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Nutter: Emerging Companies & Entrepreneurship

Nutter is a full-service law firm based in Boston that provides legal services to emerging companies across various industries, including medical devices, pharmaceuticals, life sciences, software, hardware, information technology, cleantech, mobile, consumer products, analytics, new media, robotics, financial technology, and education technology. The firm's Emerging Companies Group has a dedicated team of lawyers with deep experience in areas impacting emerging companies such as licensing, distribution, e-business, venture capital, and strategic partnering. Nutter also has intellectual property lawyers who help emerging companies secure and defend patents, trademarks, and other rights essential to their future success.

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The Emerging Companies Group helps early stage companies realize value from innovation. In today’s world, entrepreneurship is revolutionizing how people live, work and communicate. Rapidly growing companies driving technological change require flexible and creative partners to help optimize opportunities for success. Entrepreneurs and early stage investors rely on Nutter to provide critical business perspective and legal advice to navigate the difficult waters of starting high-growth businesses. Nutter clearly understands the inherent risks for emerging companies, so our seasoned team of attorneys brings clients the highest level of confidence as it provides the strategic legal counsel, contacts and expertise that leads to success. Our business and intellectual property lawyers are experienced on all sides of the complex issues that emerging companies are likely to encounter. Our business attorneys have deep knowledge in all areas impacting emerging companies including licensing, distribution, e-business, venture capital, and strategic partnering. In addition, our intellectual property lawyers provide the legal and scientific depth necessary to secure and defend the patents, trademarks, and other rights that are essential to the future of emerging companies, regardless of the technological sphere. 155 Seaport Blvd / Boston, MA 02210 / 617.439.2000 / nutter.com EMERGING COMPANIES AND ENTREPRENEURSHIP As a full service firm with a dedicated team of lawyers in the Emerging Companies Group, Nutter supports ventures across the innovation economy: • Medical Devices • Pharmaceuticals • Life Sciences • Software • Hardware • Information Technology • Cleantech • Mobile • Consumer Products • Analytics • New Media • Robotics • Financial Technology • Education Technology As leaders in Boston’s innovation and startup community, our attorneys have a pulse on emerging businesses through their involvement with a variety of organizations. Members of our team serve on the Board of Directors and Partners Committee for The Capital Network, which provides fundraising education for startups. Our attorneys also serve as mentors, guest speakers, and judges for startup accelerators and early-stage investment firms including MassChallenge, LearnLaunch, and GoldenSeeds, among others.
155 Seaport Blvd / Boston, MA 02210 / 617.439.2000 / nutter.com ABOUT NUTTER Nutter is a Boston-based law firm that provides legal counsel to industry-leading companies, early stage entrepreneurs, institutions, foundations, and families, across the country and around the world. The firm’s lawyers are known for their client-centric approach and extensive experience in business and finance, intellectual property, litigation, real estate and land use, labor and employment, tax, and trusts and estates. Founded in 1879, Nutter is dedicated to helping companies prosper in today’s competitive business environment. REPRESENTATIVE MATTERS • Advised Zagster, Inc., the nation’s leading provider of modern, flexible bike share services, in securing $15 million in growth capital. • Represented Kombrewcha (the first alcoholic Kombucha) in its sale to a strategic acquirer. • Advised Wandering Bear Coffee, a cold brew coffee maker, in its recently completed $8 million Series A equity round of financing. • Represented McCarthy Capital, a private equity investment firm, when it led a recapitalization and growth equity investment in Seven10 Storage Software, LLC to further accelerate growth. • Advised Deep River Snacks, makers of premium better-for-you snacks based in Connecticut, in its sale to Arca Continental, the second-largest Coca-Cola bottler in Latin America and parent company of Wise Snacks, Bokados, and Inalecsa. Nutter had been long time general counsel to Deep River Snacks, and had advised the company in its ongoing commercial dealings, intellectual property matters, and its venture capital transactions. • Represented Netra, Inc., a leader in Visual Intelligence and Search, when it closed $1.85 million in Series Seed financing led by Launchpad Venture Group and NXT Ventures with participation from Zelkova Ventures, Mark Cuban, Berwind LLC, and other prominent angels. WILLIAM J. BERNAT PARTNER wbernat@nutter.com JEREMY HALPERN PARTNER jhalpern@nutter.com INDUSTRY CO-CHAIRS EMERGING COMPANIES AND ENTREPRENEURSHIP We provide entrepreneurs with the full spectrum of support that they need to build their businesses and realize their visions: • Entity Formation • Founders Agreements • Financing Strategy and Key Introductions • Angel and Venture Capital • Debt Financing • Private Equity • Initial Public Offerings • Private Placements • Strategic Partnering • Mergers and Acquisitions • IP Strategy • Patent and Trademark Strategy and Prosecution • Employment Support • Equity Compensation • Tax Strategy • Litigation • Licensing • Distribution • Manufacturing • Supply Agreements • Electronic Commerce
We are a law firm where highly-seasoned attorneys bring service to you in a personal and uncomplicated way. Our focus is on expertise, not legalese, and every part of our service is designed to meet your individual needs while delivering the best possible outcome. This is the Nutter Experience, and in a world where one law firm can seem like the next, we believe that we truly stand out. We look forward to working with you. 155 Seaport Blvd / Boston, MA 02210 / 617.439.2000 / nutter.com WELCOME TO NUTTER WHY NUTTER Clients tell us they choose Nutter so they can partner with lawyers who take a client-centric approach to solving their complex legal challenges. Nutter is a nationally-ranked law firm that is just as interested in your business as you are, and we accomplish this by remaining true to four guiding principles: • Put integrity first by relentlessly upholding the highest standards at all times and at every touchpoint with all attorneys • Offer expertise across the board through an array of practice areas staffed with experienced attorneys with proven success • Provide clients with a personalized approach while being mindful of and most efficient with time, ensuring high-value service delivery • Dig deep to