This article summarizes possible outcomes from a business divorce. There are rarely good options in a business divorce, only ways to minimize the risk and uncertainty. It is not unlikely that the partners will engage in a self-defeating street fight with only losers and no winners. There are several issues that may affect the partners’ respective negotiating positions. In terms of the company, there are a limited number of possibilities: the company will continue to exist or it will be dissolved. There are of course other variants such as the assets of the company may be purchased or the company may be merged into a different company. In terms of damages or other remedies to the aggrieved party, courts try to fashion a remedy depending on the alleged harm. Whatever the outcome in a business divorce, usually none of the parties is particularly happy. The best medicine is preventive medicine. You should go into business only with those whom you trust and those with whom you can manage a long term relationship. And before you go forward with that partner, even the most compatible partner, make sure you speak with your small business attorney to craft an agreement for what you and your partner should do when you disagree.

Business Divorce and Small Businesses

Friday, 11 November 2016 by

At one time or another there will be an end to your business. When you started your business, you should have developed an exit strategy, but sometimes things don’t go as planned. The business may end happily in a merger or acquisition and sometimes less happily by dissolution or bankruptcy. Without clear guidelines at the outside, you will find that extricating yourself from your partners may be costly. A business divorce may have similar acrimony to a family divorce. In a family divorce, there is the combustible combination of kids and money. In a business divorce, the business partners undoubtedly will also argue about money—and will contend for control over their business, which for founders, can be like an extension of their families. The disputes among partners are not easy disputes. And business divorces like their family counterparts have numerous moving parts in various areas of the law such as business organizations, contracts, unfair trade practices, employment law and trade secrets. This article summarizes some of the considerations you should keep in mind when discussing with your small business lawyer what steps you and your partners should take to minimize the risk of a messy divorce with your partners down the line.

This article is about some of the traps that lie in wait for unwary founders. Remember that any startup has numerous issues to deal with starting on day one of the formation of the new business. A new business owner who fails to be ready on day one proceeds at his or her own peril. Startup legal problems can take numerous forms and this article discusses some of the major issues such as failing to assign the IP to the new company, failing to reduce investor or partner agreements to writing, agreeing to a “standard” agreement, failing to observe corporate formalities, and failing to take into account that partners may die, get divorced or file for bankruptcy.

Negotiating LLC Operating Agreements

Tuesday, 09 February 2016 by

This blog post highlights some of the critical issues in negotiating operating agreements for a new business. The operating agreement for a limited liability company (LLC) is the critical document that governs formation, governance, distributions and dissolution of your business, among other issues. You will want to give special attention to negotiating the operating agreement, especially when your business has several partners or investors. The LLC is a creature of state law and the operating agreement is an agreement. You have great latitude in negotiating the terms of the operating agreement as most states have few mandatory provisions. The operating agreement for your LLC is the most important agreement that will govern your business for the life of the business. These terms may be difficult to negotiate but if a dispute arises, they will be even more difficult to resolve without the guidance from your operating agreement. You should go over the terms and conditions of the operating agreement carefully with your small business lawyer and make sure you understand and agree before you jump in to a relationship with partners and investors.

If you ask entrepreneurs what are their major challenges in getting a new business off the ground, the three most common responses are money, money, money. There are indeed other major challenges but the primary concern of most new businesses is how to attract startup funding. Whether the entrepreneur is opening a small service business or introducing a new product onto the market, the challenge of funding looms large. When these small business owners face a major hurdle in attracting funding to support their new businesses, either as they are starting out or as they try to grow the business, they have at least three options: funding their business with their personal reserves; taking out a loan; attracting investors. This Rosten Law blog briefly discusses each of these options.

