Doug is a partner, a former chair of Maslon’s Corporate & Securities Group, and a former managing partner of the firm. In his 35 years of practice, he has represented business leaders as they make important decisions about their companies. He got his start working with an entrepreneur who needed to raise capital for a restaurant concept that would include live birds. That became the Rainforest Café, and Doug went on to guide the company through its IPO and eventual sale.

Today, Doug’s clients operate in spaces diverse as 3D printing, healthcare technology, investment management, and restaurant/retail. As outside general counsel, he recently helped several clients restructure and recapitalize to avoid bankruptcy.

Doug has also served for decades in leadership positions with Meritas, a global alliance of mid-size, independent law firms founded by his mentor in 1990. A former board member and current member of the U.S. leadership committee, Doug helps other law firms and his fellow partners enhance their engagement with Meritas to better serve their clients.

To learn more about the award, see Twin Cities Business: Notable Partners in Law.

The book delivers a comprehensive analysis of the legal framework governing business and commerce in Minnesota, from choosing the right business entity and understanding tax implications to resolving shareholder disputes and navigating secured transactions.

For more information or to order, go to LexisNexis Minnesota Business and Commercial Law.

Susan is ranked in Chambers USA among the top corporate/M&A attorneys in Minnesota. She represents clients in general corporate, taxation, and nonprofit matters, drawing from a diverse background in government, accounting, and law to serve as a holistic business advisor. Susan regularly counsels clients on mergers and acquisitions, business formation, joint ventures, and general corporate matters, and she frequently assists with tax controversies, audits, appeals, planning, and structuring, as well as researching tax law and drafting legal appeals and memoranda. Susan also serves on the Maslon board of directors.

Katie, chair of the Corporate & Securities Group, assists clients across a broad range of corporate and transactional legal needs. She has managed and negotiated complex mergers & acquisitions, corporate reorganizations, buy-sell agreements, and business succession agreements. Her expertise also includes negotiating, drafting, and revising commercial contracts, with particular focus on technology-related agreements. In addition, she ensures clients remain up to date and compliant on data retention, website terms of use, and website privacy policies.

Terri, a business attorney and mediator, focuses her practice on M&A, restructurings and shareholder business divorces, and mediation of commercial disputes. She currently serves as a senior counsel with Maslon.

Yujin advises clients on contract drafting and negotiation, compliance issues, and general corporate law. Her background in international trade informs her approach to common and uncommon business challenges and how to successfully manage them.

Jessica assists clients in general corporate law, nonprofit formation, contracts, and mergers and acquisitions. Prior to attending law school, Jessica earned her master’s degree from Georgetown University in art and museum studies, and gained valuable experience as a museum collections and exhibitions manager and as a grant writer.

Matthew is an accomplished attorney and seasoned entrepreneur who returned to private practice after a decade of successfully running his own business. As the principal co-founder and board chair of Bauhaus Brew Labs, Matt has personally walked in the shoes of business owners, honing his capabilities in business finance, commercial transactions, strategic planning, and regulatory issues.

Laura is a Corporate & Securities Group associate who collaborates with corporate clients to achieve their business goals while protecting their legal interests. Laura focuses on mergers and acquisitions, contract drafting and negotiation, and legal compliance. She has a passion for helping small business owners and finds that these relationships are the driving force behind her work.

National "Best Law Firm" Ranking:

• Appellate Practice [Tier 3]
• Commercial Litigation [Tier 3]
• Litigation — Banking & Finance [Tier 3]
• Securities Regulation [Tier 3]

Regional/Metro: Minneapolis "Best Law Firm" Ranking:

• Appellate Practice [Tier 1]
• Bet-the-Company Litigation [Tier 1]
• Commercial Litigation [Tier 1]
• Litigation—Banking & Finance [Tier 1]
• Product Liability Litigation—Defendants [Tier 1]
• Securities Regulation [Tier 1]
• Trust & Estates Law [Tier 1]
• Employment Law — Management [Tier 2]
• Litigation—Antitrust [Tier 2]
• Litigation—Intellectual Property [Tier 2]
• Litigation—Labor & Employment [Tier 2]
• Securities / Capital Markets Law [ Tier 2]
• Employee Benefits (ERISA) Law [Tier 3]
• Franchise Law [Tier 3]
• Litigation—Securities [Tier 3]

To view the full rankings, go to: U.S. News - Best Lawyers® 2021 "Best Law Firms" Rankings.

U.S. News Media Group and Best Lawyers® rank more than 15,000 firms nationally. The rankings are based on a rigorous evaluation process that includes the collection of client and lawyer evaluations, peer review from leading attorneys in their field, and review of additional information provided by law firms as part of the formal submission process.

The new categories of accredited investors were based primarily on investors' level of financial sophistication, deviating from the SEC's historic focus on the level of investors' wealth and income. According to the SEC's press release, "the amendments update and improve the definition to more effectively identify institutional and individual investors that have the knowledge and expertise to participate in those markets."

Amendments to Regulation D: Expanded Definition of "Accredited Investor"

New Categories – Individuals. The amendments add two new categories in the accredited investor definition for individuals:

• A category that allows individuals to qualify as accredited investors who hold a Series 7, 65, or 82 license in good standing, or hold other certifications, designations, and credentials in good standing that the may be designated by future SEC order; and
• A category that enables "knowledgeable employees," as defined in Rule 3c-5(a)(4) under the Investment Company Act, of a private fund to qualify as accredited investors for investments in the fund.

The accredited investor standard for individuals had previously remained largely unchanged since it was first adopted in 1982, requiring an individual to have a net worth in excess of $1 million or annual income in excess of $200,000 or a joint annual income with one's spouse in excess of $300,000. Those minimum thresholds were left unchanged by the amendments and were not adjusted for inflation going forward, likely meaning that more people will enter that category over time.

When determining income and net worth for purposes of qualifying as accredited investors, the amendments permit natural persons to include joint income and joint net worth from "spousal equivalents," which the SEC defines as a cohabitant occupying a relationship generally equivalent to that of a spouse. The amendments also clarify that assets do not have to be held jointly to be included in the calculation of net worth, and that the securities being purchased by an individual investor relying on the joint-net-worth test need not be purchased in joint names.

New Categories – Institutional Investors. For institutional investors, the amendments add the following entity types to the current list of entities that may qualify as accredited investors:

• Investment advisers registered under Section 203 of the Investment Advisers Act of 1940 (the "Advisers Act") or the laws of the various states, as well as exempt reporting advisers under Sections 203(m) or (l) of the Advisers Act;
• Rural business investment companies ("RBICs"), as defined in Section 384A of the Consolidated Farm and Rural Development Act;
• Limited liability companies that have total assets in excess of $5 million and were not formed for the specific purpose of acquiring the securities offered (which codifies a long-standing SEC position);
• Any entity, including Native American tribes, labor unions, government bodies and funds, and entities organized under the laws of a foreign country, owning "investments," as defined in Rule 2a51-1(b) under the Investment Company Act, in excess of $5 million and that was not formed for the specific purpose of investing in the securities offered; and
• "Family offices" with at least $5 million in assets under management and their "family clients," as each term is defined under the Advisers Act, if such family office is not formed for the specific purpose of acquiring the securities offered and its prospective investment is directed by a person who has such knowledge and experience in financial and business matters that such family office is capable of evaluating the merits and risks of the prospective investment.

The SEC also adopted conforming amendments to "test-the-water" provisions of Rule 163B under the Securities Act and to Rule 15g-1 under the Exchange Act.

Amendments to Rule 144A: Expanded Definition of Qualified Institutional Buyer (QIB)

In addition to amending the accredited investor definition, the SEC amended Rule 144A to (1) expand the definition of QIB in Rule 144A to include limited liability companies and RBICs if they meet the $100 million threshold for securities owned and invested in the definition, and (2) add to the list any institutional investors included in the accredited investor definition that are not otherwise enumerated in the definition of QIB, provided they satisfy the $100 million threshold.

Controversy in Commissioner Vote

The amendments were adopted by a divided SEC in a 3-2 vote of the commissioners, with commissioners filling Republican seats voting in favor. The commissioners filling Democratic seats opposed the amendment, primarily based on the decision not to increase the minimum net worth or annual income thresholds for individuals or to index them for inflation. In the SEC's press release, SEC Chairman Jay Clayton lauded the amendments, stating that:

"[f]or the first time, individuals will be permitted to participate in our private capital markets not only based on their income or net worth, but also based on established, clear measures of financial sophistication. I am also pleased that we have expanded and updated the list of entities, including tribal governments and other organizations, that may qualify to participate in certain private offerings."

In a joint statement critical of the amendments, Commissioners Allison Herren Lee and Caroline Crenshaw referred to the accredited investor definition as "the single most important investor protection in the private market" and faulted the SEC for continuing a "steady expansion of the private market, affording issuers of unregistered securities access to more and more investors without due regard for the risks they face, and without sufficient data or analysis to ensure that our policy choices are grounded in fact rather than supposition."

Next Steps for Companies Raising Capital and Their Advisors

Now is the time for companies raising capital in Regulation D private placements, both private and public, and their investment bankers and advisors to update their documents and processes in light of the new accredited investor standards, including revising standard forms of subscription agreements that include "check-the-box" investor representations which list categories of accredited investors.

We Can Help

If you have questions regarding the expanded accredited investor definition or need assistance in determining how the expanded definition affects your business, please contact an attorney in Maslon's Corporate & Securities Group. We are ready to help you with these changes.

This is the first significant change in these disclosure requirements in over 30 years. The SEC stated in its press release that these amendments "update these items to reflect the many changes in our capital markets and the domestic and global economy in recent decades." The amendments will be effective 30 days after publication in the Federal Register, with likely effectiveness in October 2020.

Disclosure Amendments

The amended disclosure rules are contained in the SEC's adopting release on pages 123-129. The amendments, described in the SEC's press release, include the following important changes:

Business Disclosures. Under the amended rules, the description of the development of the business is more principles-based, focusing on disclosure of "information material to an understanding of the general development of the business." The previous specific requirements, including a specific historical time frame (five years for larger companies), are eliminated. However, material changes in a previously announced business strategy must be addressed. After the registrant's initial filing, the disclosure can incorporate a previously filed business description by reference, including a hyperlink, and can provide an update from this information.

Specific Business Topics. The amended rule changes the non-exclusive list of business disclosure topics in Item 101(c). Some of the previous specific disclosures, such as the company's year of organization, backlog orders, and working capital practices, have been deleted. The discussion of compliance with material government regulations has been broadened beyond environmental laws. The amended rule also requires a discussion of human capital resources, to the extent material to an understanding of the business, including any human capital measures or objectives that the registrant focuses on in managing its business. As discussed below, this human capital disclosure was a controversial topic that elicited numerous public comments and dissents from two commissioners.

Little Change for Smaller Reporting Companies. The business disclosure requirements for smaller reporting companies in Item 101(h) were already more general and principles-based than for other companies. In the amendments, the SEC elected to make only two changes to these requirements: (1) the three-year historical time frame is eliminated; and (2) after the registrant's initial filing, the disclosure can incorporate a previously filed business description by reference, including a hyperlink, and can provide an update from this information.