understand the context of a client’s business to better accommodate risk tolerance and other nuances of potential outcomes EXPERTISE THAT GETS NOTICED Our commitment to building a culture of legal excellence has led to top industry accolades, including: Chambers USA: America’s Leading Lawyers for Business recognized Nutter for excellence in providing legal services to its clients in numerous practice areas. The firm was selected as a state leader in the categories of Banking & Finance: Corporate & Regulatory, Environment, Labor & Employment, Litigation, and Real Estate. U.S. News & World Report/Best Lawyers selected Nutter as a top national firm in 2018 “Best Law Firms” survey. MARKET-LEADING CLIENTS AND INDUSTRY EXPERTISE From our headquarters in Boston’s Innovation District, we represent global, national and regional companies and organizations. Our roster of clients includes market-leading corporations and financial institutions, research universities, emerging companies, investors, developers, foundations and families. Our expertise resides across a broad range of industries, including: • Banking and Financial Services • Education and Nonprofits • Emerging Companies • Energy • Food and Beverage • Government Agencies and Municipalities • Health Care • Life Sciences • Manufacturing • Medical Devices • Pharmaceuticals • Philanthropy • Private Equity and Venture Capital • Private Wealth • Real Estate • Retail and Consumer Products • Software • Technology
155 Seaport Blvd / Boston, MA 02210 / 617.439.2000 / nutter.com COMMITMENT TO DIVERSITY AND INCLUSION We strive to ensure that traditionally underrepresented groups work at every level of our firm, which has gone a long way toward advancing our position to build an inclusive legal community, reflective of the diverse populations that we all serve. Nutter's efforts are led by its Diversity and Inclusion Committee, whose focus includes the following: • Setting firm-wide expectations for an inclusive culture • Supporting recruitment and retention efforts that focus on traditionally underrepresented groups • Learning from and applying best practices of other institutions and industries • Measuring the firm’s successes and shortcomings • Challenging the status quo when necessary • Communicating the firm’s mission, the action it requires, and the success it promises Our current activities continue Nutter’s commitment to recruiting and retaining talented and qualified people, regardless of race, gender, color, age, disability, religion, ancestry, sexual orientation, national origin, or marital or parental status. COMMITMENT TO COMMUNITY AND PRO BONO At Nutter, we are committed to social justice and progressive social causes. We are proud to be a founding member and challenge participant in the Pro Bono Institute’s Law Firm Pro Bono Challenge. Law firms that become Signatories to the Challenge acknowledge their institutional, firm-wide commitment to provide legal services to low income and disadvantaged individuals and families and non-profit groups. Each year, Nutter proudly honors its commitment to spend three percent of the firm’s paying client billable hours on pro bono work. Recent projects include our initiative with Dell EMC to take on cases for Kids in Need of Defense (KIND), and our work with the Civil Appeals Clinic's Pro Bono Program. Nutter attorneys also engage in a wide variety of civic, charitable, educational, social, and political efforts in the communities in which they live and work. They hold leadership roles in scores of non-profit organizations both locally and across the United States. WELCOME TO NUTTER A PROUD LEGACY Nutter’s vision of professional excellence and dedicated client service has guided the firm since its co-founding in 1879 by Louis D. Brandeis, who went on to become one of the most influential justices to serve on the United States Supreme Court. The legacy of Brandeis—his deep commitment to clients, to pro bono service and the creation of a just society—continues as a source of pride and inspiration for us today.
www.nutter.com Jeremy Halpern Co-Chair, Emerging Companies Group; Co-Lead, Food and Beverage Group T 617.439.2943 F 617.310.9943 E jhalpern@nutter.com 155 Seaport Blvd, Boston, MA 02210 Practices Corporate and Transactions Emerging Companies Venture Capital and Angel Financing Industries Emerging Companies and Entrepreneurship Food and Beverage Information and Technology Life Sciences and Medical Devices Education University of California, Los Angeles, J.D. University of California, Berkeley, B.A., summa cum laude, Phi Beta Kappa Admissions Massachusetts California Jeremy Halpern is a partner and co-chairs Nutter’s Emerging Companies Group. Jeremy also co-leads the firm’s Food and Beverage group. Jeremy’s practice focuses on emerging companies, private equity, venture capital and angel financing transactions, mergers and acquisitions, commercial transactions, executive and team compensation matters, and general start-up support for high growth companies in technology, life sciences, and the food and beverage industry. Concurrently, Jeremy is a member of the board of The Capital Network, a Boston- based nonprofit serving entrepreneurs seeking high growth capital, serves on the Advisory Board and the Executive Education Committee of the MBI Health Program, and on the Advisory Board of Pintley, a MassChallenge 2011 finalist company providing marketing solutions to the craft brewers and bars, and The Bowdoin Group, a premier executive recruitment firm. He continues to serve as a mentor at MassChallenge and LearnLaunch, an expert advisor at the Innovation Hub at Brigham and Women’s Hospital, and as a speaker, reviewer, judge, or mentor for MIT HackingMedicine, HackingPediatrics, the Mass Tech Transfer Center, the Mass Life Science Center, M2D2, BranchFood, Startup Institute, and the UCLA/Harvard Food Law and Policy Conference. Previously, Jeremy served as the Managing Director of Edible Ventures, an angel group investing in food and beverage brands, and on the Board and Investment Committee of MassVentures, an early stage venture capital fund geared toward technology companies in Massachusetts. Jeremy taught entrepreneurial leadership at Tufts University for nine years and co-founded a company in the mobile technology synchronization space. Bio information at: LinkedIn The Capital Network
