Guest Column

How to mess up your startup business in nine easy steps

October 30, 2015
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There is lots of good advice out there about how to succeed. But what if you'd rather fail?

Below are a few pointers on how to mess up your company from a legal perspective. Each pointer is followed by a few reasons you might want to ignore it.

1. Select a company name without checking it out ahead of time.

You may not be the first one to think of your name. Do some Googling. Go to the search function on the U.S. Patent Office website and search the trademark database. Check with an intellectual property lawyer about running a “knock out” search to try to identify any conflicts with other companies already in existence. You do not want to invest heavily in a particular name only to get a nasty letter from a trademark owner demanding you “cease and desist” using that name.

Here's a bonus tip: Go ahead and file an "intent to use" trademark application. The filing fee is $350, but you could spend 10 times that amount or more if you fail to establish your rights early on.

2. Have a vague understanding between cofounders.

Some founders operate on a handshake. After all, you were roommates in college, worked for the same employer and everything else.

Still, clarity is good for everyone. Work with your lawyer to document the ownership amounts and expectations for each cofounder.

3. Give a bunch of equity to someone who later leaves.

Everyone joins a startup with the best of intentions. But the best-made plans often go astray. Sometimes one founder stays and the other leaves. For everyone’s protection, put in place some vesting or other mechanism to get some or all of the equity back from someone who leaves.

4. Get creative with the equity.

Founders are creative people — if they weren't, they might have ended up as lawyers and accountants. Creativity is good, but not when it comes to the equity structure of your company. Unusual "one-of-a-kind" equity incentives or contracts often have unexpected consequences.

If your plan in this area is too off the wall, you may have created a complicated problem that a future investor will insist must be fixed before they will invest money.

5. Fail to protect your intellectual property.

Skipping steps like having a short "invention assignment agreement" for all of your founders, friends and others involved can lead to fights about who owns an idea or software — the individual who created it or the company? Save yourself some trouble and have everyone sign a one-paragraph invention assignment agreement.

6. Do-it-yourself incorporation.

One startup thought it had formed an LLC because the organizers all signed some LLC articles of formation. However, the organizers never filed any documents with the state in which they lived, so they never succeeded in forming an LLC.

Even if funds are tight, find a lawyer to help you get that entity formed properly.

7. Securities laws? What securities laws?

The USA and every state in the Union have laws you must comply with to validly issue equity to investor/owners. What happens if you do not comply? For starters, an investor in an invalid offering may have a “rescission right” to unwind the transaction and get his or her money back. The government can also impose fines and penalties. One bad offering can disqualify you from using legally compliant methods in the future.

One of the biggest mistakes? Announcing you're looking for investors on your website or otherwise generally soliciting the public for money. While general public solicitation is now allowed in limited circumstances, you may greatly limit your ability to raise funds from certain sources — even your rich uncle.

8. No website terms of use. Of course you have a beautiful website! Of course you make great claims about your product or service. Given this, can users sue you for warranties you make on your website? What happens to users' private information? If you get sued, can you control the forum for resolving the dispute? Can you limit your damages?

Established e-commerce websites have “terms of use” and yours should too.

9. Never pay any attention to taxes. Corporations and LLCs are taxed differently. Choose wisely. If you pay people, you need to know whether they are employees or independent contractors and whether any taxes need to be withheld or paid.

Here is an easy one to miss: the IRS 83(b) election. Say you issue stock to a founder that vests over time. When that stock vests, its value will be taxable income to that person based on the value at that time. So if the value goes way up, the taxable income goes way up.

Filing an IRS 83(b) election allows you to take all that value into income on the front end when values are low. You will want to have your lawyer or accountant help you with the technicalities of filing an IRS 83(b) election.

Harvey Koning is a corporate lawyer at Varnum LLP. He can be reached at 

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