Legal Proceedings. The amendments allow the registrant to provide the required information by hyperlink or cross-reference to legal proceedings disclosure located elsewhere in the document to avoid duplicative disclosure—many companies currently repeat the same disclosures in this section and the notes to financial statements. The amended rule also implements a modified disclosure threshold for certain governmental proceedings resulting in monetary sanctions.

Risk Factors. The amended rule requires risk factors to be organized under relevant headings, in addition to the existing requirement that each risk factor be set forth under a descriptive subcaption. Any risk factors that may generally apply to an investment in securities should be disclosed at the end of the risk factor section under a separate heading for "General Risk Factors." If the risk factors section is longer than 15 pages, a summary risk factor disclosure of up to two pages is required in the first part of the disclosure document.

Controversy Over Human Capital and ESG Disclosures

The amendments were adopted by a 3-2 vote of the Commissioners, as is often the case these days. The dissenters expressed disapproval of the "generic and vague" principles-based disclosure with respect to human capital and regulatory matters, rather than requiring specific information and metrics. The dissents reflected the opinions in many of the public comments to the proposed rules, pushing for more specific disclosures about human capital management, climate change risk, and other environmental, social, and governance (ESG) metrics.

For years, many commentators have been advocating for specific reporting of employment practices and diversity measures, among other things. For a good discussion of the controversy and the global trend toward reporting these measures, see "Human Capital's Big Reveal" by David McCann on CFO.com.

Consider Enhanced Human Capital Reporting

Even though the new rules do not endorse any specific current human capital reporting metrics, the SEC stressed the need for companies to disclose measures and objectives that are important to understanding a company's industry and workforce, which could include measures of part-time vs. full-time employees, independent contractors, and turnover. Companies should focus on enhancing these human capital disclosures, which will continue to be a focus of investors and regulators going forward.

We Can Help

If you have any related questions or need help navigating public company reporting requirements for your business, please contact Maslon's Corporate & Securities Group. We are ready to help you with these changes.

For more information or to register, go to: "Negotiating Contracts and Leases When the Unexpected Hits: a Conversation with LegalCORPS."

Marty has more than 35 years' experience advising public and privately held companies on securities and corporate matters. His practice is concentrated in securities and corporate finance, including public offerings, private placements, venture capital financings, and mergers and acquisitions involving public and private companies. Marty regularly advises public companies of all sizes regarding preparation of public reports and proxy statements, public disclosures, insider trading, securities regulatory compliance, corporate governance matters, executive compensation, and stock plan issues. He provides business legal services to privately held corporations, partnerships, and limited liability companies in all stages, from organization through their initial public offering or sale. He is also an active volunteer business attorney with LegalCORPS, providing pro bono business law advice, is a past president of the board of LegalCORPS from 2015-2017, and was named Volunteer of the Year in 2019.

Shane counsels clients on corporate matters, including mergers and assets acquisitions, contract issues, and corporate governance. With experience spanning a broad range of industries, he has particular depth advising closely held corporations to help them meet their goals throughout all stages of the business cycle—from corporate formation to the sale of the business. Shane is highly skilled at simplifying the complex for his clients—always with the goal of creating a clear actionable path to a meaningful solution.

• Term. The minimum term to repay any non-forgiven proceeds for any new PPP loans is extended from 2 to 5 years (the interest rate remains at 1%). For existing loans, lenders and borrowers will have to agree to an extension.
• Covered Period. Under the prior program rules, for the loan to be forgiven, a borrower needed to use loan proceeds on specified eligible expenses during the 8-week period after receiving the loan or the 8-week period starting on the date of the first payroll cycle after receiving the loan. Now, current PPP borrowers can opt to extend the period to 24 weeks following receipt of loan proceeds, or elect to keep the original 8-week period. Any new PPP borrowers will have a 24-week covered period, but such period cannot extend beyond December 31, 2020. It is unclear at the time how the move to a 24-week covered period will impact the $15,385 cap payment to any individual employee during the 8-week period (i.e. $100,000 annualized for the 8-week period), referenced in the SBA Rules and Loan Forgiveness Application. Updated guidance from the SBA is expected. Importantly, the extension of the covered period does not extend the deadline to apply for a PPP loan, with applications for new PPP loans being accepted through June 30, 2020.
• Payroll Cost. To qualify for loan forgiveness, borrowers now must spend 60% of loan proceeds on payroll costs (previously, the SBA imposed a 75% requirement), and may use up to 40% of loan proceeds on interest payments on mortgage obligations (excluding prepayments of or payments of the principal), rent payments, or utility payments. Importantly, although this 60/40 requirement provides additional flexibility, it now appears to be a "cliff." The borrower must spend a minimum of 60% of its loan on payroll costs or none of the loan will be forgiven (i.e. if you spend 41% of loan proceeds on rent and utilities, the entire loan becomes ineligible for forgiveness).
• Rehire Safe Harbor. Previously, to be eligible for full loan forgiveness, a borrower was required to restore its full-time equivalent employee ("FTE") level and restore reduced wages (reduced by more than 25%) to the February 15, 2020 levels by June 30, 2020. This date is extended to December 31, 2020.
• Employee Availability Exemption. New under the Act, borrowers will be now exempted from a proportional reduction in loan forgiveness due to a reduction in the number of FTEs if, in "good faith," the borrower is able to document that between February 15, 2020, and December 31, 2020, the borrower was unable to (1) rehire employees who had been employed on February 15, 2020, or hire similarly qualified employees for unfilled positions on or before December 31, 2020; or (2) return to the same level of business activity at which such business was operating at before February 15, 2020, due to compliance with federal guidance related to the maintenance of standards for sanitation, social distancing, or any other worker or customer safety requirement related to COVID–19.
• Extended Deferral Period. The Act removes the previous 6-month period to defer PPP loan payments and provides instead for deferral until the borrower applies for forgiveness. However, in the event the borrower fails to apply for forgiveness within 10 months after the last day of the covered period for PPP loan forgiveness, the borrower must then begin making payments of principal, interest, and fees on the loan.
• Defer Payroll Taxes. Borrowers may now defer payment of payroll taxes incurred between March 27 and December 31, 2020 (previously, borrowers were prohibited from both obtaining a PPP loan and utilizing this tax deferral under the CARES Act).

Next Steps

In light of these reforms, current borrowers should consider taking the following steps:

1. Reach out to your lender to request a loan term extension if you think any portion of the loan might not be forgiven.
2. If you elect to use the 24-week covered period, recalculate your payroll costs for the 24-weeks from your loan origination date. If you reduce the amount of loan proceeds you are using on payroll costs, ensure you are still using at least 60% of the proceeds on payroll.
3. If you anticipate difficulties in eliminating the reduction in the number of FTEs by December 31, 2020 (i.e., hiring similarly qualified or re-hiring the same employees to your pre-February 15, 2020 numbers), or you have concerns about the ability for your business to return to the same level of business activities by such time, thoroughly document any evidence supporting these concerns and your related business decisions. For example, document all written job offers, rejections and job postings, and all steps your business is taking to comply with OSHA, CDC, and HHS procedures.

We Can Help

Please contact Maslon's Corporate & Securities Group if you have questions or need assistance taking advantage of the relief provided under the CARES Act, as amended by the Paycheck Protection Program Flexibility Act of 2020.

Marty has more than 35 years' experience advising public and privately held companies on securities and corporate matters. His practice is concentrated in securities and corporate finance, including public offerings, private placements, venture capital financings, and mergers and acquisitions involving public and private companies. Marty regularly advises public companies of all sizes regarding preparation of public reports and proxy statements, public disclosures, insider trading, securities regulatory compliance, corporate governance matters, executive compensation, and stock plan issues. He provides business legal services to privately held corporations, partnerships, and limited liability companies in all stages, from organization through their initial public offering or sale. He is also an active volunteer business attorney with LegalCORPS, providing pro bono business law advice, is a past president of the board of LegalCORPS and was named Volunteer of the Year in 2019.

Shane counsels clients on corporate matters, including mergers and assets acquisitions, contract issues, and corporate governance. With experience spanning a broad range of industries, he has particular depth advising closely held corporations to help them meet their goals throughout all stages of the business cycle—from corporate formation to the sale of the business. Shane is highly skilled at simplifying the complex for his clients—always with the goal of creating a clear actionable path to a meaningful solution.

For more information or to register, go to: UST Opus College of Business, "Legal Issues: Business Contract Considerations, Workouts & Bankruptcy."

Ordinarily, to be eligible for an SBA Section 7(a) business loan, businesses must be unable to obtain credit elsewhere. The PPP waives this "credit elsewhere" test, thereby expanding greatly the pool of potential business applicants. However, the PPP requires that a business certify in good faith that "[c]urrent economic uncertainty makes [its] loan request necessary to support [its] ongoing operations."

Prior to April 23, 2020, the SBA had offered little guidance on the meaning of this certification. But in the wake of high-profile publicly held companies returning their PPP loan proceeds, the SBA clarified on April 23, 2020, that this certification requires businesses to "take into account their current business activity and their ability to access other sources of liquidity sufficient to support their ongoing operations in a manner that is not significantly detrimental to the business." The SBA stated further that "it is unlikely that a public company with substantial market value and access to capital markets will be able to make the required certification in good faith, and such a company should be prepared to demonstrate to the SBA, upon request, the basis for its certification." Unfortunately, neither "substantial market value" nor "access to capital markets" was defined.

Key Considerations
This guidance raises potential issues for businesses who have already received PPP loans. Business recipients of a PPP loan must consider whether, in light of the SBA's new guidance, its certification of need ("necessary to support ongoing operations") remains accurate and made in good faith. This applies with equal force to private and publicly held companies.

However, the language in the SBA's new guidance raises especially difficult issues for publicly held companies. Despite meeting PPP size and affiliation requirements, publicly held companies need to consider whether they have "substantial market value" and "access to capital markets" given the lack of definitions of these terms. Further, the SBA's requirement that businesses analyze "their ability to access other sources of liquidity sufficient to support their ongoing business operations" appears to directly contravene the waiver of the "credit elsewhere" test.

While the SBA's language does not preclude all publicly held companies from obtaining a PPP loan, given the SBA's explicit example of an ineligible business as one that is publicly held, these companies must take extra precaution in analyzing their certification of need. Without further clarification on what constitutes "substantial market value," even publicly held companies with relatively small market capitalization must analyze whether they remain eligible.

Consequences of Bad Faith
Making a false statement in connection with obtaining a PPP loan can lead to serious consequences, including, but not limited to, criminal liability. However, on April 24, 2020, the SBA issued a supplemental Interim Final Rule on the PPP, providing a safe harbor for any business that applied for a loan prior to April 24, 2020, but now believes it is ineligible for lack of need. So long as such business applicant repays the loan in full by May 7, 2020, the SBA will deem the business to have made its certification in good faith.

Best Practices for Good Faith
Reports are emerging that some public companies of relatively large size are determining that they can retain their PPP loans despite the unclear language of the SBA guidance, while other companies are repaying their loans. Companies retaining the loans may have relied on language in the guidance that they are eligible if they are not able to "access other sources of liquidity sufficient to support their ongoing operations in a manner that is not significantly detrimental to the business." Given the requirement that the certification must be made in good faith, we encourage companies that conclude that they are eligible to obtain or retain the PPP loans in light of the SBA's guidance to carefully document their analysis in support of this conclusion.