www.nutter.com William J. Bernat Co-Chair, Emerging Companies Group T 617.439.2713 F 617.310.9713 E wbernat@nutter.com 155 Seaport Blvd, Boston, MA 02210 Practices Commercial and Real Estate Finance Corporate and Transactions Emerging Companies Mergers and Acquisitions Private Equity Venture Capital and Angel Financing Industries Emerging Companies and Entrepreneurship Food and Beverage Information and Technology Life Sciences and Medical Devices Education Suffolk University Law School, J.D., magna cum laude Providence College, B.A., summa cum laude Admissions Massachusetts William J. Bernat is a partner in Nutter’s Corporate and Transactions Department and co-chairs the firm's Emerging Companies Group. He is a member of the firm’s Commercial and Real Estate Finance practice group. Clients routinely rely on Will to help them navigate through private equity, venture capital, and angel financing transactions, as well as mergers and acquisitions, commercial lending transactions, and other corporate governance issues. Tech, life sciences, consumer/retail, and food & beverage companies look to Will for assistance throughout their entire lifespans, from initial planning and formation to operations and exit, including formulating the strategy to realize their business goals and to build the foundation necessary to secure third party investment. Investors in emerging growth companies seek Will’s counsel when structuring their financing transactions. Will has counseled clients in angel and venture backed financings representing an aggregate of over $100 million in investment in local early stage companies. Banks and other financial institutions rely on Will’s expertise when structuring asset- based and other commercial lending transactions with both emerging and entrepreneurial companies and more mature borrowers. Will has guided both lenders and borrowers through transactions representing aggregate commitments in excess of $1 billion. Notable Experience and Client Impact General Corporate/Emerging Companies ■ Serve as transactional and corporate counsel to an artwork rental and rotation startup on multiple financing rounds ■ Act as corporate counsel for a leading sunglasses producer in the United States, including store-within-store partnerships ■ Play a key role in expanding the original fantasy sports-game retailer beyond board-game enthusiasts to online and mobile users through joint ventures and co-promotion arrangements with sports media outlets and developers
www.nutter.com ■ Act as corporate and fundraising counsel for a bike sharing company that serves leading university and business campuses, resorts, and residential communities ■ Serve as corporate and fundraising counsel to an all-natural snack food company, protein-based beer company, and organic fitness beverage company ■ Advise a nationally recognized full-service mobile app development company in multiple transactions M&A ■ Advise on $40 million joint venture between a photoelectric sheeting company and a commercial solar panel producer ■ Represent a co-working space provider, including multiple partnerships and joint ventures with a national retailer ■ Advise on the sale of a privately-held wide format digital printing company to a strategic buyer ■ Provide counsel on the acquisition of a medical device coating and surface treatment business by a private biomedical company for a combination of cash and equity ■ Advise on the acquisition of a UK-based asset management risk model business by a privately-held strategic buyer ■ Advise on the sale of a venture-backed digital photography asset management software company to a privately- held strategic buyer ■ Provide counsel on the sale of a dietary supplement and pharmaceuticals business to a privately-held strategic buyer ■ Advise on the sale of an educational research, marketing, and branding business to a publicly traded media and marketing company ■ Advise on the acquisition of Golf Digest-rated “Best Places to Play” golf course on Cape Cod by private buyers Commercial Finance ■ Represent syndicate of five of the largest U.S. banks in connection with $500+ million loan facility to diversified real estate investment/CMBS, multi-family mortgage and LIHTC syndication company A leader in Boston’s innovation and startup community, Will serves on the partners’ committee of, and is a frequent lecturer and panel member at, The Capital Network, a nonprofit organization that brings together Boston’s largest active community of investors and startup experts to provide practical, hands-on education and personalized mentoring to young entrepreneurs to help them navigate the fundraising process. In addition, Will serves as a mentor and holds regular office hours at MassChallenge, a startup accelerator, and Golden Seeds, one of the nation’s most active early-stage investment firms. Will frequently serves as a lecturer and guest speaker at the MIT Enterprise Forum, the Babson Entrepreneurship Forum, and Massachusetts Continuing Legal Education, where he presents on topics such as the fundamentals of term sheets and capitalization tables, and general corporate finance and formation issues. William J. Bernat
INSIGHTS Jeremy Halpern is a partner and the Director of Business Development for the Emerging Companies Group at Nutter. Jeremy’s practice focuses on emerging companies, private equity, venture capital and angel financing transactions, mergers and acquisitions, executive and team compensation matters, and general start-up support. Serving as the firm’s entrepreneur- in-residence, Jeremy works with companies, investors, and executives in technology, life sciences and the food and beverage industry. Nutter is a top-tier, Boston-based law firm that provides legal counsel to industry-leading companies, early stage entrepreneurs, institutions, foundations, and families, across the country and around the world. The firm’s lawyers are known for their client-centric approach and extensive experience in business and finance, intellectual property, litigation, real estate and land use, labor and employment, tax, and trusts and estates. Co-founded in 1879 by Louis D. Brandeis, who later became a renowned justice of the U.S. Supreme Court, Nutter is dedicated to helping companies prosper in today’s fast-paced business environment. This update is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered as advertising. Copyright © 2017 Nutter McClennen & Fish LLP. All rights reserved. PARTNER Emerging Companies 617.439.2943 jhalpern@nutter.com PRESS CONTACT: Heather Merton Senior Communications Manager 617.439.2166 hmerton@nutter.com Jeremy Halpern Innovation to Funding: What Startups Need to Know WHAT FACTORS SHOULD STARTUPS EMPHASIZE WHEN TOUTING THEIR COMPETITIVE ADVANTAGE? JEREMY HALPERN: Educating investors and customers on where your particular solution fits within the competitive landscape helps to shine a light on its intrinsic potential and value. Startups should be able to answer questions such as: how is the solution better, faster or cheaper than existing solutions? It’s important to remember that “different” doesn’t automatically equal better, so the ability to quantify the value proposition is powerful. Startups should use data to support the premise that there is a clear market need and that their solution is meaningful to the relevant parties—that it will increase revenue, drive customer acquisition, lower costs, decrease risk, or provide better outcomes compared to current options. WHAT ADDITIONAL CONSIDERATIONS MUST LIFE SCIENCES STARTUPS WEIGH? JH: Like most high growth companies, life science entrepreneurs need cutting edge innovation supported