Many have asked for help in connection with analyzing whether investors are “affiliates” in a way that would render a startup or growth company ineligible. We’ve written about the analysis (in Forbes and our site) and we developed (for our own Lowenstein Sandler attorneys as our team counsels clients) this checklist to help analyze whether venture-backed startups and growth companies might be eligible. We decided to share it with all of you. You are welcome to share it with others and we hope it is helpful. Please see the disclaimer on the form (the form isn't legal advice nor is it a substitute for counsel, please don't rely on it, using it doesn't create an attorney client relationship with Lowenstein Sandler or our lawyers - see disclaimer on form for more).
If you have any questions, please email us at SBALoans@lowenstein.com.
DISCLAIMER: We’re providing this checklist as of April 7, 2020 at noon Eastern. This is not legal advice and its use does not create an attorney-client relationship between our law firm (Lowenstein Sandler LLP) and anyone using this checklist. Please do not rely on it -- we expressly disclaim any liability if you do rely on it. We understand that there are various approaches to conducting “affiliation” analysis for purposes of Section 301(f) in the context of applying for SBA Section 7(a) PPP loans. We at Lowenstein Sandler LLP developed this checklist to help our law firm’s own attorneys move through the steps of the affiliate analysis. There’s no substitute for having counsel review the Company’s relevant documents because the affiliate analysis calls for legal conclusions. Accordingly, we advise against reaching the legal conclusions without the advice of counsel having reviewed full and accurate information.
This checklist: (1) doesn’t purport to be complete, (2) is geared toward the venture capital/startup community, and (3) as a result, will be as far less relevant outside of that context. While we may provide updates, we do not undertake an obligation to do so or to notify users of changes in the law – the law regarding these matters has been changing daily.
Lowenstein Sandler’s Team has published these resources (among others) we hope may be helpful.
For info: ventureCrush@Lowenstein.com
3.15.20 – Forbes, When the Music Stops: SAFEs & Convertible Notes Give VCs Massive Price Protection: HERE
3.20.20 – Lowenstein Sandler Client Alert: The Families First Coronavirus Response Act–New Paid Leave Mandates for Employers With Fewer Than 500 Employees; Tax Credits To Help Offset Employer Costs: HERE
3.23.20 – Forbes, Guidance from Top VCs around the Globe During the Pandemic: HERE
3.27.20 – Lowenstein Sandler Client Alert: Key Tax and Employee Benefits Provisions of the CARES Act: HERE
3.30.20 – Lowenstein Sandler Client Alert: SBA Paycheck Protection Program: HERE
3.31.20 – Lowenstein Sandler Client Alert: SBA Section 7(a) Loans for VC Backed Growth Companies/Startups Under the CARES Act: HERE
4.1.20 – Forbes, detailing analysis of SBA Loans under 301 vs. 103: HERE
4.2.20 — VIDEO OF OUR SBA 7(a) For Startups/VC W/ LS Team & Congressman Don Beyer (who worked on the legislation)
4.3.20 — Lowenstein Sandler Client Alert: SBA Paycheck Protection Program Update: SBA Interim Rule: HERE
4.4.20 – Forbes, using new Treasury guidance CONFIRMING 301 vs 103: HERE
4.5.20 (update 4/7) – Forbes, “Please don’t make startups Amend Charters” (TREASURY said SAME): HERE
4.7.20 — Lowenstein Sandler Client Alert: SBA Paycheck Protection Program Update: Frequently Asked Questions: HERE
To see our other material related to the pandemic, please visit the Coronavirus/COVID-19: Facts, Insights & Resources page of our website by clicking here.