We Can Help
Please contact Maslon's Corporate & Securities Group if you have questions or need assistance analyzing your eligibility for a loan under the Paycheck Protection Program.

President Trump signed into law an updated version of the CARES Act (the "Act") on March 27, 2020. The Act provides an estimated two trillion dollars' worth of relief for individuals and businesses in an effort to mitigate the effects of the ongoing COVID-19 pandemic. The Act makes available emergency funds in the form of loans, credits, and grants to businesses of all sizes.

Given the emergent situation, the Act was drafted and passed expeditiously, which resulted in certain provisions (and programs) lacking detail or otherwise requiring further rulemaking. The summary below provides our current understanding of the Act, but as more details are made available (i.e., rules are promulgated by the applicable government bodies and/or insight is gained from our experience with the Act), Maslon will provide updates. 

Update: The summary below has been updated to include information on the Main Street Lending Program announced on April 9, 2020, and to reflect clarifications found within the Interim Final Rule for the Paycheck Protection Program released on April 2, 2020 (the "Interim Final Rule"). The full Interim Final Rule is available at sba.gov.

Scroll down to view the full information on key resources available to businesses, including provision eligibility and processes, or use the below links to go directly to the section which interests you most:

• Business Loans
  • Paycheck Protection Loans for Small Businesses
  • Expansion of SBA Disaster Loans
  • Direct Loans for Eligible Businesses
  • Mid-Size Direct Lending Program (Pending)
  • Main Street Lending Program
• Tax Credits
  • Employee Retention Tax Credits
  • Delay of Payment of Employer Payroll Taxes
  • Net Operating Losses
• Additional Provisions

Business Loans

Paycheck Protection Loans for Small Businesses

The most significant financial resource available for small businesses under the Act is the "Paycheck Protection Program" (the "Program"). Employers with 500 or fewer employees can obtain loans under this Program through the Small Business Administration ("SBA") Section 7(a) loan program to pay for payroll costs and other expenses (e.g., interest on mortgage loans and other secured debt, rent and utility costs) from February 15, 2020, through June 30, 2020. Payroll costs include employee salary (up to $100,000/year for an individual employee), wages, commissions, payment for vacation, parental, family, medical, or sick leave, health and retirement benefits payments, and other costs.

The SBA clarified in the Interim Final Rule that payments made to independent contractors do not constitute payroll costs. The SBA clarified in the Interim Final Rule – Additional Eligibility Criteria and Requirements for Certain Pledges of Loans that payroll costs also include partnership draws. Partnerships and limited liability companies filing taxes as a partnership may report the self-employment income of general active partners as payroll costs (up to $100,000 annualized) on a PPP loan application filed by or on behalf of the partnership. A partner cannot submit a separate loan application as a self-employed individual. The Interim Rule is inconsistent on whether the payroll cost calculation is based upon the trailing twelve months prior to submitting a loan application or the prior calendar year. Maslon will provide additional updates as more guidance becomes available.

Loan Eligibility

Loans under the Program are available to the following businesses as long as the business was operational as of February 15, 2020, had employees, and paid wages and payroll taxes:

• Businesses with up to 500 employees, including part time employees.
• "Small business concerns" are generally eligible for SBA loans, which are independently owned and operated for-profit companies with a place of business in the U.S. (and that operate primarily within the U.S. or make significant contributions to the U.S. economy through the payment of taxes or use of American products, materials, or labor). This would generally exclude nationally-recognized companies. Whether a business is an eligible small business concern is determined by established SBA regulations, based upon limits on either revenue or employee count. Such limits vary by industry. Refer to the SBA's Table of Small Business Size Standards Matched to NAICS Codes, available at sba.gov.
• Businesses in the Accommodation and Food Service Industries (e.g., full-service restaurants, hotels) are eligible provided that if the business has more than one physical location, it does not employ more than 500 employees at each location.
• SBA "affiliation rules"—meaning that the SBA generally counts the employees or annual receipts of a business's affiliates when determining eligibility—are also waived for: (1) businesses in the Accommodation and Food Service Industries that employ not more than 500 employees; (2) franchises; or (3) businesses that receive financial assistance from a small venture investment company licensed under the SBA. For example, if a restaurant owner owns 51% of another restaurant business, the general SBA rule that the employees or receipts of the second restaurant is/are counted in determining the business's eligibility is waived.

Loan Details

• Non-seasonal businesses (in existence between February 15, 2020, through June 30, 2020) may obtain loans for up to $10 million. However, the amount of the loan a non-seasonable business is eligible for would be the lesser of: (1) The average monthly payroll costs (as described above) during the year prior to making the loan x 2.5; or (2) $10 million. Note, however, that the outstanding amount of any loan made under the SBA's Disaster Loan Program between January 31, 2020, and the date upon which such loan may be refinanced as part of the Program will be added to the preceding sub-section (1), which could further increase the loan money available to a business.
• Standard fees for SBA Section 7(a) loans are waived for loans made under the Program. The SBA's "credit elsewhere" test (i.e., the requirement that a small business is unable to obtain credit elsewhere) is also waived for these loans.
• Loans are required to be without recourse, must be unsecured, and cannot require a personal guarantee. 
• No yearly or guarantee fees for the loan, and all prepayment penalties are waived.
• The SBA clarified in the Interim Final Rule that the interest rate for a loan is 1%.
• The SBA clarified in the Interim Final Rule that loan payments are deferred for six months. Interest will continue to accrue during the deferment period.
• The SBA clarified in the Interim Final Rule that least 75% of the loan amounts must be used for payroll costs.
• The SBA clarified in the Interim Final Rule that loan maturity is 2 years.
• Because payroll costs only include employee cash compensation and partnership draws up to $100,000/year, businesses should take care not to use loan proceeds to pay any portion of these items in excess of $100,000. For example, if an employee earns $120,000/year, the employer may use loan proceeds to pay $100,000 on a pro rata basis of the employee’s salary, but must pay the remaining $20,000 on a pro rata basis using other funds. For purposes of loan forgiveness, this means a maximum of $15,385 per individual of loan proceeds may be used during the eight-week covered period.
• Please note that if PPP funds are used for unauthorized purposes, the SBA will direct businesses to repay those amounts. Knowingly misusing these funds may subject the business, shareholders, partners, and/or members to additional liability, such as fraud charges.

Loan Forgiveness

• Loans used for eligible expenses incurred during the 8-week period following the date of origination may be forgiven. In addition to payroll costs, eligible expenses include mortgage and other secured-debt interest payments, rent, and utilities, so long as those expenses existed as of February 15, 2020. For non-seasonal employers, the amount eligible for forgiveness is reduced by the following formulas:
  1. For reductions in employees, the maximum amount eligible for forgiveness, multiplied by:
     1. The average number of full-time equivalent employees ("FTEs") per month, calculated by the average number of FTEs for each pay period within a month, for the period between February 15, 2020, through June 30, 2020, divided by either, at the election of the employer:
        • The average number of FTEs per month employed from February 15, 2019, to June 30, 2019; or
        • The average number of FTEs per month employed from January 1, 2020, to February 29, 2020.
  2. For reductions in wages, the amount of any reduction in total salary or wages of any employee for the period between February 15, 2020, through June 30, 2020, that exceeds 25% of the employee's salary or wages during the employee's most recent full quarter of employment before the period before February 15, 2020.
• Employers who have terminated employees or reduced employee wages may be relieved from these forgiveness reduction penalties if they rehire employees or make up for wage reductions by June 30, 2020. Specifically, the above calculations to reduce amounts eligible for forgiveness will not apply if an employer either:
  1. Reduces its number of employees between February 15, 2020, and April 26, 2020, but subsequently "eliminated the reduction in the number of full-time equivalent employees"; or
  2. Conducts a salary reduction between February 15, 2020, and April 26, 2020, but subsequently raises salaries to pre-February 15, 2020, levels by June 30, 2020.
• Loan funds used to pay additional wages to tipped employees are also eligible for forgiveness. The Act is unclear if this includes tips and base wages or just base wages.
• Any forgiven amounts will not be considered taxable gross income.
• The SBA is required to issue regulations on the specifics of loan forgiveness (and deferment) under the Program within 30 days of the Act's enactment (i.e., by April 26, 2020).
• The SBA clarified in the Interim Final Rule that forgiveness for non-payroll costs (e.g. mortgage interest, utilities) is limited to 25% of the total amount forgivable.

Loan Process

• To obtain a loan under the Program, eligible businesses should apply through participating lenders offering SBA loans. In applying, the business must make good faith certifications that:
  1. The uncertainty of current economic conditions makes the loan necessary;
  2. Acknowledge the funds will be used for the allowable expenses (i.e., applicable payroll costs, mortgage, and other secured loan interest, rent, and utilities);
  3. The eligible business does not have a duplicate SBA loan application pending; and
  4. The eligible business has not received any duplicative loan amounts under the Program at any time after February 15, 2020, through the date on which the business obtains a loan through the Program.
• A business may not obtain multiple loans through the Program for the same purpose (i.e., loans that are duplicative of other loans received under the Program).
• Self-employed individuals, sole proprietors, and independent contractors applying for loans under the Program are required to provide certain documentation to prove eligibility, such as payroll tax filings, Forms 1099-MISC, and income and expenses from the sole proprietorship. Beyond the additional documentation requirements, the application process for these individuals is the same as for other businesses.

Expansion of SBA Disaster Loans

The Act also expands business access to economic injury disaster loans ("EIDL") through the SBA Economic Injury Disaster Loan Program. This expansion will be in effect between January 31, 2020, through December 31, 2020. These types of loans were previously available only for small business concerns, as defined by SBA, but are now temporarily available to business concerns with up to 500 employees.

Loan Eligibility

• Small business concerns, defined above; or
• Businesses with up to 500 employees.

Loan Details

• Unlike the Paycheck Protection Program, the Act does not provide for forgiveness of EIDLs.
• The amount available under an EIDL is based upon cash flow projections and demonstrated need, with a cap at $2,000,000.
• Loans may be used to pay expenses incurred in the ordinary course of business. Ordinary expenses include, but are not limited, to:
  1. Providing sick leave to employees unable to work because of the ongoing pandemic;
  2. Maintaining payroll;
  3. Meeting increased supply chain costs;
  4. Rent and mortgage payments; and
  5. Repaying debts that cannot be paid due to lost revenue.
• In general, existing rules applicable to the terms of EIDLs apply. However, two existing requirements are revised for EIDLs obtained through December 31, 2020. Specifically, for loans made during this period:
  1. Personal guarantees are not required for loans up to $200,000; and
  2. The SBA will not require that the business is unable to obtain credit elsewhere.
• Interest rates are subject to change, but currently set at 3.75%.
• Term lengths of EIDLs are either 15 or 30 years.

Loan Advance

• A business applying for an EIDL in response to COVID-19 may request an emergency advance from the SBA for up to $10,000. The advance must be paid by the SBA to the business within three days after receipt of the application.
• An advance received does not have to be repaid by the business, even if the SBA ultimately denies the business's application for an EIDL.