by strong intellectual property rights to commercialize their products and services. However, unlike many other kinds of startups, life science companies cannot just build products that improve the outcomes for end-user patients, but must also satisfy the competing priorities of care providers and payors, all while complying with a strict regulatory regime. Additionally, early in their development pathway, many life science companies will require complex strategic relationships with distributors or co-developers in order to achieve their goals. WHAT ARE THE ELEMENTS OF A SUCCESSFUL PITCH? JH: There are three key pieces to any successful pitch. The first is the advance planning, thinking, and preparation that goes into a presentation. This involves identifying and testing the 50 to 150 hypothesis that make up the business plan. The second is to remember that the entrepreneur (not a deck or a summary or a document), is the pitch—the materials are just visual aids for telling a story. This means that the entrepreneur needs to be impressive and practiced in the delivery of the pitch. Rehearsal is key—it will help to hone the delivery and refine the story so that only the strongest, most essential points make the final cut. Third, the pitch is the beginning of a relationship with a potential investor. It needs to be inspiring, enticing and to motivate investors to lean-in: to want to know more about both the entrepreneur and the business. It has to have the right combination of credibility and authenticity while at the same time showing the opportunity for outsized returns and for making a market impact. This is akin to saying, “there is a huge unmet need, and we, tiny startup that we are, are going to solve it, and here’s how.” And the pitch needs to do all this while addressing and alleviating the fear and cynicism of professional investors about the risks of every startup business. “The pitch is the beginning of a relationship with a potential investor. It needs to be inspiring, enticing and to motivate investors to lean-in.”
William J. Bernat is a partner in the Corporate and Transactions Department and a member of the firm’s Emerging Companies and Commercial Finance practice groups. His practice is focused on private equity, venture capital and angel financing transactions, mergers and acquisitions, and corporate governance issues. PARTNER Co-chair, Emerging Companies 617.439.2713 wbernat@nutter.com PRESS CONTACT: Heather Merton Senior Communications Manager 617.439.2166 hmerton@nutter.com William J. Bernat WHAT DO ENTREPRENEURS NEED TO KNOW ABOUT TERM SHEETS IN ORDER TO GET A DEAL DONE? WILLIAM BERNAT: Term sheets are not “one size fits all.” Since most of a term sheet’s provisions are meant to protect the investors’ investment, it’s not uncommon for investors and founders to have vastly different expectations of what a deal will look like. Getting a signed term sheet is one of the biggest early milestones for a company to achieve, but it doesn’t guarantee an investment—that comes only when the parties are able to agree on the definitive deal documents that spell out the specific provisions in the term sheet, among other matters. Founders need to understand that every provision in a term sheet is included for a specific reason and each generally works in concert with the others, meaning that modifying the terms in one section will likely have a rippling effect elsewhere. WHAT’S COVERED IN A TERM SHEET? WB: A lot, all focused around four major themes—economics, management and control, investor rights and protection, and rights upon exit/liquidity. The economics of the deal are usually at the forefront, with the pre-money valuation being one of the hardest terms to reach agreement on. Investors generally want a big enough piece of the pie to justify doing the deal, to get paid back first in a down-side scenario, and to ensure future equity grants to employees don’t dilute their investment. Term sheets also cover management and control issues, as investors want to participate in the decision-making process and control certain founder behavior; investor protections, so that investors can protect the value of their investment and prevent others from getting liquidity out ahead of them; and exit and liquidity, where investors want to ensure they have a way to get their money back in all possible scenarios. HOW CRITICAL ARE OPTION POOLS IN CONDUCTING NEGOTIATIONS AND HAMMERING OUT TERM SHEETS? WB: Options and other equity incentives are the main way that early stage companies attract and motivate key employees, so investors will require a company to increase the number of shares available to be issued under the pool to a certain agreed-upon percentage (10 to 20%) to ensure that the company has the ability to do so. The negotiation isn’t usually around the size of the pool, however, but rather whether the increase should be made on a pre- or post-money basis. OF COURSE THE ECONOMICS ARE IMPORTANT, BUT WHAT ABOUT THE BALANCE OF POWER? WB: Valuation is important, but not the most important thing. Founders often focus too heavily on it, not understanding that a savvy investor may be able to “undo” most of what was gained through the valuation by modifying the other terms in the term sheet. Governance, management and control—where investors will receive certain contractual rights that can limit the founders’ actions regarding major decisions arising during the company’s lifespan—are also key concepts. Investors may have the right to approve a sale of the company or the issuance of future rounds of stock. The investor designee on the board of directors may also have veto rights with respect to certain types of transactions, like incurring debt or increasing executive salaries. These are all critical components of making a fair deal and important aspects of creating a workable term sheet. Negotiating a Term Sheet? Entrepreneurs, Take Note “Founders need to understand that every provision in a term sheet is included for a specific reason and each generally works in concert with the others...” Nutter is a Boston-based law firm that provides legal counsel to industry-leading companies, early stage entrepreneurs, institutions, foundations, and families, across the country and around the world. The firm’s lawyers are known for their client-centric approach and extensive experience in business and finance, intellectual property, litigation, real estate and land use, labor and employment, tax, and trusts and estates. Co-founded in 1879 by Louis D. Brandeis, who later became a renowned justice of the U.S. Supreme Court, Nutter is dedicated to helping companies prosper in today’s competitive business environment. INSIGHTS This update is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered as advertising. Copyright © 2017 Nutter McClennen & Fish LLP. All rights reserved. This update is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered as advertising. Copyright © 2018 Nutter McClennen & Fish LLP. All rights reserved.

