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Venture Capital & Public Offering Negotiation

Venture Capital & Public Offering Negotiation by Michael J. Halloran

Venture Capital & Public Offering Negotiation

By Michael J. Halloran, Robert V. Gunderson, Jr., Jorge del Calvo, Thomas W. Kintner, Julie M. Robinson
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Get expert strategies and advice from more than 40 top venture capital specialists! Representing the busiest, most dynamic corporate law firms in the U.S., these experts show you how they:

  • Structure and negotiate deals
  • Comply with all relevant legal requirements
  • Understand and untangle tax and accounting problems
  • Document transactions
  • And more.

    Step-by-step guidance -- with ready-to-use forms and documents for your own transactions -- helps your work go quickly and smoothly. You'll also find detailed practical information on all the latest developments in the start-up financing and IPO process, including: limited liability company arrangements, technology-based partnering arrangements, IRS "check-the-box" regulations, the latest SEC policies and rule revisions, emerging ERISA issues, federal securities exemptions for venture financing, and much more!

  • ISBN: 9781567063394
    SKU: 10046322-7777

    Part 1: Formation of the Venture Capital Fund

    • Chapter 1. Agreement of Limited Partnership
    • Chapter 2. Limited Liability Company Agreement
    • Chapter 3. Venture Fund Private Placement Memorandum
    • Chapter 3A. Small Business Investment Company
    • Chapter 4. Investment by Retirement plans in Venture Capital funds under the Employee Retirement Income Security Act of 1974 (“ERISA”)
    • Chapter 5. Investment Company Act and Investment Advisers Act Considerations for Venture Capital Funds
    • Chapter 5A. Public and Private Business Development Companies

    Part 2: Making Portfolio Company Investments

    • Chapter 6. Portfolio Company Investments: Hi-Tech Corporation—Getting to the Term Sheet
    • Chapter 6A. Company Valuation Negotiations
    • Chapter 7. Hi-Tech Corporation: Series B Preferred Stock Purchase Agreement
    • Chapter 8. Hi-Tech Corporation: Amended and Restated Certificate of Incorporation
    • Chapter 9. Hi-Tech Corporation: [Amended and Restated] Investors’ Rights Agreement
    • Chapter 10. Hi-Tech Corporation: Series B Preferred Stock Warrant
    • Chapter 10A. Down Round Financings
    • Chapter 11. Hi-Tech Corporation: Convertible Subordinated Promissory Note
    • Chapter 12. Hi-Tech Corporation: Right of First Refusal and Co-Sale Agreement
    • Chapter 12A. Voting Agreements
    • Chapter 13. Hi-Tech Corporation: Employee Stock Purchase Agreement
    • Chapter 14. Hi-Tech Corporation: Proprietary Information and Inventions Agreement
    • Chapter 15. Tax Implication of Equity Based Compensation Programs of Portfolio Companies
    • Chapter 16. Federal Securities Law Exemptions Used for Venture Capital Placements and Employee Stock Purchases: Regulation D, Section 4(2), Rule 701, and Other Exemptions
    • Chapter 17. Regulations S
    • Chapter 18. Some Aspects of Representation of the Investor Group in a Venture Capital Financing
    • Chapter 19. Creating Successful Technology-Based Corporate Partnering Arrangements

    Part 3: Taking the Portfolio Company Public

    • Chapter 20. Initial Public Offerings; Introduction and Summary of Part III
    • Chapter 21. Letter of Intent
    • Chapter 22. The IPO Organizational Meeting
    • Chapter 23. Time and Responsibility Schedule and Checklist
    • Chapter 24. Due Diligence Materials
    • Chapter 25. Corporate Publicity and the Offering Process
    • Chapter 26. Model Selling Stockholder Documents
    • Chapter 27. Initial SEC Filing Letters and Confidential Treatment Requests
    • Chapter 28. Prospectus/Free Writing Prospectus
    • Chapter 29. SEC Comment Letters and Responses
    • Chapter 29A. Identifying and Avoiding “Cheap Stock” Problems
    • Chapter 30. Blue Sky Memorandum
    • Chapter 31. FINRA Materials
    • Chapter 32. Underwriter and Dealer Materials
    • Chapter 33. Auditors’ Materials
    • Chapter 34. Closing Mechanics, Memorandum of Closing and Closing Documents
    • Chapter 35. Compliance Policies and Procedures for Newly Public Companies
    • Chapter 35A. Corporate Governance Considerations for Pre-IPO and Newly Public Companies
    • Chapter 36. Obligations and Potential Liabilities of Attorneys in Public and Private Offerings
    • Chapter 37. Electronic Mediain the Initial Public Offering Process