Direct Loans for Eligible Businesses

The Act also provides $500 billion for loans, loan guarantees, and investments in the Federal Reserve's lending facilities to support "eligible businesses" particularly distressed by the ongoing pandemic, which include air carriers and U.S. businesses that have not received "adequate economic relief" in the form of other loans or loan guarantees under the Act. Note that loans under this program are not generally available to businesses that may have been adversely affected by COVID-19. Rather, particular industries that are most affected (e.g., airlines) would be eligible. The $500 billion is allocated as follows: $25 billion in loans and loan guarantees for air carriers; $4 billion in loans and loan guarantees for cargo air carriers; $17 billion in loans and loan guarantees for businesses critical to maintaining national security; and $454 billion for loans, loan guarantees, and investments in support of facilities established by the Federal Reserve.

Loan Eligibility

The business must:

• Be created or organized in the U.S.; and
• Have significant operations in and a majority of its employees based in the U.S.

Loan Details

• The loan must be entered into directly by the eligible business as the borrower and cannot be forgiven.
• The interest rate of the loan must be based on the risk and the current average yield on outstanding marketable obligations of the United States of comparable maturity.
• Any business receiving a direct loan is prohibited for 12 months after the term of the loan, from:
  1. For any officer or employee whose total compensation exceeded $425,000 in calendar year 2019, providing:
     1. Compensation to such individual over such amount over any consecutive 12 months during the covered period; or
     2. Severance benefits exceeding more than two times such 2019 compensation amount.
  2. For any officer or employee whose total compensation exceeded $3,000,000 in calendar year 2019, providing compensation that exceeds the sum of:
     1. $3,000,000, plus
     2. 50% of the amount in excess over $3,000,000 that the officer or employee received in calendar year 2019.
• Air Carriers and related contractors (e.g., persons that perform catering functions or other functions at an airport directly related to the air transportation of persons, property, or mail) are subject to the same executive compensation limits outlined above, except that the limits apply to the two-year period ending on March 24, 2022, rather than the 12 months following the term of the loan.
• Businesses that receive a loan may not conduct a stock buyback beyond the term of the loan, and must maintain at least 90% of its employment levels as of March 24, 2020, until September 30, 2020.

Mid-Size Direct Lending Program (Pending)

The Act also directs the Treasury Secretary to create a program to provide financing to banks and other lenders who make direct loans to mid-size businesses. Additional guidance on this program will be issued by the Treasury Secretary, including guidance that may permit receiving warrants, stock options, common or preferred stock or other equity under the program without triggering an ownership change under Section 382 of the Internal Revenue Code of 1986 (i.e., allowing more favorable treatment and flexibility regarding net operating loss carryforwards).

Loan Eligibility

The business:

• Have between 500 to 10,000 employees;
• Be created or organized in the U.S.; and
• Have significant operations in and a majority of its employees based in the U.S.

Loan Details

• Loans made under the to-be created program are capped at a 2% (annualized) interest rate. During the first 6 months after a direct loan is made, or for such period set by the Treasury Secretary, no principal or interest will be due and payable.
• Loans may be used for employee retention purposes, and funds must be used to retain at least 90 percent of the business's workforce, at full compensation and benefits, until September 30, 2020.

Loan Process

• To apply for a loan under this program, an eligible business must make a good faith certification that:
  1. The uncertainty of economic conditions makes the loan necessary to support the ongoing operations;
  2. The funds received will be used to retain at least 90 percent of the business's workforce, at full compensation and benefits, until September 30, 2020;
  3. The business intends to restore not less than 90 percent of the workforce of the business that existed as of February 1, 2020, and to restore all compensation and benefits to the workers of the business no later than 4 months after the termination of the public health emergency declared on January 31, 2020;
  4. The business is domiciled in the United States with significant operations and employees located in the United States;
  5. The business is not a debtor in a bankruptcy proceeding;
  6. The business is created or organized in the United States or under the laws of the United States;
  7. The business will not pay dividends with respect to the common stock of the eligible business, or repurchase an equity security that is listed on a national securities exchange of the business while the direct loan is outstanding, except to the extent required under a contractual obligation that is in effect as of the date of the Act's enaction;
  8. The business will not outsource or offshore jobs for the term of the loan and 2 years after completing repayment of the loan;
  9. The business will not do away with existing collective bargaining agreements for the term of the loan and 2 years after completing repayment of the loan; and
  10. The business will remain neutral in any union organizing effort for the term of the loan.

Main Street Lending Program

On April 9, 2020, the Federal Reserve announced preliminary details of the Main Street Lending Program, a lending program established pursuant to Section 4003(C)(3)(d)(ii) of the CARES Act, which permits the Federal Reserve to make programs aimed at providing financing to small and mid-sized businesses affected by the COVID-19 pandemic. This program offers potential relief for businesses too large to take advantage of the Paycheck Protection Program ("PPP") (which is an SBA-based lending program for small companies). More details about this program can be found at: CARES Act: The Main Street Lending Program Offers Relief for Small and Mid-Sized Businesses.

Tax Credits

Employee Retention Tax Credits

The Act creates a tax credit each quarter to offset 50% of each employee's qualifying wages, including qualifying health care plan costs, on up to $10,000 of wages paid per employee (i.e., up to $5,000 in actual credit per employee). This employee retention tax credit is available for wages incurred from March 12, 2020 – December 31, 2020, but is unavailable for paid sick leave or expanded FMLA wages paid under the Families First Coronavirus Response Act (FFCRA). Notably, this credit is in addition to the payroll tax created under the FFCRA.

Employer Eligibility

• The credit is available to employers, who do not receive a loan under the Paycheck Protection Program discussed above, whose (1) operations were shut-down or partially suspended due to a COVID-19 related shut down order, or (2) gross receipts fell more than 50% when compared to the same quarter in the previous year.
• For employers eligible for the credit due to a decline in gross receipts, eligibility ends with the calendar quarter in which the gross receipts exceed 80 percent of the calendar quarter in the previous year.
• Private employers of all sizes may apply for the credit; however, employers with more than 100 full-time employees, may only receive the tax credit for employee wages where the employee was not providing services due to one of the reasons listed above. Employers with 100 or fewer employees qualify for the credit, regardless of whether the business is shut down pursuant to a shut-down order.

Claiming Credit

• The tax credit only offsets employment taxes owed by an employer. To the extent 50% of the qualifying wages exceed the employer's employment tax liability, the employer will be refunded the difference. The Treasury Secretary is expected to issue further guidance, forms, and regulations for these tax credits, including provisions allowing businesses to receive advance payment of the credit.
• The CARES Act also facilitates reimbursement for employee wages paid pursuant to the Families First Coronavirus Response Act ("FFCRA").
• Employers can claim the credit each quarter they are eligible through December 31, 2020.

Delay of Payment of Employer Payroll Taxes

To provide further assistance to employers, the CARES Act authorizes deferral of 2020 payroll taxes to 2021 and 2022. Half of the deferred 2020 employment taxes must be paid by December 31, 2021. Any remaining amount owed for 2020 employment taxes is due to the IRS by December 31, 2022. Like the employee retention tax credits, this deferral is unavailable to employers who receive a small business "paycheck protection" loan. Note, there is also no provision in the Act that the IRS "trust fund recovery penalty" (which is equal to 100% of unpaid employment taxes) is being altered in any way. This penalty may be assessed against any person (including officers, employees, members, and directors) who is responsible for managing and paying employment taxes on behalf of the employer and who willfully fails to collect or pay such taxes. Accordingly, if a business is unable to pay the deferred taxes after the deferral period (e.g., due to insolvency and bankruptcy), key officers and employees may remain liable for payroll taxes.

Net Operating Losses

The Act also suspends certain deduction limits previously imposed by the Tax Cuts and Jobs Act (TCJA), including:

• Allowing Net Operating Losses (NOLs)—which occur when a businesses's allowable deductions exceed its taxable income within a tax period—arising in 2018, 2019, and 2020 to be carried back for up to five years (under the TCJA, no carrybacks were permitted);
• Suspending the TCJA's 80 percent cap on NOL carryovers for three years (cap would not apply to taxable years beginning in 2018, 2019, and 2020); and
• Suspending certain rules relevant to farming losses for NOLs arising in taxable years beginning in 2018, 2019, and 2020.

Additional Provisions

The Act includes a number of additional provisions for the benefit of unemployed workers, financial institutions, community banks, the health care industry (including medical device companies), and borrowers of federally backed mortgage loans. For more information about these and other provisions, reach out to Maslon's Corporate & Securities Group.

We Can Help

Please contact Maslon's Corporate & Securities Group and Labor & Employment Group if you have questions or need assistance taking advantage of the relief provided under the CARES Act.

The process related to Paycheck Protection Program ("PPP") loans under the CARES Act is moving quickly. Lenders may begin processing PPP loans as early as Friday, April 3, 2020, but it's unlikely all lenders will be ready to process and/or fund loans by this time. Although PPP loans will be available through June 30, 2020, eligible businesses should apply as soon as possible given concerns that the allocated funds may not cover demand. Funds will be given on a first come, first serve basis.

On April 2, the U.S. Small Business Administration ("SBA") published its Interim Final Rule, which provides guidance on the implementation of the PPP, including a helpful Q&A section. Comments on the Interim Final Rule will be accepted through the Federal eRulemaking Portal for 30 days after date of publication of the Interim Final Rule in the Federal Register. The SBA will provide further guidance through SBA notices and a program guide, which will be posted to the SBA’s website. While full details about the PPP are still forthcoming, current guidance provides the following information:

Proactive Steps to Apply

Eligible businesses can apply through existing SBA Section 7(a) loan program lenders or through any participating federally insured depository institution, federally insured credit union, and Farm Credit System institution. Additional lenders will be able to make PPP loans once approved and enrolled in the PPP. It is anticipated that lenders will provide their specific application process information once available, which may be as soon as Friday, April 3, 2020.

Register to Submit Application

If a business believes it may be eligible for a PPP loan, it should connect as soon as possible with a PPP lender to get registered. Applications for a PPP loan will be specific to each lender, and you should obtain the proper forms from your lender. While businesses cannot yet apply, businesses may be able to "get a spot in line" to submit applications by reaching out to lenders now.

Assemble Potentially Required Application Documentation

While PPP loan application processes will be specific to each lender, the SBA has issued a sample application form to assist businesses in preparing for the lender's application. Based on the sample application form provided and traditional SBA loan rules, we suggest you assemble the following documentation to get a head start, keeping in mind that actual document requirements may vary across lenders. If you have an existing relationship with an SBA-approved lender, consider reaching out to that lender first for a PPP loan, as the lender likely already has on file potentially required documentation, which may speed up the application process.

• Traditional SBA Loan Documentation Requirements:
  • Articles or Certificate of Incorporation/Organization for each borrower;
  • Bylaws/Operating/Member Control Agreement for each borrower; and
  • Driver's licenses for all owners.
• Payroll Expense Verification Documents:
  • IRS Form 941 Employers Quarterly Tax Return and Form 944 Employers Annual Tax Return (if filed);
  • Payroll summary report form provided with corresponding bank statements or employee paystubs as of February 15, 2020 (or corresponding period) with corresponding bank statements;
  • 1099s for independent contractors;
  • Statement that all employees are United States residents or detailed list of employees outside the United States with their salaries (whose wages must be excluded); and
  • Profit and loss statement for the prior 12 months.
• Most recent mortgage statement or rent invoice and lease.
• Documentation of the average monthly payroll based on the 12 months between April 2019 to March 2020, reduced for payroll individuals that exceed $100,000 on an annualized basis (i.e., average payroll, capped at $100,000 (annualized) per employee).
  • Average payroll should be separated by category: Salary, Hourly, Commissions, Vacation, Sick Leave, Group Health Care (both union / non-union), and Retirement Contributions (both union / non-union).
• Total monthly rent (or mortgage interest) over the prior 12 months.
• Total amount spent on utilities over the prior 12 months (Electricity, Gas, Water, Transportation, Telephone, and Internet, etc.).
• Total interest on other debt obligations incurred before February 15, 2020.
• Entity's tax EIN and full legal name (you can find this on your tax return).
• Personal financial statements may be requested for all owners.

