


Sample Equity Payout

Equity Holder

No. of Common Shares

No. of Series A Preferred

Shares

No. of Series B Preferred

Shares

Aggregate Liq. Pref. of Preferred

SharesGross Consid. At

Closing for Shares

Original Issuance Price

per ShareVC Investor 1 1 32,111,506 - $ 16,055,753.00 $ 16,055,756.02 $ 0.50 VC Investor 2 - 50,000 - $ 25,000.00 $ 25,000.00 $ 0.50 Angel 1 - 4,000,000 - $ 2,000,000.00 $ 2,000,000.00 $ 0.50 Angel 2 - 2,000,000 - $ 1,000,000.00 $ 1,000,000.00 $ 0.50 Angel 3 - 500,000 - $ 250,000.00 $ 250,000.00 $ 0.50 Angel 4 - 333,334 - $ 250,000.50 $ 250,000.50 $ 0.75 Angel 5 - - 6,666,667 $ 5,000,000.25 $ 5,000,000.25 $ 0.75 Founder 1 250,000 - - $ - $ 756,129.96 Founder 2 465,489 - - $ - $ 1,407,880.71 Employee A 44,562 - - $ - $ 134,778.65 Employee B 350,000 - - $ - $ 1,058,581.94 Employee D 400,000 - - $ - $ 1,209,807.93 Acquired Employee A 285,000 - - $ - $ 861,988.15 Acquired Employee B 285,000 - - $ - $ 861,988.15 Acquried Employee C 100,000 - - $ - $ 302,451.98 Acquired Employee D 125,000 - - $ - $ 378,064.98 Acquired Employee E 125,000 - - $ - $ 378,064.98 Acquired Employee F 80,000 - - $ - $ 241,961.59 Acquired Company Shareholders 12,454,403 - - $ - $ 37,668,588.88 Total 14,964,455 38,994,840 6,666,667 $ 24,580,753.75 $ 69,841,044.67

Common Cap Table Mistakes

D


• Some founders simply agree to equity terms on a handshake

• At the very least, write it down on a napkin, then follow it up with an email so you have an immutable electronic record

• Nothing is as good as using an experienced attorney

1. Handshake agreements

Adapted from an article by Todd Miller published on Capshare's blog (https://www.capshare.com/blog/10-cap-table-mistakes-that-could-cost-you-money/)

Common Cap Table Mistakes Cont’d

D


•Some co-founders do not stick around

•Concept of vesting protects against people leaving and getting more than they deserve

2. Fully vested founder shares



D


3. Failing to correctly analyze impact of subsequent financing rounds


• Key concepts must be understood- e.g. liquidation preference, participation rights and participation caps.

• Many entrepreneurs unknowingly give up too much value (through ignorance or by mistake) when negotiating terms


D


4. Exercising options too late


• Incentive stock options (ISO’s) can provide holders with favorable tax treatment

• Stock held for over a year can qualify for long-term capital gains tax treatment.

• Taxes will be higher, however, if vested options are exercised when company is sold.


D


5. Failure to negotiate for early exercisable options


• If options are not early exercisable then holder may not be able to obtain favorable tax treatment• If options are early exercisable, holder can exercise all options (vested

and unvested) at any time. • Unvested shares will exercise into restricted stock, • Holder would still have to remain with company to earn shares but

shared would qualify for taxation at long-term capital gains rate if exercised a year or more before exit.


D


6. Mispriced option grants


• IRC 409a regulations require options to be granted with strike price equal to or greater than FMV

• Granting options too low can result in harsh tax penalties for employees + excess costs for company

• Granting options too high is unfair to employees

• 409a valuation is important tool


D


7. Poor record keeping


• Cap table should not simply be an excel spreadsheet

• More properly: a collection of legal documents, agreements and records that tell the story of how ownership in the company has evolved

• Disorganized cap tables can yield errors and missing information, and significant differences between the legal docs and the spreadsheets that management and investors have been relying on as a representation of their equity


D


8. Taking on too much money too early


•Founders are well advised to resist taking more money than really needed

•Result can be unnecessarily losing control to outside investors


D


9. Negotiating option pool pre-money instead of post-money


• When negotiating a term sheet, it will often have a provision for an option pool allotment• This is generally expressed as a percentage of the cap table• However, whether that percentage is calculated before the investment

(pre-money) or after the investment (post-money) makes a difference• If 10% of cap table is carved-out for options pre-money, that means only

existing shareholders get diluted by the option pool. • Additionally, if all the options in the pool don not get issued then new

investors effectively get more shares than they paid for


D


10. Failing to seek professional advice


• The internet is full of blog posts, open source legal documents and pre-built spreadsheets to help founders make sense of cap tables

•However, none of these things can take the place of a qualified professional

More About The Faculty:

D

ROBERT P. SIELAND

[email protected]

Robert Sieland is Senior Counsel, Corporate & Securities, at DeVry Education Group Inc. (NYSE: DV), a global provider of educational services. Rob serves as lead counsel for all of DeVry Group’s corporate and securities matters, including mergers and acquisitions. Prior to joining DeVry, Rob was an associate at Schiff Hardin LLP and McDermott Will & Emery LLP where he represented public and private companies, including private equity firms and their portfolio companies, in connection with mergers and acquisitions transactions, securities offerings, bank financings and corporate governance matters.