    MICHAEL J. HALLORAN is a partner in the Corporate/Securities practice of Pillsbury Winthrop Shaw Pittman LLP an international corporate law firm, in their Silicon Valley and Washington, D.C. offices. From 2006 to May 2008 he was Counselor to Chairman and Deputy Chief of Staff of the Securities and Exchange Commission. As Counselor to the Chairman he advised on the SEC's program to promote investor protection and capital formation, the executive compensation disclosure reforms in Reg S-K, and acted as primary legal counsel to the Chairman. As Deputy Chief of Staff, he administered for the Chairman the divisions and offices of the SEC that have a legal focus, such as Corporation Finance, Investment Management, Trading and Markets, and Enforcement, and also administered the Office of Chief Accountant. He was directly involved in all the SEC rulemakings during that period that are referred to in this text, such as the private and small business offering reforms and the business development company rules. Prior to joining the SEC, Mr. Halloran served as the Senior Partner of the 260-lawyer Corporate and Securities section of the law firm of Pillsbury Winthrop Shaw Pittman LLP, based in San Francisco and Silicon Valley.

    Mr. Halloran had been with Pillsbury Winthrop Shaw Pittman (formerly Pillsbury Madison & Sutro) LLP from 1967 to 1990, and again from 1997, until he joined the SEC in 2006, served as managing partner of its Washington, D.C. office for several years, and headed its Corporate and Securities Group. For many years he has been exceedingly active in the venture capital fund, private placement and initial public offering arenas in Silicon Valley, throughout the nation, and internationally. He has acted as general outside corporate advisor to numerous technology and other companies and financial institutions, both large and small, public and private. He has been lead advisor on multiple forms of corporate finance and structuring transactions worth hundreds of billions of dollars, including formation of venture capital and other private equity funds and advice on portfolio investments, acquisitions, all forms of corporate, partnership, and LLC offerings, and investment company and investment advisory firms and funds.

    In 1990, Mr. Halloran was appointed General Counsel of BankAmerica Corporation and Bank of America, and was also appointed Group Executive Vice President in 1992. He directed a staff of 450, including 190 lawyers, and was responsible for all legal affairs for the bank and the corporation, including its substantial venture capital and securities units, through 1996.

    Mr. Halloran is a Fellow of the Arthur and Toni Rock Corporate Governance Center at Stanford. He presently is Co-Chair of the Task Force on Governance in Business Combinations, and was Co-Chair of the Task Force on Regulatory Restructuring of the section of Business Law of the American Bar Association. He is or was a Chair and Member of several committees and task forces of the ABA Business Law Section, and has served on the Section Council. He also was a member of the California Senate Commission on Corporate Governance, Shareholder Rights, and Securities Transactions. He is a former member of the California State Bar Committee on Corporations, which drafted the revised California Corporations Code.

    Mr. Halloran has been a frequent lecturer on corporate law, securities law, and public andprivate financing at universities and symposia throughout the United States and has contributed numerous articles to legal publications.

    Mr. Halloran is a graduate of the University of California, Boalt Hall School of Law at Berkeley, and also received a B.S. degree in Mechanical Engineering from UC Berkeley. He is a member of the Board of Advisors of the BNA Corporate Accountability Reporter, M&A Lawyer and INSIGHTS, the Securities Law Magazine. He was President of the Boalt Hall Board of Directors. Mr. Halloran acts as corporate board advisor to public companies and has served on the boards of directors or advisory boards of several emerging companies and venture funds.

    ROBERT V. GUNDERSON, JR. is a founding partner of Gunderson Dettmer Stough Villeneuve Franklin & Hachigian. He serves as principal outside counsel for many of the country's leading venture capital firms as well as public and private companies and investment banks. Mr. Gunderson is a nationally recognized authority in the areas of venture capital and emerging growth companies and has represented parties to many of Silicon Valley's most significant financings, IPOs, and mergers and acquisitions. Numerous publications have identified Mr. Gunderson as one of the most influential lawyers in technology and venture capital. In 2007 alone, AlwaysOn recognized him as one of only five attorneys in the United States included in the “AlwaysOn Top 100 Dealmakers,” Forbes named him to their “Midas List” of leading venture capital investors (second highest ranked lawyer in the country on the Forbes list), Lawdragon named him among “500 Leading Dealmakers in America,” and The Legal 500 selected him as a leading attorney in “Venture Capital and Emerging Companies.” Mr. Gunderson has been consistently selected for inclusion in Northern California Super Lawyers. He was listed as one of the “Big 10” in California Law Business (October 2000) as one of California's Top Ten lawyers. He was named “Best Corporate Lawyer” by Upside magazine (1991). He was listed in The American Lawyer's Forty-Five as one of the top 45 lawyers in the nation under age 45 (December 1995). He has also been included in The Best Lawyers in America for over a decade. Mr. Gunderson has authored or edited numerous articles and books, including Corporate Partnering: Structuring and Negotiating Domestic and International Strategic Alliances (Prentice Hall Law & Business 1992) as well as The Private Offering Handbook (Prentice Hall Law & Business 1990).