Potential Disqualifiers

Based on questions borrowers must answer on the SBA sample application form, the following factors may disqualify certain businesses from PPP loans. As more information is made available, we will clarify this list:

• If the business or any of its owners are presently involved in any bankruptcy;
• If the business or any of its owners are presently suspended, debarred, proposed for debarment, declared ineligible, or are voluntarily excluded from participation in the PPP by a federal department or agency;
• If the business or any of its owners, or any business owned or controlled by any of them, have ever taken a loan from the SBA or any other federal agency that is currently delinquent or that has defaulted in the last seven years and caused a loss to the government;
• If any 20% or more owner of the business is currently subject to an indictment, criminal information, arraignment, or any other means by which formal criminal charges are brought in any jurisdiction;
• If any 20% or more owner of the business is currently incarcerated, on probation, or on parole; and
• If any 20% or more owner of the business has, within the last seven years, pleaded guilty to, pleaded nolo contendere, been placed on pretrial diversion, been placed on any form of parole or probation, or been convicted of any felony or misdemeanor against a minor.

We Can Help

Please contact Maslon's Corporate & Securities Group if you have questions or need assistance applying for a PPP loan.

• Previously, borrowers could only use the 8-week period after receiving the loan (the "Covered Period") to calculate forgiveness for the loan. Now, borrowers with a bi-weekly (or more frequent) payroll cycle (i.e., paying employees every other week or more frequently) may choose to calculate forgiveness only for amounts spent on payroll using the 8-week period beginning on the first day of the first payroll cycle. Forgiveness of loan amounts spent on non-payroll costs, however, can only be calculated using the initial "Covered Period" (8 weeks after receiving the loan).
• The Rule also clarified several points left open by the CARES Act and other guidance from the SBA:
  • Payroll costs incurred but not paid during the borrower's last payroll cycle are eligible for forgiveness if paid on or before the next regular payroll date (regardless of which 8 week period is used to calculate forgiveness).
    • Payroll costs are generally incurred on the day the employee's pay is earned (i.e., on the day the employee worked).
    • Payroll costs include hazard pay, bonuses, and compensation for furloughed employees, in addition to other compensation to employees (e.g., salary, wages, commissions, etc.).
  • Similarly, non-payroll costs incurred but not paid during the 8 weeks after receiving the loan are forgivable if paid on or before the next regular billing cycle, even if that date is after such 8-week period.
  • An FTE is defined as an employee who works 40 hours or more, on average, each week.
    • A single employee cannot count as more than 1.0 FTE (e.g., if the employee works an average of 45 hours per week they are still a 1.0 FTE).
    • A borrower has two choices for calculating how part-time employees count towards its average number of FTEs. The borrower may either:
      • Calculate the average number of hours for which the part-time employee was paid per week during the 8-week period being used to calculate forgiveness (so, for example, if an employee was paid for an average of 10 hours per week, that employee would be a 0.25 FTE (10 hours/week divided by 40)); or
      • Elect to use an FTE of 0.5 for each part-time employee.
  • For reductions in forgiveness based upon salary or wage reductions, the amount of forgiveness will only be reduced if not attributable to an FTE reduction. That is, if the borrower ends up paying an employee less because they had to cut the employee's hours, the company could still count the amounts paid to such employee for forgiveness (but forgiveness will be reduced because of the effect this has on the borrower's FTE levels). However, the forgivable amount will be reduced if the employee's compensation rate decreased but they still had to work the same amount of hours (e.g., reducing someone's hourly rate but still keeping their same hours).
  • The amount of loan forgiveness for owner-employees and self-employed individuals' payroll compensation is capped at the lesser of 8/52 of 2019 compensation (approximately 15.38% of 2019 compensation) or $15,385 per individual in total across all businesses (because the maximum compensation eligible for PPP loan use is up to $100,000 per-person, per-year). It is unclear at this time what is meant by "owner-employees," but it likely means S-Corp shareholders that are also employees of the company. General partners are also capped by the amount of their 2019 net earnings from self-employment (reduced by claimed section 179 expense deduction, unreimbursed partnership expenses, and depletion from oil and gas properties) multiplied by 0.9235.
• Forgiveness will not be reduced if an employee:
  • Is fired for cause;
  • Voluntarily resigns; or
  • Voluntarily requests a reduced schedule during the applicable 8-week covered period.
• The borrower may exclude any reduction in total FTE headcount attributable to a single employee if:
  • the borrower made a good faith, written offer to rehire the employee (or, if applicable, restore the reduced hours of the employee) during the covered 8 weeks;
  • the offer was made on the same terms (e.g., wages and hours) the employee had in the last pay period prior to the separation or hours reduction;
  • the offer was rejected by the employee;
  • the borrower has maintained records documenting the offer and its rejection; and
  • the borrower informed the applicable state unemployment insurance office of the employee's rejected offer or re-employment within 30 days of the employee's rejection.
• For the "Re-Hire Exemption" (outlined below), the Rule still did not definitively state whether a 100% of a company's workforce has to be rehired or whether 100% of wages have to be restored to pre-loan levels. However, the SBA's loan forgiveness application states the borrower is required to restore "its FTE employee levels by not later than June 30, 2020 to its FTE employee levels in the [b]orrower's pay period that included February 15, 2020." This likely means that (at least with respect to re-hiring), 100% of the workforce that was terminated/furloughed needs to be re-hired by June 30th (subject to the exception above regarding employees who reject the offer to return).
• Other than these clarifications, the majority of the rules for the loan forgiveness process remain the same. For instance, 75% of the loan proceeds must be used for payroll costs (for such amounts to be forgiven), eligible expenses remain the same, and there has been no change to the formula for calculating any reductions to loan forgiveness.

Pursuant to the CARES Act (the "Act"), up to 100% of a PPP loan may be forgiven if loan proceeds are used for specified eligible expenses during the Covered Period, or, as an alternative for payroll costs, the 8-week period beginning the first day of the first payroll cycle in the Covered Period (the "Alternative Payroll Covered Period"). Important considerations to maximize loan forgiveness are outlined in this legal alert.

This legal alert does not address additional considerations for borrowers who are independent contractors, sole proprietors, or self-employed individuals.

Loan Forgiveness Requirements under the PPP

• Loans under the PPP are eligible for forgiveness to the extent the proceeds are used to pay the eligible expenses incurred during the Covered Period, which are payroll costs, interest on secured debt, rent, and utilities. The amount of loan forgiveness is only for that portion of the loan used to pay such expenses, which can be up to the full loan amount (including principal and interest).
• The SBA requires that at least 75% of the loan proceeds used on eligible expenses be used for payroll costs for those loan proceeds to be eligible for forgiveness.
• For the purposes of federal income tax, amounts forgiven are not considered gross income of the borrower. However, borrowers should note that each state will determine whether forgiven amounts will be considered income for state income tax purposes.

Eligible Expenses

More specifically, expenses eligible for forgiveness are:

• Payroll costs
  • Proceeds used to pay compensation to employees:
    • Salary, wages, commissions, or similar compensation (including the employee's share of federal payroll taxes);
    • Payment of cash tip or equivalent;
    • Payment for vacation, parental, family, medical, or sick leave;
    • Allowance for dismissal or separation;
    • Payment required for the provision of group health care benefits, including insurance premiums;
    • Payment of any retirement benefits; and
    • Payment of state or local tax assessed on the compensation of employees.
  • Payroll costs do not include:
    • The sum of payments of any cash compensation of an individual employee, including severance payments, in excess of $100,000, as prorated for the period between February 15, 2020, through June 30, 2020 (put otherwise, employees who make more than $100,000 of cash compensation are capped at $100,000 for the purpose of calculating payroll costs);
    • The borrower's share of federal payroll taxes;
    • Qualified sick leave or family leave wages for which credit is allowed under the Families First Coronavirus Response Act (which provides for, among other things, 14-day paid leave for American workers affected by the pandemic); or
    • Payments made to independent contractors.
• Mortgage Interest (Real Estate & Other Secured Credit)
  • Proceeds used to pay interest on a mortgage loan are eligible for forgiveness if the mortgage:
    • Was first incurred prior to February 15, 2020.
    • Is on real or personal property (i.e., the statute seems to cover interest on secured credit lines, etc., even if they are secured by something other than real estate, provided the other requirements are met); and
    • Is the borrower's liability;
    • However, to be forgivable, loan proceeds may not be used to prepay or make principal payments on the mortgage obligation.
• Rent
  • Proceeds used to pay for rent owed under a lease agreement in force prior to February 15, 2020, are eligible for forgiveness.
• Utilities
  • Proceeds used to pay for electricity, gas, water, transportation, telephone, or internet access ("Covered Utility Payments") are eligible for forgiveness, so long as service began prior to February 15, 2020.

Reduction of Amounts Forgivable

• The amount eligible for forgiveness will be reduced if the borrower, during the Covered Period:
  • Reduces the number of full-time equivalent employees ("FTEs"); or
  • Reduces an employee's salary or wages by more than 25% compared to what the employee earned during the most recent full quarter during which the employee was employed before the Covered Period. Note that this applies to any employee who did not receive wages or salary of more than $100,000 annualized during any single pay period during 2019.
• For non-seasonal borrowers, the reduction in the amount that can be forgiven due to a reduction of FTEs is calculated as:
  • Amounts used for eligible expenses, multiplied by:
    • The average number of FTEs per month employed by the borrower during the Covered Period, divided by, at the borrower's election, either:
      • The average number of FTEs employed per month during the period between February 15, 2019, through June 30, 2019; or
      • The average number of FTEs employed per month during the period between January 1, 2020, through February 29, 2020.
• For the purposes of forgiveness, the average number of FTEs is determined by calculating the average number of FTEs employed during each pay period falling within a month. Put otherwise, borrowers should find the average FTEs per pay period in a given month, do that for each month, and then find the average of the monthly numbers.

Re-Hire Exemption

• If the borrower reduced the number of FTEs or salaries and wages paid to any employees during the period between February 15, 2020, and April 26, 2020, thereby reducing the loan proceeds eligible for forgiveness, such proceeds become re-eligible for forgiveness if:
  • The borrower eliminates the reduction in the number of FTEs by June 30, 2020; or
  • The borrower eliminates the reduction in salary or wages of employees by June 30, 2020.
• A plain reading of the Act indicates a 100% elimination of the reduction of FTEs or employee salary or wages is required to make loan proceeds re-eligible for forgiveness. However, the Act gives the SBA discretion to issue regulations granting minor exceptions to this 100% elimination requirement, and we are hopeful the SBA will do so. Maslon will update this legal alert as additional guidance becomes available on this key issue.

