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.
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.
You have now consulted with your small business attorney and to your surprise the attorney has advised you as a small business owner that a selling LLC interests may be subject to securities laws.
Selling a piece of your limited liability company, even if it is a small business, may put you on the radar of the Securities and Exchange Commission (SEC). It doesn’t mean that you have to go public. “Going public” for those not in the know basically means that you have to register the securities with the SEC. Think big bucks for your securities lawyers and investment bankers. If you have a security, then you either have to register with the SEC or you must meet an exemption. If you fall within an exemption to the securities laws, you do not need to register the securities. Just to hammer home the point, the SEC succinctly states: If a small business is offering and selling securities, even if to just one person, the offer and sale of the securities must either be registered with the SEC or conducted in accordance with one of the many registration exemptions under the Securities Act. As a small business owner, if the membership interests may be considered securities, you are looking for an exemption as you do not want the risk of substantial fines from the SEC and possibly worse yet, you do not want the purchaser to try to rescind the purchase. This article reviews the various exemptions from the securities laws.
You have a small company and formed the business as a limited liability company. You think that securities laws are only for large companies. But If you think that the Securities and Exchange Commission is not interested in selling some membership interests in your LLC, you may want to think again – and ready this article. You have to be worried about federal and state securities laws only if you are selling securities. The big question is whether membership interests in an LLC are “securities.” The sale of certain limited liability company interests may fall within the ambit of a securities transaction. This article addresses the question of whether ownership interests in a LLC are subject to securities laws. In the next article, we will discuss what are the implications of treating the sale of ownership interests in a LLC as a securities transaction. Then you need to think about who you can sell those LLC interests to and who can represent your company in finding investors.
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.
Checklist for selling or buying a small business: Starting a business is relatively simple, especially if you have worked with a startup lawyer. Selling your small business, however, may be more challenging than you anticipated. Forming a new business is not challenging. You can form a business just as quickly as you ask your small business lawyer to file the papers with the corporations department or in Washington DC with the Department of Consumer and Regulatory Affairs. Selling a business is a lot more challenging than forming a business. There may be many reasons to exit and you now want to receive the full value (value is in the eye of the beholder of course) of the company that you started. You will need the services of your business advisers, your tax advisers and of course your mergers and acquisitions attorney. This article highlights some of the guideposts in the merger or acquisition of a small business.
Primer on crowdfunding for small businesses. The startup or small business faces daunting challenges in attracting funding. Simply, startup funding isn’t simple. The Jumpstart Our Business Startups Act of 2012 (the JOBS Act) added another arrow in the quiver of those looking for funding sources for their startup or small business. Crowdfunding has been around for a while, but the JOBS Act added an entirely new dimension to crowdfunding. This blog post discusses innovations recently introduced to allow the small business to attract investment through crowdfunding. The new crowdfunding rules are “designed to assist smaller companies with capital formation and provide investors with additional protections.” Crowdfunding may not be for every small business, but you should at least familiarize yourself with the contours of the JOBS Act crowdfunding and decide whether it is an avenue that your small business may want to pursue.
Justice Scalia’s unexpected death leaves a huge void on the Supreme Court and he will be missed by liberals and conservatives alike for his brilliant mind and uncommon humor. Others may not miss him as much for his biting dissents and personal invective against some of his colleagues on the court. Regardless of whether you agreed or not with his opinions–and I confess that I did not subscribe to his conservative judicial views–the Court and the country lost a judicial icon. This blog post recalls a special lunch I had many years ago with Justice Scalia.
- Published in Rosten Law
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.
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