    Mr. Gunderson currently serves on the Board of Directors of Theravance, Inc., a publicly traded biopharmaceutical company, as well as on the Boards of several private companies. He also serves on the Ewing Marion Kauffman Foundation Advisory Board for the Berkeley Center for Law and Technology at the University of California, Berkeley. Mr. Gunderson holds a J.D. degree from the University of Chicago, where he was Executive Editor of The University of Chicago Law Review. Mr. Gunderson received an M.B.A. in finance from The Wharton School, University of Pennsylvania and an M.A. from Stanford University.

    JORGE DEL CALVO joined Pillsbury Winthrop Shaw Pittman LLP's San Francisco office in 1982 and is a partner in the Silicon Valley office of the firm. Mr. del Calvo specializes in venture capital, corporate and securities transactions, including private placement of securities, public offerings, mergers and acquisitions and joint ventures. He is the managing partner of the Silicon Valley unit of the firm's Corporate and Securities section.

    Mr. del Calvo received a B.A. from Stanford University in 1977 and received a master of arts in history from the University of California at Los Angeles in 1978. He received a master's in public policy from John F. Kennedy School of Government in 1982 and his J.D. from Harvard Law School cum laude in 1981. Mr. del Calvo also studied international law as a Rotary International Fellow at the University of the Philippines.

    Mr. del Calvo is a member of the American Bar Association, where he is a past member of the Small Business Committee of the Corporation, Banking and Business Law Section. He is also a member of the California State Bar Association. Mr. del Calvo is currently a Visiting Lecturer of Law at Stanford University.

    THOMAS W. KINTNER is a Sr. Corporate Counsel with Cisco Systems, Inc., San Jose, California. Prior to joining Cisco, Mr. Kintner was a practicing attorney in Lafayette, California, focusing on emerging companies. He has previously served as Vice President and General Counsel to Arzoon, Inc., a provider of integrated logistics and global trade management technology and as Corporate Counsel to Madge Networks N.V., a global provider of high-performance networking solutions. Prior to that, Mr. Kintner was associated with Pillsbury Winthrop Shaw Pittman LLP in San Francisco, California. Mr. Kintner is experienced in a broad variety of licensing, general corporate and securities matters. Mr. Kintner served as Coordinating Editor of Venture Capital and Public Offering Negotiation from 1992 to 2000, and from 2004 through 2012.

    Mr. Kintner received a B.A. in international relations and economics from The American University, Washington, D.C., and a joint J.D. and M.B.A. degree from Hasting College of the Law (magna cum laude, Order of the Coif) and the Haas School of Business, University of California at Berkeley. Mr. Kintner is admitted to practice in California and New York.

    JULIE M. ROBINSON is of Counsel at Cooley LLP, having retired as a partner at the firm in 2010. She joined the firm in 1993 and is resident in the San Diego office. Ms. Robinson specializes in corporate and securities law, with an emphasis on the representation of emerging and public technology companies. Ms. Robinson advises clients on a broad range of general corporate and securities laws matters, including general corporate governance issues, disclosure issues and reporting requirements, equity incentives, employee compensation and benefits and the formation of new businesses. Ms. Robinson has extensive experience representing clients in public and private equity and debt financings, including initial public offerings and follow-on public offerings, public and private company mergers and acquisitions, venture financings and joint ventures. Prior to joining the firm, Ms. Robinson was a corporate associate in the Los Angeles office of O'Melveny & Myers.

    Ms. Robinson graduated valedictorian of Pepperdine University School of Law in 1991. In 1989, she served as a summer extern to the Hon. Dorothy Nelson, Ninth U.S. Circuit Court of Appeals. Ms. Robinson received her B.A. in Political Science from the University of Rochester in 1978.