Application for Forgiveness

• To seek loan forgiveness, borrowers will "apply" to the lender originating the loan, by submitting the SBA's loan forgiveness application (SBA Form 3508 or a lender equivalent). Documents that all lenders will require from borrowers include:
  • Payroll tax filings reported to the Internal Revenue Service (for the 8-week covered period);
  • State income, payroll, and unemployment insurance filings (for the prior-year baseline period);
  • Evidence of the payment of eligible expenses, including cancelled checks, payment receipts, transcripts of accounts, or other documents verifying payments on eligible mortgage interest payments, rent obligations, and utility payments;
  • Certifications that: (i) the documentation provided is true and correct; and (ii) the amount for which forgiveness is being requested was used to retain employees, make interest payments on eligible mortgage interest, rent, or utilities; and
  • Any other documentation the SBA deems necessary.
• The lender is required to issue a decision within 60 days after receiving an application for forgiveness.

What If A Loan Isn't Forgiven?

Loan portions that are not forgiven have a term of 2 years and an interest rate of 1%. There is no pre-payment penalty.

Proactive Steps To Take

Borrowers can take the following steps to maximize their chances of loan forgiveness:

• Properly document fund use and allocation. This includes keeping track of cancelled checks, payment receipts, and transcripts of accounts.
• Consider separating PPP loan proceeds from other funds (i.e., in a different bank account) and putting other accounting controls in place (such as keeping a separate ledger for loan proceeds). Many SBA lenders are requiring borrowers to take similar actions.
• If there has been any reduction in FTEs or employee salaries or wages, begin strategizing now to try and ensure a full elimination of the reduction by June 30, 2020 (if feasible, understanding that your business circumstance may not allow for this).
• Work with your accountant to calculate your total eligible expenses in the Covered Period or Alternative Covered Period. After the proceeds hit your bank account, spend as much as you can on eligible expenses, but not more than 25% of your anticipated forgivable amount on non-payroll expenses.

We Can Help

Please contact Maslon's Corporate & Securities Group if you have questions or need assistance taking advantage of loan forgiveness afforded by the Paycheck Protection Program.

The Main Street Lending Program is distinct from the yet-to-be created "Mid-Size Direct Lending Program," which is expected to provide financing to banks and other lenders who make direct loans to businesses with between 500 to 10,000 employees. Preliminary details on the Mid-Size Direct Lending Program are available at: Maslon Legal Alert: COVID-19 - Key Business Resources Under the CARES Act. It is unclear at this time whether a business may receive a loan under both the Main Street Lending Program and the Mid-Size Direct Lending Program.

The summary below provides our current understanding of the Main Street Lending Program, the terms and conditions of which may be—and likely will be—adjusted. Because many lenders are still processing PPP loan applications, additional guidance on the Main Street Lending Program (such as when and how businesses can apply) may be slow. This summary reflects current guidance released by the Federal Reserve on April 9, 2020, and will be updated as more details are made available.

Loan Overview

Under the program, eligible businesses (as defined below) can apply for either a Main Street New Loan Facility ("MSNLF") loan or Main Street Expanded Loan Facility ("MSELF") loan from eligible lenders, which are U.S. insured depository institutions, U.S. bank holding companies, and U.S. savings and loan holding companies. MSNLF loans are new, unsecured term loans that originate on or after April 8, 2020. MSELF loans increase the size of existing loans (originated prior to April 8, 2020) to businesses. Businesses may participate in either the MSNLF or the MSELF, but not both. Lenders can sell up to 95% of each loan to a Special Purpose Vehicle ("SPV") (with lenders retaining 5% of the loan). The Federal Reserve will purchase up to $600 billion in MSNLF and MSELF loans. The SPV will stop purchasing loans on September 30, 2020, unless the MSNLF and MSELF are extended.

Loan Eligibility

To be eligible under either the MSNLF or MSELF, businesses must:

• Be in "good financial standing" before the crisis. It is unclear how this will be evaluated, but commentators speculate it will likely be left up to lenders given that they will retain 5% of the loan.
• Have 10,000 (or fewer) employees or less than $2.5 billion in 2019 annual revenues.
• Be created in the United States with significant U.S.- based employees and operations.
• Only participate in one of the following: (i) MSNLF; (ii) MSELF; or (iii) the Primary Market Corporate Credit Facility, which the Federal Reserve established on March 23, 2020, in response to the COVID-19 pandemic to support credit to employers through new bond and loan issuance.

It is unclear whether a business will be considered together with its affiliates for purposes of determining program eligibility. Guidance is expected, but it is unclear when.

Loan Details

Although MSNLF and MSELF loans contain many similar features, they operate differently, and for purposes of clarity are discussed separately below:

MSNLF

A MSNLF loan is an unsecured term loan originating on or after April 8, 2020, with the following features:

• 4-year maturity
• Unsecured
• Principal and interest payments will be deferred for one year from origination date
• An interest rate equal to the Secured Overnight Financing Rate ("SOFR") in effect on the date the loan is made (which is published each business day by the New York Federal Reserve), plus 250-400 basis points. It is unclear whether the Federal Reserve or individual lenders will determine the rate above basis.
• Loan to each business will be at least $1 million, but is capped at the lesser of (i) $25 million or (ii) an amount that, when added to the business's existing outstanding and committed but undrawn debt, does not exceed four times the business's 2019 earnings before interest, taxes, depreciation, and amortization ("EBITDA")
• Pre-payment is permitted without penalty
• Required attestations (detailed below)

MSELF

A MSELF loan is an existing term loan issued by an eligible lender to an eligible business that originated before April 8, 2020. Put otherwise, the MSELF permits eligible lenders to expand on loans previously issued to eligible businesses, provided that the upsized tranche of the loan has the features detailed below. It is unclear at this time whether any loan previously issued by an eligible lender to an eligible business may be expanded under the MSELF, or if additional restrictions are forthcoming.

• 4-year maturity
• May be secured or unsecured:
  • Any collateral securing a loan, whether the collateral was pledged under the original terms of the loan or at the time of upsizing, will secure the loan participation on a pro rata basis
• Principal and interest payments will be deferred for one year from origination
• Adjustable rate of SOFR + 250-400 basis points
• Loan to each business will be at least $1 million, but is capped at the lesser of (i) $150 million; (ii) 30% of the business's existing outstanding and committed but undrawn bank debt; or (iii) an amount that, when added to the business's existing outstanding and committed but undrawn debt, does not exceed six times the business's 2019 EBITDA (Please note: This differs from MSNLF loans, which only requires four times the business's 2019 EBITDA.)
• Pre-payment is permitted without penalty
• Required attestations (detailed below), that apply with respect to the upsized tranche of each eligible loan (not the pre-existing portion of the loan)

Loan Proceed Uses

It is unclear at this time exactly how businesses may use loan proceeds under the Main Street Lending Program. However, we do know that at a minimum, businesses must use proceeds to make "reasonable efforts" to maintain payroll and retain its employees during the term of the loan.

Loan proceeds cannot be used for the following:

• To repay or refinance pre-existing loans or lines of credit made by the lender to the business. In the context of MSELF loans, this includes using the proceeds of the upsized tranche of the MSELF loan to repay or refinance the pre-existing portion of the MSELF loan.
• To repay other loan balances; or repay debt of equal or lower priority, with the exception of mandatory principal payments, unless the business has first repaid the MSNLF or MSELF loan in full.

Loan Restrictions

Businesses receiving a loan under the program must comply with the following stock repurchase, capital distribution, and compensation restrictions that apply to direct loan programs under section 4003(c)(3)(A)(ii) of the CARES Act:

• Stock Repurchase: While the loan is outstanding and for 12 months thereafter, businesses cannot repurchase an equity security that is listed on a national securities exchange of the business or any parent company of the business (unless there is a contractual obligation to do so that predates March 27, 2020).
• Capital Distribution: Until the date 12 months after the date on which the loan is no longer outstanding, business are prohibited from paying dividends or making other capital distributions with respect to the common stock of the business.
• Compensation: Any business receiving a loan is prohibited for 12 months after the term of the loan, from:
  1. For any officer or employee whose total compensation exceeded $425,000 in calendar year 2019, providing:
     1. Compensation to such individual over such amount over any consecutive 12 months during the covered period; or
     2. Severance benefits exceeding more than two times such 2019 compensation amount.
  2. For any officer or employee whose total compensation exceeded $3,000,000 in calendar year 2019, providing compensation that exceeds the sum of:
     1. $3,000,000, plus
     2. 50% of the amount in excess over $3,000,000 that the officer or employee received in calendar year 2019.

Loan Process

The specific loan application process will be left to lenders and is not yet available. However, all applicants will be required to meet (at a minimum) the following requirements:

Fees

• Origination Fee: For MSNLF loans, businesses will pay the lender an origination fee of 100 basis points of the principal amount of the loan. Similarly, for MSELF loans, businesses will pay the lender a fee of 100 basis points of the principal amount of the upsized tranche of the loan at the time of upsizing.
• Facility Fee: For MSNLF loans, lenders may choose to require businesses to pay the "facility fee" that lenders are required to pay to the SPV, which is equal to 100 basis points of the principal amount of the loan participation purchased by the SPV.

Attestations

In addition to certifications required by applicable statutes and regulations, businesses must make the following attestations when applying for either a MSNLF or MSELF loan:

1. Attest to the loan proceed use restrictions discussed above pertaining to repaying or refinancing pre-existing loans or lines of credit, and paying down other debt.
2. Attest that it will not seek to cancel or reduce any of its outstanding lines of credit with the lender providing the loan or any other lender.
3. Attest that it requires financing due to the exigent circumstances presented by the COVID-19 pandemic, and that, using the proceeds of the MSNLF loan (or proceeds of the upsized tranche of the MSELF loan), it will make reasonable efforts to maintain its payroll and retain its employees during the loan term.
4. Attest it meets the EBITDA leverage condition stated above (i.e, the loan size does not exceed an amount that, when added to the business's existing outstanding and committed but undrawn debt, does not exceed 4x the business's 2019 EBITDA in the case of a MSNLF loan, or 6x the business's 2019 EBITDA in the case of a MSELF loan).
5. Attest that it will follow compensation, stock repurchase, and capital distribution restrictions that apply to direct loan programs under section 4003(c)(3)(A)(ii) of the CARES Act.
6. Certify that the entity is eligible to participate in the MSNLF or MSELF, as applicable, including in light of the conflicts of interest prohibition in Section 4019(b) of the CARES Act, which prohibits business from receiving funds if they are directly or indirectly owned by the President, certain executive branch officials, or members of Congress.

We Can Help

Please contact Maslon's Corporate & Securities Group if you have questions regarding the Main Street Lending Program.

To receive future COVID-19-related legal alerts, please email us.