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Nutter: Emerging Companies & Entrepreneurship

  • 1.
    The Emerging CompaniesGroup helps early stage companies realize value from innovation. In today’s world, entrepreneurship is revolutionizing how people live, work and communicate. Rapidly growing companies driving technological change require flexible and creative partners to help optimize opportunities for success. Entrepreneurs and early stage investors rely on Nutter to provide critical business perspective and legal advice to navigate the difficult waters of starting high-growth businesses. Nutter clearly understands the inherent risks for emerging companies, so our seasoned team of attorneys brings clients the highest level of confidence as it provides the strategic legal counsel, contacts and expertise that leads to success. Our business and intellectual property lawyers are experienced on all sides of the complex issues that emerging companies are likely to encounter. Our business attorneys have deep knowledge in all areas impacting emerging companies including licensing, distribution, e-business, venture capital, and strategic partnering. In addition, our intellectual property lawyers provide the legal and scientific depth necessary to secure and defend the patents, trademarks, and other rights that are essential to the future of emerging companies, regardless of the technological sphere. 155 Seaport Blvd / Boston, MA 02210 / 617.439.2000 / nutter.com EMERGING COMPANIES AND ENTREPRENEURSHIP As a full service firm with a dedicated team of lawyers in the Emerging Companies Group, Nutter supports ventures across the innovation economy: • Medical Devices • Pharmaceuticals • Life Sciences • Software • Hardware • Information Technology • Cleantech • Mobile • Consumer Products • Analytics • New Media • Robotics • Financial Technology • Education Technology As leaders in Boston’s innovation and startup community, our attorneys have a pulse on emerging businesses through their involvement with a variety of organizations. Members of our team serve on the Board of Directors and Partners Committee for The Capital Network, which provides fundraising education for startups. Our attorneys also serve as mentors, guest speakers, and judges for startup accelerators and early-stage investment firms including MassChallenge, LearnLaunch, and GoldenSeeds, among others.
  • 2.
    155 Seaport Blvd/ Boston, MA 02210 / 617.439.2000 / nutter.com ABOUT NUTTER Nutter is a Boston-based law firm that provides legal counsel to industry-leading companies, early stage entrepreneurs, institutions, foundations, and families, across the country and around the world. The firm’s lawyers are known for their client-centric approach and extensive experience in business and finance, intellectual property, litigation, real estate and land use, labor and employment, tax, and trusts and estates. Founded in 1879, Nutter is dedicated to helping companies prosper in today’s competitive business environment. REPRESENTATIVE MATTERS • Advised Zagster, Inc., the nation’s leading provider of modern, flexible bike share services, in securing $15 million in growth capital. • Represented Kombrewcha (the first alcoholic Kombucha) in its sale to a strategic acquirer. • Advised Wandering Bear Coffee, a cold brew coffee maker, in its recently completed $8 million Series A equity round of financing. • Represented McCarthy Capital, a private equity investment firm, when it led a recapitalization and growth equity investment in Seven10 Storage Software, LLC to further accelerate growth. • Advised Deep River Snacks, makers of premium better-for-you snacks based in Connecticut, in its sale to Arca Continental, the second-largest Coca-Cola bottler in Latin America and parent company of Wise Snacks, Bokados, and Inalecsa. Nutter had been long time general counsel to Deep River Snacks, and had advised the company in its ongoing commercial dealings, intellectual property matters, and its venture capital transactions. • Represented Netra, Inc., a leader in Visual Intelligence and Search, when it closed $1.85 million in Series Seed financing led by Launchpad Venture Group and NXT Ventures with participation from Zelkova Ventures, Mark Cuban, Berwind LLC, and other prominent angels. WILLIAM J. BERNAT PARTNER wbernat@nutter.com JEREMY HALPERN PARTNER jhalpern@nutter.com INDUSTRY CO-CHAIRS EMERGING COMPANIES AND ENTREPRENEURSHIP We provide entrepreneurs with the full spectrum of support that they need to build their businesses and realize their visions: • Entity Formation • Founders Agreements • Financing Strategy and Key Introductions • Angel and Venture Capital • Debt Financing • Private Equity • Initial Public Offerings • Private Placements • Strategic Partnering • Mergers and Acquisitions • IP Strategy • Patent and Trademark Strategy and Prosecution • Employment Support • Equity Compensation • Tax Strategy • Litigation • Licensing • Distribution • Manufacturing • Supply Agreements • Electronic Commerce
  • 3.
    We are alaw firm where highly-seasoned attorneys bring service to you in a personal and uncomplicated way. Our focus is on expertise, not legalese, and every part of our service is designed to meet your individual needs while delivering the best possible outcome. This is the Nutter Experience, and in a world where one law firm can seem like the next, we believe that we truly stand out. We look forward to working with you. 155 Seaport Blvd / Boston, MA 02210 / 617.439.2000 / nutter.com WELCOME TO NUTTER WHY NUTTER Clients tell us they choose Nutter so they can partner with lawyers who take a client-centric approach to solving their complex legal challenges. Nutter is a nationally-ranked law firm that is just as interested in your business as you are, and we accomplish this by remaining true to four guiding principles: • Put integrity first by relentlessly upholding the highest standards at all times and at every touchpoint with all attorneys • Offer expertise across the board through an array of practice areas staffed with experienced attorneys with proven success • Provide clients with a personalized approach while being mindful of and most efficient with time, ensuring high-value service delivery • Dig deep to understand the context of a client’s business to better accommodate risk tolerance and other nuances of potential outcomes EXPERTISE THAT GETS NOTICED Our commitment to building a culture of legal excellence has led to top industry accolades, including: Chambers USA: America’s Leading Lawyers for Business recognized Nutter for excellence in providing legal services to its clients in numerous practice areas. The firm was selected as a state leader in the categories of Banking & Finance: Corporate & Regulatory, Environment, Labor & Employment, Litigation, and Real Estate. U.S. News & World Report/Best Lawyers selected Nutter as a top national firm in 2018 “Best Law Firms” survey. MARKET-LEADING CLIENTS AND INDUSTRY EXPERTISE From our headquarters in Boston’s Innovation District, we represent global, national and regional companies and organizations. Our roster of clients includes market-leading corporations and financial institutions, research universities, emerging companies, investors, developers, foundations and families. Our expertise resides across a broad range of industries, including: • Banking and Financial Services • Education and Nonprofits • Emerging Companies • Energy • Food and Beverage • Government Agencies and Municipalities • Health Care • Life Sciences • Manufacturing • Medical Devices • Pharmaceuticals • Philanthropy • Private Equity and Venture Capital • Private Wealth • Real Estate • Retail and Consumer Products • Software • Technology
  • 4.
