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Business and Corporate Law
Business and Corporate Law involves the rights among various parties involved in a business entity. Four primary business entities are the Sole Proprietorship, the Partnership, the Corporation and the Limited Liability Company.
Sole Proprietorship and Partnerships
The Sole Proprietorship requires no special formation formalities and the liabilities of the Sole Proprietorship flow directly to the owner. A Partnership requires a written agreement and the liabilities flow to the Partners.
In the case of a corporation, the rights and duties involved are those of the various stakeholders including the shareholders, board of directors, creditors and other the and responsibilities of the officers including the CEO, President, Vice President, CFO, Treasures and Corporate Secretary.
Corporations are taxed in one of two ways, as a C-Corporation or as an S-Corporation, depending on the election made by the corporation and is subject to different tax regulations. Generally, C-Corporations file separate tax returns and are taxed on the corporate income. An S-Corporation does not file a separate tax return and the income and losses are claimed directly by the shareholders on their individual tax returns.
Corporate Governance involves the proper authority to governs and operate the affairs of the company; the scope of powers of each of the officers, the board and the shareholders. Securing the proper authority within the company and the necessary votes to make certain decisions and transactions is critical. Whether you secure a board vote or a consent vote in lieu of a meeting depends on the type of action. Corporate resolutions for the granting of stock is often overlooked in close corporations. Having experienced counsel will help you navigate the maze of rights to conduct business properly.
Certificate of Incorporation and Bylaws
Certificate of Incorporation are filed with the Secretary of State to create the entity. The Bylaws are not filed with the State but are used to govern the company and more particularly describe the mechanism for annual meetings of shareholders, special meetings of the board of directors, annual meetings of the board of directors and the requisite authority of each of the officers of the company, among other things.
Limited Liability Company
A Limited Liability Company provides the owners with the liability protection of a corporation but the earnings flow directly to each owner personally like a partnership. No separate corporate tax filing is involved. A Certificate of Formation is filed with the Secretary of State to create the entity. Rather than bylaws, the governing document is called an Operating Agreement. The governance is addressed in the Operating Agreement as well as the rights of each of the owners. Owners are referred to as Members, Members with voting rights are called Managers. Managers govern the limited liability corporation. Matters such as the handling and distribution of profits to Members and the allocations for losses is described in detail in the Operating Agreement.
Small Business Administration
The Small Business Administration has various programs to help a company get started and to grow established organizations. The SBA Programs range from Microloans to SBA backed bank loans with the SBA guaranteeing up to 80% of the principal. For more details see: http:// www.sba.gov
Angel Investors are individuals looking to invest in a new business venture. Angels generally require equity in exchange for their investment. Since the exchange of equity for cash is the sale of securities, the angels should be accredited investors as defined by the Securities and Exchange Commission (SEC): having a net worth of a minimum of $1,000,000 dollars and having a minimum income of $200,000 per year or $300,000 per year if married. For more information, a good source is: http://www.angelcapitalassociation.org/.
Venture Capital Financing
Venture Capital is a viable alternative for companies anticipating high growth and a liquidity event such as a sale in 5 years. VC’s are institutional investors and will require significant equity in exchange for the risk they will be taking. The equity determination comes down to the valuation of the company. Although each deal is different and subject to negotiation, typical considerations include the choice between debt and preferred stock; debt with accrued interest, convertible promissory notes with options to acquire additional equity at discount. Typical documents begin with a Term Sheet and include a Series A Convertible Preferred Stock Purchase Agreement, Stockholders’ Voting Agreement, Registration Rights Agreement, Right of First Refusal and Co-Sale Agreement and Investors Rights Agreement. A good source is the National Venture Capital Association at http://www.nvca.org.
Securities laws prohibit the sale or offer of securities unless a security is registered or an exemption from registration is available. The Securities Act of 1933, as amended, contains certain transactional exemptions from registration, such as private offerings of securities under Section 4 (2) of the Securities Act of 1933, as amended. The Securities and Exchange Commission (SEC) has adopted a series of rules for Section 4 (2) known as Regulation D. State securities regulators have adopted similar rules to govern the sale and offering of securities to a limited number of investors. A good starting point is: http://www.sec.gov/.
Banks offer commercial loans to businesses on secured and unsecured basis depending on the creditworthiness of the company. Interest rates generally fluctuate depending relative to the prime rate of interest. The maturity and prepayment terms are negotiated. Collateral to secure the loans is often required, such as a security interest on assets and receivables (UCC Lien), and real estate. One of the most important issues for a company owner is whether the bank will require a personal guarantee. Another area of negotiation is the precise terms that define when a borrower is in breach of the bank covenants and the loan could be called (accelerated).
If you have developed a successful business model that is unique, profitable and scalable, franchising may be a viable option to grow your business. A franchisee/franchisor agreement involves among other things the licensing of know how and proprietary information, the licensing of trademarks, the sale of products, the degree of control over franchisee operations by the franchisor and the payment of fees and royalties. The Federal Trade Commission (FTC) oversees franchising in the US. The FTC requires a franchisor to develop a Franchise Disclosure Document (FDD) and a Uniform Offering Circular (UFOC). Individual states have their own disclosure requirements that are at least in compliance with the FTC. States also enforce laws and regulations concerning franchises in their states. For more information https://www.ftc.gov.
Initial Public Offering (IPO)
Initial Public Offering (IPO) is the sale of stock to the general public though a securities exchange. Investment banks are generally involved as underwriters, determining the value of the shares and providing other services to bring the shares to the public market. For more information see http://www.sec.gov/answers/ipo.htm
Liquidity Events/Exit Strategy: Mergers and Acquisitions (M&A)
The sale of a company starts with structuring the deal as either a sale of stock or assets. Most buyers prefer to acquire assets and sellers prefer to sell the company by selling its stock. The starting pint is the negotiation of a term sheet.
A merger is the combination of companies whereby the board of directors of each, agree on a plan of merger. Then plan specifies which corporation will survive and which ones will be merged out of existence. The shareholders of the nonsurviving corporation(s) usually receive cash and shares in the surviving corporation. Mergers are often used in acquisitions where the buyer sets up and funds a new corporation to exchange cash and exchange stock in the new corporation with the seller/nonsurviving corporation. Mergers are governed by state statutes.
Dissolution & Winding up
The process of dissolution and liquidation of corporations can be voluntary or involuntary. The consent of the stockholders is necessary to voluntarily dissolve a corporation. Debts and claims against the corporation are top be paid before assets are distributed to the shareholders. Involuntary dissolution occurs when a corporation fails to comply with the corporate law of the state if its incorporation. In unusual circumstances, corporation may also be dissolved by judicial determination, such as when the directors of a corporation are deadlocked and the shareholders of the corporation are unable to break the deadlock.