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.
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.
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.
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.
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.