    155 Seaport Blvd/ Boston, MA 02210 / 617.439.2000 / nutter.com COMMITMENT TO DIVERSITY AND INCLUSION We strive to ensure that traditionally underrepresented groups work at every level of our firm, which has gone a long way toward advancing our position to build an inclusive legal community, reflective of the diverse populations that we all serve. Nutter's efforts are led by its Diversity and Inclusion Committee, whose focus includes the following: • Setting firm-wide expectations for an inclusive culture • Supporting recruitment and retention efforts that focus on traditionally underrepresented groups • Learning from and applying best practices of other institutions and industries • Measuring the firm’s successes and shortcomings • Challenging the status quo when necessary • Communicating the firm’s mission, the action it requires, and the success it promises Our current activities continue Nutter’s commitment to recruiting and retaining talented and qualified people, regardless of race, gender, color, age, disability, religion, ancestry, sexual orientation, national origin, or marital or parental status. COMMITMENT TO COMMUNITY AND PRO BONO At Nutter, we are committed to social justice and progressive social causes. We are proud to be a founding member and challenge participant in the Pro Bono Institute’s Law Firm Pro Bono Challenge. Law firms that become Signatories to the Challenge acknowledge their institutional, firm-wide commitment to provide legal services to low income and disadvantaged individuals and families and non-profit groups. Each year, Nutter proudly honors its commitment to spend three percent of the firm’s paying client billable hours on pro bono work. Recent projects include our initiative with Dell EMC to take on cases for Kids in Need of Defense (KIND), and our work with the Civil Appeals Clinic's Pro Bono Program. Nutter attorneys also engage in a wide variety of civic, charitable, educational, social, and political efforts in the communities in which they live and work. They hold leadership roles in scores of non-profit organizations both locally and across the United States. WELCOME TO NUTTER A PROUD LEGACY Nutter’s vision of professional excellence and dedicated client service has guided the firm since its co-founding in 1879 by Louis D. Brandeis, who went on to become one of the most influential justices to serve on the United States Supreme Court. The legacy of Brandeis—his deep commitment to clients, to pro bono service and the creation of a just society—continues as a source of pride and inspiration for us today.
  • 5.
    www.nutter.com Jeremy Halpern Co-Chair, EmergingCompanies Group; Co-Lead, Food and Beverage Group T 617.439.2943 F 617.310.9943 E jhalpern@nutter.com 155 Seaport Blvd, Boston, MA 02210 Practices Corporate and Transactions Emerging Companies Venture Capital and Angel Financing Industries Emerging Companies and Entrepreneurship Food and Beverage Information and Technology Life Sciences and Medical Devices Education University of California, Los Angeles, J.D. University of California, Berkeley, B.A., summa cum laude, Phi Beta Kappa Admissions Massachusetts California Jeremy Halpern is a partner and co-chairs Nutter’s Emerging Companies Group. Jeremy also co-leads the firm’s Food and Beverage group. Jeremy’s practice focuses on emerging companies, private equity, venture capital and angel financing transactions, mergers and acquisitions, commercial transactions, executive and team compensation matters, and general start-up support for high growth companies in technology, life sciences, and the food and beverage industry. Concurrently, Jeremy is a member of the board of The Capital Network, a Boston- based nonprofit serving entrepreneurs seeking high growth capital, serves on the Advisory Board and the Executive Education Committee of the MBI Health Program, and on the Advisory Board of Pintley, a MassChallenge 2011 finalist company providing marketing solutions to the craft brewers and bars, and The Bowdoin Group, a premier executive recruitment firm. He continues to serve as a mentor at MassChallenge and LearnLaunch, an expert advisor at the Innovation Hub at Brigham and Women’s Hospital, and as a speaker, reviewer, judge, or mentor for MIT HackingMedicine, HackingPediatrics, the Mass Tech Transfer Center, the Mass Life Science Center, M2D2, BranchFood, Startup Institute, and the UCLA/Harvard Food Law and Policy Conference. Previously, Jeremy served as the Managing Director of Edible Ventures, an angel group investing in food and beverage brands, and on the Board and Investment Committee of MassVentures, an early stage venture capital fund geared toward technology companies in Massachusetts. Jeremy taught entrepreneurial leadership at Tufts University for nine years and co-founded a company in the mobile technology synchronization space. Bio information at: LinkedIn The Capital Network
  • 6.