D

LYNDA DAVEY [email protected]

Lynda Davey's finance career spans 30 years of advising, financing and investing in public and private companies. She serves as Co-Chief Executive Officer of Avalon Net Worth. Ms. Davey brings broad expertise to her clients, having assisted them strategically position their companies for success by focusing on balanced capitalization, developing and implementing strategic growth plans and optimally structuring transactions.

Ms. Davey is the Chairman and Founder of Avalon Securities Ltd, one of the few woman-owned FINRA and SEC registered broker dealers. Since 1992, Avalon has provided bulge bracket investment banking assistance to mid-market clients. The firm cultivates long term relationships with high caliber business owners and senior executives by assisting them with both short-term and long-term needs including financing for business expansions, balance sheet recapitalizations, acquisitions and liquidity events.

Prior to founding Avalon, Ms. Davey worked at Salomon Brothers on public offerings, divestitures, acquisitions and private placements for clients in a variety of industries. She was also President of Tribeca Corp, a merchant bank with large equity investments in public consumer companies and private buyouts. Before commencing her finance career Ms. Davey practiced as a registered architect.

Ms. Davey serves on the Board and the Finance Committee and previously chaired the Audit Committee of the Girl Scouts of Greater New York and is a Manager of Verite Capital Partners, LLC, a private investment and consulting firm. Ms. Davey earned a B.S. in Architecture from the University of Virginia, a Masters in Architecture from the University of Michigan and a MBA from the Harvard Business School. She holds Series 24, 27, 79 and 63 FINRA licenses and is recognized as a Governance Fellow by the NACD.



D

GENE GEEKIE [email protected]

Eugene Geekie is a partner in the Chicago office of Arnstein & Lehr LLP. He is a member of the Litigation and Bankruptcy & Creditors’ Rights Practice Groups.

Mr. Geekie has more than 27 years of experience representing banks, asset based lenders, and a variety of creditor entities in complex commercial litigation. In addition to representing such clients in recovery of debt obligations and collateral, Mr. Geekie has represented creditors in investigating and litigating with regard to fraudulently obtained loans and misappropriation of collateral, fraudulent transfers of assets, and successor and alter ego liability (piercing the corporate veil) claims against borrowers and their affiliates and principals. He has also litigated cases involving lender liability claims, securities fraud claims, partnership disputes, litigation regarding sophisticated real estate transactions, and foreclosure on large commercial properties, including shopping malls, residential high-rises, condominium complexes, and nationally-recognized golf courses.

Mr. Geekie is also considered a leading authority on issues related to creditors’ rights, bankruptcy, and restructuring matters, with extensive experience representing secured and unsecured lenders in complex bankruptcies, including those in the financial markets, food, energy and automotive industries. He has represented numerous clients in the purchase of the operating assets (including intellectual property) of large bankrupt entities through Section 363 sales, with several transactions exceeding $100 million dollars; most recently leading the bankruptcy team for a client that acquired an extensive portion of a major snack cake business, successfully blocking other unqualified suitors from bidding for the division, thereby saving his client approximately $20 million in acquisition costs.

Prior to joining Arnstein & Lehr, Mr. Geekie was most recently a partner at Freeborn & Peters LLP, where he was a partner in the Litigation Group and served as Chair of the Bankruptcy Litigation Practice Group. Prior to Freeborn & Peters, he was a partner for more than 20 years at the national firm of Schiff Hardin LLP.


mailto:[email protected]



D

RICH [email protected]

Rich Leska is a partner at Meister Seelig & Fein. He is an experienced business lawyer and advisor who concentrates his practice on corporate transactional and securities matters, including public and private securities transactions, mergers and acquisitions, private equity and venture capital transactions, joint ventures, investment fund formation and counseling, start-up company counseling, and employment related matters. Rich counsels business entities and their owners at all stages of their development and in a variety of industries. Clients often recognize him for his ability to zealously advocate their interests in a cordial, non-confrontational, principled and firm manner that sets the stage for a successful working relationship between the parties following the transaction.

Rich was formerly a partner at a major Silicon Valley law firm, and a significant portion of his practice is focused on representing emerging growth companies, the venture capital firms and angel investors who invest in them, and the technologists and executives who drive them forward. He has represented issuers or investors in well over 150 venture capital and angel investment transactions. He frequently acts as “outside general counsel” to his start-up and emerging growth clients, advising them on a wide range of matters, including initial formation, equity compensation arrangements, venture capital financings, mergers and acquisitions, public and private securities offerings, joint ventures, IP strategy, personnel issues and general corporate counseling. Rich has extensive experience representing private equity funds, their portfolio companies, other acquirers and targets in a variety of business combination and corporate partnering transactions, as well as issuers and underwriters in public and private securities offerings.

Rich received his J.D. from Cornell Law School, cum laude, in 1994, where he served as a Managing Editor of the Cornell Journal of Law and Public Policy, and received his B.S. in Business Management and Marketing from Cornell University with highest distinction. He is admitted to practice law in New York and California.

Visit www.eisneramper.comEisnerAmper. Let's Get Down to Business®

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Important Notes

• THE MATERIAL IN THIS PRESENTATION IS FOR GENERAL EDUCATIONAL PURPOSES ONLY.

• IT SHOULD NOT BE CONSIDERED LEGAL, INVESTMENT, FINANCIAL, OR ANY OTHER TYPE OF ADVICE ON WHICH YOU SHOULD RELY.

• YOU SHOULD CONSULT WITH AN APPROPRIATE PROFESSIONAL ADVISOR TO DETERMINE WHAT MAY BE BEST FOR YOUR INDIVIDUAL NEEDS.