TOPICS:

• Most Recent
• Corporate
• Mergers & Acquisitions
• Labor & Employment
• Product Liability Litigation
• Construction
• Insurance Coverage
• Cybersecurity
• Estate Planning
• Supporting the Effort
   

Most Recent:

• January 14, 2022 — Supreme Court Halts OSHA's COVID-19 Vaccine and Testing Mandate
• December 20, 2021 — OSHA's COVID-19 Vaccine and Testing Mandate Is Back in Business After Sixth Circuit Court of Appeals Lifts Stay
• November 8, 2021  — Fifth Circuit Court of Appeals Stays OSHA's COVID-19 Vaccine and Testing Mandate: Next Steps for Employers
• November 5, 2021 — What Employers Need to Know About OSHA's New Vaccine and Testing Requirements
• November 1, 2021 — 5 New Legal Risks for Product Manufacturers During COVID-19
• September 10, 2021 — Path Out of the Pandemic: Biden Administration Will Require Employers with 100+ Employees to Mandate COVID-19 Vaccination or Weekly Testing
• August 24, 2021 — Updated COVID-19 Guidance from OSHA and the CDC: What It Means for Your Business

Corporate:

• February 16, 2022 — Can You Spot a Liar? Key Factors for Determining Credibility in Internal Investigations
• January 8, 2021 — New SBA Guidance Released: Interim Final Rules on the Revived Paycheck Protection Program
• December 28, 2020 — Coronavirus Relief Under the Consolidated Appropriations Act, 2021
• June 5, 2020 — CARES Act PPP Reform: Paycheck Protection Program Flexibility Act of 2020
• April 27, 2020 — New SBA Guidance Released: PPP Loan Certification Requirements for Good Faith
• April 16, 2020 — CARES Act: Paycheck Protection Program Loan Forgiveness
• April 10, 2020 — CARES Act: The Main Street Lending Program Offers Relief for Small and Mid-Sized Businesses
• April 2, 2020 — CARES Act: Paycheck Protection Program - Proactive Steps to Apply
• March 30, 2020 — COVID-19: Key Business Resources Under the CARES Act
• March 26, 2020 — COVID-19: Key Business Considerations for Minnesota Emergency Executive Order 20-20
• March 20, 2020 — COVID-19 Business Update: Tax Deadline and Proposed CARES Act
• March 16, 2020 — COVID-19: Force Majeure Contract Clauses
   

Mergers & Acquisitions:

• April 18, 2020 — Video: COVID-19 Business Owner's Survival Guide—M&A After COVID-19 (29:00), Presented by Terri Krivosha
   

Labor & Employment:

• February 16, 2022 — Can You Spot a Liar? Key Factors for Determining Credibility in Internal Investigations
• January 14, 2022 — Supreme Court Halts OSHA's COVID-19 Vaccine and Testing Mandate
• December 20, 2021 — OSHA's COVID-19 Vaccine and Testing Mandate Is Back in Business After Sixth Circuit Court of Appeals Lifts Stay
• November 8, 2021  — Fifth Circuit Court of Appeals Stays OSHA's COVID-19 Vaccine and Testing Mandate: Next Steps for Employers
• November 5, 2021 — What Employers Need to Know About OSHA's New Vaccine and Testing Requirements
• November 1, 2021 — 5 New Legal Risks for Product Manufacturers During COVID-19
• September 10, 2021 — Path Out of the Pandemic: Biden Administration Will Require Employers with 100+ Employees to Mandate COVID-19 Vaccination or Weekly Testing
• August 24, 2021 — Updated COVID-19 Guidance from OSHA and the CDC: What It Means for Your Business
• May 24, 2021 — What Employers Need to Know Now That the CDC Has Relaxed Mask Recommendations for Those Who Are Fully Vaccinated
• March 24, 2021 — The American Rescue Plan Act of 2021—Key Implications for Employers
• December 30, 2020 — New Year, New Rules: Employer Implications of the New COVID-19 Relief Legislation
• December 22, 2020 — Employers: EEOC Releases New Vaccine Guidelines to Address Five Key Concerns
• September 14, 2020 — FFCRA Update: Department of Labor Revises Regulations, Largely Rejects SDNY Court Ruling
• August 5, 2020 — Key FFCRA Regulations Vacated by Federal Court, Dramatically Expand FFCRA Leave Eligibility
• July 24, 2020 — #MaskUpMN: Key Employer Re

“…I was looking for opportunities to get Maslon’s transactional attorneys more involved in pro bono,” Rosenbaum shared regarding his initial engagement. “LegalCORPS…allows business lawyers to use our special skills and expertise. As I have served LegalCORPS clients and interacted with our partner agencies, I have seen the value of providing access to business law advice that can strengthen our underserved communities in Minnesota.”

To read the full article, go to: LegalCORPS Honors Marty Rosenbaum.

Marty has more than 35 years' experience advising public and privately held companies on securities and corporate matters. His practice is concentrated in securities and corporate finance, including public offerings, private placements, venture capital financings, and mergers and acquisitions involving public and private companies. Marty regularly advises public companies of all sizes regarding preparation of public reports and proxy statements, public disclosures, insider trading, securities regulatory compliance, corporate governance matters, executive compensation, and stock plan issues. From 2007-2019, he has been named a "Notable Practitioner" in Corporate/M&A by Chambers USA.

LegalCORPS provides free assistance in non-litigation business law matters to low-income owners of small businesses, small nonprofit organizations and low-income innovators in Minnesota—through the services of volunteer attorneys. As a non-profit organization, its mission is to expand access to the legal system—in the area of business law—to many who otherwise would be left out.

Ajouri assists organizations and individuals with general commercial litigation matters, with particular focus on intellectual property disputes. Ajouri received his law degree, summa cum laude, from Mitchell Hamline School of Law. While at law school, he completed more than 150 volunteer hours with the Minnesota Justice Foundation and was a published author with the Cybaris Intellectual Property Law Review. He also interned for the Honorable Edward T. Wahl of the Hennepin County District Court during his last semester of law school. Ajouri earned his bachelor's degree in Psychology and Music Technology from Keele University in Staffordshire, UK. 

Barton advises clients on general commercial litigation matters, concentrating her practice on employment, insurance coverage, and tort & product liability cases. Barton graduated, cum laude, from the University of Minnesota Law School, where she served as a staff member and lead student articles editor of Law & Inequality: A Journal of Theory and Practice. She was involved in student activities and held leadership roles, including co-president of the Student Employment and Labor Law Association. During her last semester of law school, Barton served as judicial extern to the Honorable John R. Tunheim of the U.S. District Court for the District of Minnesota. Barton received her bachelor's degree, magna cum laude, from Coe College in Cedar Rapids, Iowa. 

Carlson assists clients with their general business litigation needs, working primarily on real estate, tort, and product liability matters. Carlson received his J.D., magna cum laude, from the University of Minnesota Law School, where he served as a staff member and managing editor of the Minnesota Law Review. Carlson spent his last semester as judicial extern to the Honorable Magistrate Judge Tony N. Leung at the U.S. District Court for the District of Minnesota. He earned his bachelor's degree, summa cum laude, from the University of Minnesota, Minneapolis. (View Full Bio.)

Krahn is a business litigator concentrating on general commercial matters. Before joining Maslon, Krahn served as a law clerk to the Honorable Matthew E. Johnson at the Minnesota Court of Appeals and taught constitutional law as an adjunct professor at Mitchell Hamline School of Law. Krahn received his law degree, summa cum laude, from Mitchell Hamline School of Law, where he served as Executive Editor of the Mitchell Hamline Law Review, participated in the Mitchell Hamline Fellows Program, and was honored several times with the CALI Excellence for the Future Award for achieving the highest grade in each class. During law school, Krahn also served as a judicial extern to the Honorable Magistrate Judge Tony Leung at the U.S. District Court for the District of Minnesota. Krahn received his bachelor's degree in piano performance, with distinction, from St. Olaf College. 

Schramm counsels business clients on general corporate and commercial law matters. Prior to becoming a lawyer, he founded and owned a financial planning and investment advising company, gaining valuable experience in client service, leadership, and strategy—all of which informs his work to help clients achieve their business goals. Schramm received his law degree, summa cum laude, from Mitchell Hamline School of Law, where he was honored multiple times with the CALI Excellence for the Future Award, an award given to the highest scoring student in each class. During law school, Schramm was a research assistant to Professor Sharon Sandeen, volunteered in the Business Law Clinic, served as a teaching fellow with the Marshall-Brennan Constitutional Literacy Project, and won a Burton Award for Excellence in Legal Writing (top 5 brief in lawyers program). Schramm earned his bachelor's degree from the University of Minnesota, Minneapolis. 

Jon represents owners, investors, lenders, and closely held businesses in connection with all phases of the commercial and agricultural real estate life cycle. In addition to assisting clients with due diligence review—including loan, title, and survey matters—he advises clients on acquisitions, sales, and development; mobile home and manufactured housing related matters; land use; loan workout; foreclosures; and environmental issues. Jon also has extensive experience in the agribusiness and manufactured housing industries.

Josh advises clients on a broad range of corporate and financial transactions. He helps clients with mergers and acquisitions by conducting due diligence, negotiating terms that fit the client's needs, and drafting documents for business transactions. Josh has experience documenting and conducting private placement due diligence, documenting loan transactions for commercial lenders, reviewing and documenting real estate transactions, reviewing title and survey materials, adhering to SEC regulations, and preparing corporate governance documents. 

LegalCORPS provides free assistance in non-litigation business law matters to low-income owners of small businesses, small nonprofit organizations and low-income innovators in Minnesota—through the services of volunteer attorneys. As a non-profit organization, its mission is to expand access to the legal system—in the area of business law—to many who otherwise would be left out.

For more information, or to register, go to: 2019 LegalCORPS Annual Celebration.

Terri is passionate about helping businesses grow, succeed, and scale. As a strategic business attorney, she works with a vibrant network of entrepreneurial and dynamic businesses, where she is a valued partner. She uses her broad strategic skills together with extensive experience to help her clients achieve success in all phases of their development and growth. She provides general counsel advice to her clients relating to all stages in the life cycle of a business, including contract drafting and negotiation, mergers and acquisitions, financing, strategic partnerships, distribution agreements, joint ventures, governance issues, exit strategies, and sales and recapitalizations. Terri also provides creative entity formation advice to clients who are seeking to restructure and align their legal structures with their business goals. She is also qualified as s Rule 114 Mediator and uses her experience to help parties amicably settle disputes.

For more information or to register, go to: Minnesota CLE, 2019 Business Law Institute.

Alan is a partner and co-chair of Maslon's Business & Securities Group, practicing primarily in the areas of securities, corporate finance, mergers and acquisitions, and general corporate and commercial matters. He represents issuers, underwriters and placement agents in connection with private placements and public securities offerings, assists clients engaged in purchase, sale and merger transactions, and advises public companies on matters related to SEC regulatory compliance, corporate governance, and executive compensation. 

Bill has been helping clients solve problems and pursue opportunities with legal-related advice and counsel for more than 30 years and is a partner in Maslon's Business & Securities Group. He represents a wide variety of clients in connection with mergers and acquisitions and management buy-outs. Bill counsels public companies in connection with their securities law compliance and general corporate matters and represents issuers and underwriters in connection with public and private securities offerings, secondary offerings, and alternative offerings.

Susan is a member of Maslon's Business & Securities Group. She represents clients in general corporate and taxation matters. Susan's experience includes assisting clients with tax controversies, tax liabilities, and audits as well as researching tax law, drafting legal appeals and memoranda, and preparing tax returns. From 2007-2011, Susan served as a law clerk to The Honorable James T. Swenson, Chief Judge of the Hennepin County District Court.

For more information, go to: Minnesota CLE – Corporations Deskbook.