    www.nutter.com William J. Bernat Co-Chair,Emerging Companies Group T 617.439.2713 F 617.310.9713 E wbernat@nutter.com 155 Seaport Blvd, Boston, MA 02210 Practices Commercial and Real Estate Finance Corporate and Transactions Emerging Companies Mergers and Acquisitions Private Equity Venture Capital and Angel Financing Industries Emerging Companies and Entrepreneurship Food and Beverage Information and Technology Life Sciences and Medical Devices Education Suffolk University Law School, J.D., magna cum laude Providence College, B.A., summa cum laude Admissions Massachusetts William J. Bernat is a partner in Nutter’s Corporate and Transactions Department and co-chairs the firm's Emerging Companies Group. He is a member of the firm’s Commercial and Real Estate Finance practice group. Clients routinely rely on Will to help them navigate through private equity, venture capital, and angel financing transactions, as well as mergers and acquisitions, commercial lending transactions, and other corporate governance issues. Tech, life sciences, consumer/retail, and food & beverage companies look to Will for assistance throughout their entire lifespans, from initial planning and formation to operations and exit, including formulating the strategy to realize their business goals and to build the foundation necessary to secure third party investment. Investors in emerging growth companies seek Will’s counsel when structuring their financing transactions. Will has counseled clients in angel and venture backed financings representing an aggregate of over $100 million in investment in local early stage companies. Banks and other financial institutions rely on Will’s expertise when structuring asset- based and other commercial lending transactions with both emerging and entrepreneurial companies and more mature borrowers. Will has guided both lenders and borrowers through transactions representing aggregate commitments in excess of $1 billion. Notable Experience and Client Impact General Corporate/Emerging Companies ■ Serve as transactional and corporate counsel to an artwork rental and rotation startup on multiple financing rounds ■ Act as corporate counsel for a leading sunglasses producer in the United States, including store-within-store partnerships ■ Play a key role in expanding the original fantasy sports-game retailer beyond board-game enthusiasts to online and mobile users through joint ventures and co-promotion arrangements with sports media outlets and developers
  • 7.
    www.nutter.com ■ Act ascorporate and fundraising counsel for a bike sharing company that serves leading university and business campuses, resorts, and residential communities ■ Serve as corporate and fundraising counsel to an all-natural snack food company, protein-based beer company, and organic fitness beverage company ■ Advise a nationally recognized full-service mobile app development company in multiple transactions M&A ■ Advise on $40 million joint venture between a photoelectric sheeting company and a commercial solar panel producer ■ Represent a co-working space provider, including multiple partnerships and joint ventures with a national retailer ■ Advise on the sale of a privately-held wide format digital printing company to a strategic buyer ■ Provide counsel on the acquisition of a medical device coating and surface treatment business by a private biomedical company for a combination of cash and equity ■ Advise on the acquisition of a UK-based asset management risk model business by a privately-held strategic buyer ■ Advise on the sale of a venture-backed digital photography asset management software company to a privately- held strategic buyer ■ Provide counsel on the sale of a dietary supplement and pharmaceuticals business to a privately-held strategic buyer ■ Advise on the sale of an educational research, marketing, and branding business to a publicly traded media and marketing company ■ Advise on the acquisition of Golf Digest-rated “Best Places to Play” golf course on Cape Cod by private buyers Commercial Finance ■ Represent syndicate of five of the largest U.S. banks in connection with $500+ million loan facility to diversified real estate investment/CMBS, multi-family mortgage and LIHTC syndication company A leader in Boston’s innovation and startup community, Will serves on the partners’ committee of, and is a frequent lecturer and panel member at, The Capital Network, a nonprofit organization that brings together Boston’s largest active community of investors and startup experts to provide practical, hands-on education and personalized mentoring to young entrepreneurs to help them navigate the fundraising process. In addition, Will serves as a mentor and holds regular office hours at MassChallenge, a startup accelerator, and Golden Seeds, one of the nation’s most active early-stage investment firms. Will frequently serves as a lecturer and guest speaker at the MIT Enterprise Forum, the Babson Entrepreneurship Forum, and Massachusetts Continuing Legal Education, where he presents on topics such as the fundamentals of term sheets and capitalization tables, and general corporate finance and formation issues. William J. Bernat
  • 8.
    INSIGHTS Jeremy Halpern isa partner and the Director of Business Development for the Emerging Companies Group at Nutter. Jeremy’s practice focuses on emerging companies, private equity, venture capital and angel financing transactions, mergers and acquisitions, executive and team compensation matters, and general start-up support. Serving as the firm’s entrepreneur- in-residence, Jeremy works with companies, investors, and executives in technology, life sciences and the food and beverage industry. Nutter is a top-tier, Boston-based law firm that provides legal counsel to industry-leading companies, early stage entrepreneurs, institutions, foundations, and families, across the country and around the world. The firm’s lawyers are known for their client-centric approach and extensive experience in business and finance, intellectual property, litigation, real estate and land use, labor and employment, tax, and trusts and estates. Co-founded in 1879 by Louis D. Brandeis, who later became a renowned justice of the U.S. Supreme Court, Nutter is dedicated to helping companies prosper in today’s fast-paced business environment. This update is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered as advertising. Copyright © 2017 Nutter McClennen & Fish LLP. All rights reserved. PARTNER Emerging Companies 617.439.2943 jhalpern@nutter.com PRESS CONTACT: Heather Merton Senior Communications Manager 617.439.2166 hmerton@nutter.com Jeremy Halpern Innovation to Funding: What Startups Need to Know WHAT FACTORS SHOULD STARTUPS EMPHASIZE WHEN TOUTING THEIR COMPETITIVE ADVANTAGE? JEREMY HALPERN: Educating investors and customers on where your particular solution fits within the competitive landscape helps to shine a light on its intrinsic potential and value. Startups should be able to answer questions such as: how is the solution better, faster or cheaper than existing solutions? It’s important to remember that “different” doesn’t automatically equal better, so the ability to quantify the value proposition is powerful. Startups should use data to support the premise that there is a clear market need and that their solution is meaningful to