Careful when electing LLC taxed as S Corp. Your startup business is organized as a LLC and you have consulted with your small business lawyer and tax adviser about whether you should elect to be taxed as a S corporation. Your startup lawyer has filed the papers to organize your LLC in Washington DC or elsewhere. You decided to make the S corp election to save self-employment taxes—a good reason for many small business owners. All is good and well, except that there are looming traps for the unwary. When you talk with your tax adviser or your startup attorney, you want to come prepared and understand that the S corp election may pose some financial risks for you. This article describes some of the looming risks for those business owners who have elected for their LLC to be taxed as a S corp. This article is not meant to provide tax or legal advice, rather to highlight some of the issues that you as the small business owner may face and will want to make an informed decision with you small business attorney or tax adviser. This article was not intended to provide an exhaustive list of differences between taxation of a partnership and taxation of a S corporation. Rather, this article was intended to highlight some of the differences. You may have a good idea of your exit strategy for your new business. If you think that you will be able to take it public in a few years, or that you will stand to benefit for minimizing self-employment taxes, then there may be good reason to make the election to be taxed as a corporation. This article intended to point out some of the countervailing considerations and you should discuss your particular needs with your small business attorney and tax adviser.

We have reviewed the considerations for choosing your business formation type between a limited liability company (LLC) or corporation. You have discussed the choices with your startup lawyer. The threshold question you want to ask is whether your small business would qualify for S corporation tax treatment. For many clients, that is the end of the story because their startup has something that would make it ineligible for S corporation tax treatment such as one of the partners is a corporation. If the business meets the S corporation criteria, then the next question is whether it is advantageous to the new business to elect to be treated as a S corporation. As we have discussed in this blog, the clear answer is “it depends.” There are advantages and disadvantages to both S corporation tax status and partnership tax status, but the primary driver for those who elect S corporation status is to try to save self-employment taxes. In the next blog, I will write that there are more dimensions to this decision. We will go over some of the rules regarding distributions, redemption of ownership interests, contributions of goods or services, among some other rules that you may want to talk about with your tax adviser. The rules governing taxation of LLCs are complex and a tax adviser is essential to help guide you through the tax maze.

Your startup attorney may suggest that you look at the S corporation and LLC as the two most attractive options for forming your new business. There are a number of considerations for you to keep in mind for your startup business and for you to decided on a LLC or S corporation. They generally fall into four major categories: Protecting personal assets: the business owner wants to assure that the new business’ creditors can only get at the assets of the business, not those of the individual owners; Transferring interests in the business: whatever form you have, you want to be able to transfer stock, or ownership interests in your business; Admitting new investors: you want to make sure that you have a mechanism to admit or restrict new investors in the business; Taxes: which corporate form allows you to pay the least amount of taxes. In this blog post, I am going to focus on two of the most common forms available for small businesses: S corporations named after subchapter S in the tax code, and limited liability companies (LLCs). New business owners generally like the flexibility of the limited liability companies over a corporation and they can still have their LLC taxed as a C corporation or S corporation if they want and can qualify.

You have designed an innovative product or developed a groundbreaking service that will change the face of your industry. You have written a business plan and just maybe you have gotten some of your friends or family to agree to invest in your new venture. You are exuding confidence that you are going to start reeling in the customers just as soon as you can open your doors for business. You are ready to start your business, but you are faced with numerous implementation challenges. This blog post provides a checklist for starting a business. You will need to address each of these issues for your startup. At first, this checklist for starting a business may seem daunting, but if you take each issue in hand and work through your contacts and business associates, you may be able to resolve these issues more quickly. What you really want to do for your startup is to develop the many systems that will support your new business so that you have time and energy to focus on growing the business. I am going to mention each of these questions but not in any particular order of priority. You need to start making a list and attacking each of these implementation questions one at a time.

Changing the Name of Your Small Business

Tuesday, 13 October 2015 by

After reading the Rosten Law blog on choosing a name for your small business, a reader asked what a small business owner should do if he or she is no longer satisfied with the name already chosen and registered. From a legal standpoint, you have some options. From a business perspective, changing the name of your small business can be a hassle. The real challenge is going around and informing vendors, customers, banks, and business associates that you have changed the name of your business and that you want them to switch over the name of the business on their internal records to a new name. If you thought that it was an issue getting your vendors and clients to change your address after a move, wait until you send around a request for them to start calling your business something different! Nonetheless, you have decided that you must change the name of your small business. You should first review the considerations that we enumerated in our blog on how to choose a name for your business. The legal aspects of changing the name of your small business are relatively straightforward. You have at least three choices.

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