Shawn McIntee, Terri Krivosha, and Bill Mower, partners in Maslon's Business & Securities Group, will serve as Minnesota Cup review board members. Shawn has participated in the Minnesota Cup since the competition's inception and will serve on a Grand Prize Review Board. Terri will serve on the review board for the General Division, a division that supports ideas and entrepreneurs with innovative services and solutions not associated with other divisions including consumer products, education, and retail. Bill will serve on the review board for the Food, Agriculture & Beverage Division, which includes businesses related to food and beverage products, food technologies in manufacturing, materials and ingredients technologies, food safety and farming. They join the other six Minnesota Cup divisions: Energy/Clean Technology/Water, High Tech, Life Science/Health IT, Social Entrepreneur, Student, and Youth.

Shawn concentrates his practice in the areas of advising public and private businesses, mergers and acquisitions, corporate and commercial law (including contracts and electronic commerce), technology and software transactions, and emerging companies. He has extensive experience advising clients on day-to-day legal and business matters, as well as in assisting them with the purchase and sale of businesses, including the divestiture of divisions, and management buyouts. Shawn is also the lead attorney in Maslon's Advertising & Marketing Group and represents both advertisers and Fortune 500 companies creating, using, and purchasing advertising and marketing.

Terri works with a vibrant network of entrepreneurial and dynamic businesses and those who fund them. She uses her broad strategic skills together with extensive experience to help her clients achieve success in all phases of their development and growth. Terri writes and speaks regularly on topics related to her practice and teaches a course on start-ups at William Mitchell College of Law. In August 2014, Terri's book Founding a Startup: What You Need to Know was published by Thomson/Reuters and is available on Amazon.com.

Bill has been helping clients solve problems and pursue opportunities with legal-related advice and counsel for more than 30 years. He represents a wide variety of clients in connection general corporate matters, with a special emphasis on mergers and acquisitions, venture financing, private placements and securities law compliance.

For more information about the competition, go to: Minnesota Cup.

Marty has more than 30 years' experience advising public and privately held companies on securities and corporate matters. His practice is concentrated in securities and corporate finance, including public offerings, private placements, venture capital financings, and mergers and acquisitions involving public and private companies. Marty regularly advises public companies of all sizes regarding preparation of public reports and proxy statements, public disclosures, insider trading, securities regulatory compliance, corporate governance matters, executive compensation, and stock plan issues. He provides business legal services to privately held corporations, partnerships, and limited liability companies in all stages, from organization through their initial public offering or sale. Marty also serves as president of LegalCORPS, a Minnesota non-profit organization providing pro bono business law services to low-income entrepreneurs and small non-profits.

"I am excited about beginning my term as President and helping LegalCORPS expand its programs," Marty shared. "The organization gives low-income business owners access to the business law advice they need to start and protect their business organizations. In turn, this fosters economic development that benefits all Minnesotans. It also gives business lawyers the opportunity to provide meaningful pro bono service within their area of expertise."

Marty has more than 30 years' experience advising public and privately held companies on securities and corporate matters. His practice is concentrated in securities and corporate finance, including public offerings, private placements, venture capital financings, and mergers and acquisitions involving public and private companies. Marty regularly advises public companies of all sizes regarding preparation of public reports and proxy statements, public disclosures, insider trading, securities regulatory compliance, corporate governance matters, executive compensation, and stock plan issues. He provides business legal services to privately held corporations, partnerships, and limited liability companies in all stages, from organization through their initial public offering or sale.

The article notes that LegalCORPS has been coordinating a number of long-distance clinics, where volunteer business lawyers gather at a central location and field questions via video-conferencing software from low-income entrepreneurs in parts of Minnesota with lower lawyer populations. Marty states, "the whole idea was that through the long-distance clinics we could serve a clientele that has very little access to people who specialize in business law. Someplace like Duluth has law firms, but a lot of business owners outstate don't even know where they would find a lawyer, much less afford one who can give specialized advice." These clinics supplement the numerous LegalCORPS in-person clinics staffed by volunteer business lawyers in the Twin Cities and other metropolitan areas in Minnesota.

To read the full article online, go to: Minnesota Lawyer "Sending help where it's needed."

Marty Rosenbaum has more than 30 years' experience advising public and privately held companies on securities and corporate matters. His practice is concentrated in securities and corporate finance, including public offerings, private placements, venture capital financings, and mergers and acquisitions involving public and private companies. Marty regularly advises public companies of all sizes regarding preparation of public reports and proxy statements, public disclosures, insider trading, securities regulatory compliance, corporate governance matters, executive compensation, and stock plan issues. Marty was named a "Notable Practitioner" in Corporate/M&A by Chambers USA in 2007-2015.

Shawn McIntee, Terri Krivosha, and Bill Mower, partners in Maslon's Business & Securities Group, will serve as Minnesota Cup review board members. Shawn has participated with the Minnesota Cup since the competition's inception and will serve on a Grand Prize Review Board. Terri will serve on the review board for the Social Entrepreneur Division, a division which seeks out, supports, and celebrates Minnesota's most innovative and effective social entrepreneurs and the organizations they lead. Bill will serve on the review board for the Food, Agriculture & Beverage Division, which includes businesses focused on food products, food processing technologies, material innovation, ingredients technologies, agriculture innovation, food safety advancements, and more. They join the other five Minnesota Cup divisions: Energy/Clean Tech/Water, General, High Tech, Life Science/Health IT, and Student.

Shawn McIntee concentrates his practice in the areas of advising public and private businesses, mergers and acquisitions, corporate and commercial law (including contracts and electronic commerce), software and software licensing, and emerging companies. He has extensive experience advising clients on day-to-day legal and business matters, as well as in assisting clients with the purchase and sale of businesses, including the divestiture of divisions, and management buyouts. He is also lead attorney for Maslon's Advertising & Marketing Group and represents both advertisers and Fortune 500 companies creating, using, and purchasing advertising and marketing.

Terri Krivosha works with a vibrant network of entrepreneurial and dynamic businesses and those who fund them. She uses her broad strategic skills together with extensive experience to help her clients achieve success in all phases of their development and growth. She writes and speaks regularly on topics related to her practice, and teaches a course on start-ups at William Mitchell College of Law. In August 2014, Terri's book Founding a Startup: What You Need to Know was published by Thomson/Reuters and is available on Amazon.com.

Bill Mower has been helping clients solve problems and pursue opportunities with legal-related advice and counsel for more than 30 years. He represents a wide variety of clients in connection with mergers and acquisitions and management buy-outs. Bill counsels public companies in connection with their securities law compliance and general corporate matters, and represents issuers and underwriters in connection with public and private securities offerings, secondary offerings, and alternative offerings.

For more information about the competition, go to: Minnesota Cup.

Ali Duerr joins Maslon's Business & Securities Group and focuses her practice in the areas of public company securities law disclosure and compliance, private placements of equity securities, mergers and acquisitions, and corporate governance. She has experience preparing a broad assortment of corporate and transactional documents, including key U.S. Securities and Exchange Commission reports, private placement memoranda and related offering documents, purchase and sale agreements, and formation and governing documents. Ali is a graduate of the University of Denver Sturm College of Law, where she served as executive editor of the Transportation Law Journal. Before joining Maslon, Ali practiced at a large private law firm in Denver. 

Erica Holzer joins Maslon's Litigation Group and focuses her practice in the areas of complex commercial disputes, product liability litigation, and appeals. Erica earned her law degree, summa cum laude, from William Mitchell College of Law, where she served as the editor-in-chief of the William Mitchell Law Review. During law school, she was the recipient of the Minnesota Lavender Bar Association's Student Leadership Award and the William Mitchell "Student Award of Merit" at commencement. Before joining Maslon, Erica served as a law clerk to the Honorable Matthew E. Johnson of the Minnesota Court of Appeals.

Jason Reed joins Maslon's Financial Services Group and focuses his practice on corporate trustee representation, issues relating to corporate trust litigation, and bankruptcy concerns. Prior to joining Maslon, he clerked for the Honorable Robert Littlefield, Jr. at the United States Bankruptcy Court for the Northern District of New York. Jason is a 2013 magna cum laude, Order of the Coif graduate of the University of Minnesota Law School. During law school, he served as lead managing editor of the Journal of Law and Inequality and was the recipient of the Kent Wennerstrom Award – Outstanding Student Director 2012-2013.

Kristian Weir joins Maslon's Litigation Group and practices in the area of general commercial litigation. He received his undergraduate degree in history from Boston College and earned his law degree, cum laude, from the University of Notre Dame Law School. Kristian was a member of the Notre Dame Law School Moot Court Team that won the 2013 National AAJ STAC Trial Competition, and was the winner of the 1L Moot Court Competition during his first year of law school. He also had the unique opportunity of serving as a clerk in the Bath Magistrates' Court in Britain, an experience which he incorporated into a dissertation comparing British and American tort systems, written while studying abroad in Bath and at University College, Oxford.

Terri Krivosha, Shawn McIntee and Bill Mower, partners in Maslon’s Business & Securities Group, will serve as Minnesota Cup review board members. Review board member selections are based on extensive experience working with leading, early-stage growth companies and providing feedback, mentorship and resources that have led to success.

Shawn has participated with the Minnesota Cup since the competition's inception and will serve on a Grand Prize Review Board. Terri will serve on the review board for the Social Entrepreneur Division, a division which seeks out, supports, and celebrates Minnesota's most innovative and effective social entrepreneurs and the organizations they lead. Bill will serve on the review board for the new Food, Agriculture & Beverage Division, which includes businesses focused on food products, food processing technologies, material innovation, ingredients technologies, agriculture innovation, food safety advancements and more. It joins the other six Minnesota Cup divisions: Energy/Clean Tech/Water, General, High Tech, Life Science/Health IT, Social Entrepreneur, and Student.

Terri Krivosha works with a vibrant network of entrepreneurial and dynamic businesses and those who fund them and uses her broad strategic skills together with extensive experience to help her clients achieve success in all phases of their development and growth. She focuses her practice on mergers and acquisitions, financing, contract negotiation, strategic partnerships, distribution agreements, joint ventures, governance issues, exit strategies, and sales and recapitalizations. 

Shawn McIntee has extensive experience advising clients on day-to-day legal and business matters, as well as in assisting clients with the purchase and sale of businesses, including the divestiture of divisions, and management buyouts. He is also lead attorney for Maslon's Advertising & Marketing Group and represents both advertisers and Fortune 500 companies creating, using, and purchasing advertising and marketing.

Bill Mower represents a wide variety of clients in connection with mergers and acquisitions and management buy-outs. He counsels public companies in connection with their securities law compliance and general corporate matters, and represents issuers and underwriters in connection with public and private securities offerings, secondary offerings and alternative offerings.

For more information about the competition, go to Minnesota Cup.

Doug Holod helps entrepreneurs and small to mid-sized companies achieve their potential by maximizing opportunities while managing risk and minimizing expenses. Doug represents clients in a broad range of industries, with a particular focus on the technology, healthcare, and restaurant industries. He also acts as a value-conscious general counsel for companies, coordinating and utilizing other Maslon lawyers when needed with employment, litigation, real estate or technology expertise.

Alan Gilbert practices primarily in the areas of securities, corporate finance, mergers and acquisitions, and general corporate and commercial matters. Alan represents issuers (both seasoned and emerging companies), underwriters, and placement agents in connection with private placements and public securities offerings, advises clients in connection with merger and acquisition transactions and assists public companies on matters related to SEC regulatory compliance, corporate governance, and executive compensation.