the relevant parties—that it will increase revenue, drive customer acquisition, lower costs, decrease risk, or provide better outcomes compared to current options. WHAT ADDITIONAL CONSIDERATIONS MUST LIFE SCIENCES STARTUPS WEIGH? JH: Like most high growth companies, life science entrepreneurs need cutting edge innovation supported by strong intellectual property rights to commercialize their products and services. However, unlike many other kinds of startups, life science companies cannot just build products that improve the outcomes for end-user patients, but must also satisfy the competing priorities of care providers and payors, all while complying with a strict regulatory regime. Additionally, early in their development pathway, many life science companies will require complex strategic relationships with distributors or co-developers in order to achieve their goals. WHAT ARE THE ELEMENTS OF A SUCCESSFUL PITCH? JH: There are three key pieces to any successful pitch. The first is the advance planning, thinking, and preparation that goes into a presentation. This involves identifying and testing the 50 to 150 hypothesis that make up the business plan. The second is to remember that the entrepreneur (not a deck or a summary or a document), is the pitch—the materials are just visual aids for telling a story. This means that the entrepreneur needs to be impressive and practiced in the delivery of the pitch. Rehearsal is key—it will help to hone the delivery and refine the story so that only the strongest, most essential points make the final cut. Third, the pitch is the beginning of a relationship with a potential investor. It needs to be inspiring, enticing and to motivate investors to lean-in: to want to know more about both the entrepreneur and the business. It has to have the right combination of credibility and authenticity while at the same time showing the opportunity for outsized returns and for making a market impact. This is akin to saying, “there is a huge unmet need, and we, tiny startup that we are, are going to solve it, and here’s how.” And the pitch needs to do all this while addressing and alleviating the fear and cynicism of professional investors about the risks of every startup business. “The pitch is the beginning of a relationship with a potential investor. It needs to be inspiring, enticing and to motivate investors to lean-in.”
  • 9.
    William J. Bernatis a partner in the Corporate and Transactions Department and a member of the firm’s Emerging Companies and Commercial Finance practice groups. His practice is focused on private equity, venture capital and angel financing transactions, mergers and acquisitions, and corporate governance issues. PARTNER Co-chair, Emerging Companies 617.439.2713 wbernat@nutter.com PRESS CONTACT: Heather Merton Senior Communications Manager 617.439.2166 hmerton@nutter.com William J. Bernat WHAT DO ENTREPRENEURS NEED TO KNOW ABOUT TERM SHEETS IN ORDER TO GET A DEAL DONE? WILLIAM BERNAT: Term sheets are not “one size fits all.” Since most of a term sheet’s provisions are meant to protect the investors’ investment, it’s not uncommon for investors and founders to have vastly different expectations of what a deal will look like. Getting a signed term sheet is one of the biggest early milestones for a company to achieve, but it doesn’t guarantee an investment—that comes only when the parties are able to agree on the definitive deal documents that spell out the specific provisions in the term sheet, among other matters. Founders need to understand that every provision in a term sheet is included for a specific reason and each generally works in concert with the others, meaning that modifying the terms in one section will likely have a rippling effect elsewhere. WHAT’S COVERED IN A TERM SHEET? WB: A lot, all focused around four major themes—economics, management and control, investor rights and protection, and rights upon exit/liquidity. The economics of the deal are usually at the forefront, with the pre-money valuation being one of the hardest terms to reach agreement on. Investors generally want a big enough piece of the pie to justify doing the deal, to get paid back first in a down-side scenario, and to ensure future equity grants to employees don’t dilute their investment. Term sheets also cover management and control issues, as investors want to participate in the decision-making process and control certain founder behavior; investor protections, so that investors can protect the value of their investment and prevent others from getting liquidity out ahead of them; and exit and liquidity, where investors want to ensure they have a way to get their money back in all possible scenarios. HOW CRITICAL ARE OPTION POOLS IN CONDUCTING NEGOTIATIONS AND HAMMERING OUT TERM SHEETS? WB: Options and other equity incentives are the main way that early stage companies attract and motivate key employees, so investors will require a company to increase the number of shares available to be issued under the pool to a certain agreed-upon percentage (10 to 20%) to ensure that the company has the ability to do so. The negotiation isn’t usually around the size of the pool, however, but rather whether the increase should be made on a pre- or post-money basis. OF COURSE THE ECONOMICS ARE IMPORTANT, BUT WHAT ABOUT THE BALANCE OF POWER? WB: Valuation is important, but not the most important thing. Founders often focus too heavily on it, not understanding that a savvy investor may be able to “undo” most of what was gained through the valuation by modifying the other terms in the term sheet. Governance, management and control—where investors will receive certain contractual rights that can limit the founders’ actions regarding major decisions arising during the company’s lifespan—are also key concepts. Investors may have the right to approve a sale of the company or the issuance of future rounds of stock. The investor designee on the board of directors may also have veto rights with respect to certain types of transactions, like incurring debt or increasing executive salaries. These are all critical components of making a fair deal and important aspects of creating a workable term sheet. Negotiating a Term Sheet? Entrepreneurs, Take Note “Founders need to understand that every provision in a term sheet is included for a specific reason and each generally works in concert with the others...” Nutter is a Boston-based law firm that provides legal counsel to industry-leading companies, early stage entrepreneurs, institutions, foundations, and families, across the country and around the world. The firm’s lawyers are known for their client-centric approach and extensive experience in business and finance, intellectual property, litigation, real estate and land use, labor and employment, tax, and trusts and estates. Co-founded in 1879 by Louis D. Brandeis, who later became a renowned justice of the U.S. Supreme Court, Nutter is dedicated to helping companies prosper in today’s competitive business environment. INSIGHTS This update is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered as advertising. Copyright © 2017 Nutter McClennen & Fish LLP. All rights reserved. This update is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered as advertising. Copyright © 2018 Nutter McClennen & Fish LLP. All rights reserved.