Issues Overlooked by Start-Ups: A Live Blog Chat

I was recently the featured guest on Image Talk, a blog talk radio interview presented by YPI Consultants (http://www.ypiconsultants.com/), discussing some of the legal issues that small businesses and start-ups often overlook. 

You can listen to the interview at:

http://www.blogtalkradio.com/ypiconsultants/2012/07/24/image-talk

Disclaimer: The discussions in this blog do not constitute legal advice nor create any attorney-client relationship.  You are urged to seek the advice of an experienced lawyer who can provide counsel with respect to your corporate/business law matters


 

Business Entities: Structures, Characteristics and Choosing the Right One for Your Business (Part I)

Below is a link to Part I of a four-part continuing legal education seminar I recently gave on business structures, characteristics and choosing the right one for your business.

Please see:  https://vimeo.com/44118492

Parts II, III and IV will be made avaialble in the next several blog posts.




Disclaimer:  The discussions in this blog do not constitute legal advice nor create any attorney-client relationship.  You are urged to seek the advice of an experienced lawyer who can provide counsel with respect to your corporate/business law matters

Why the LLC is a Favorite for Start Ups (Part III)

This post is Part III of a discussion as to why lawyers suggest, and entrepreneurs often prefer, the structure of the limited liability company over other business entities.  While the LLC is relatively new in comparison to the corporation, start-ups more often choose the LLC when forming their business.  What is it about the LLC that makes a preferred structure for start-ups?  As explained in the first installment, there are three reasons the LLC has become so prevalent:

          1.  Reason #1: The tax advantages of the LLC versus the corporation;
         
          2.  Reason #2: The extremely flexible nature of the LLC, allowing wide-latitude in structuring the rights and obligations of the members (i.e., the partners);

          3. Reason #3:  The user friendly nature of an LLC.  

A comparison of the arguable tax advantages of the LLC was the subject of Part I of this discussion, and Part II focused on the flexibility of the LLC and the wide-latitude it provides in structuring the rights and obligations of the partners.  This final installment examines the user friendly nature of the LLC, which imposes very few compliance requirements in order to maintain the entity.   

Reason #3:  The user friendly nature of the LLC.

For consumers, one trademark of good technology is whether it is user friendly.  Similarly, the LLC has become a preferred choice of many entrepreneurs because it requires very little to form and then maintain the entity.

   A.  Formation.  The formation of a limited liability company requires very little:

                  (i) In New York, the form for the Articles of Organization is available online at http://www.dos.ny.gov/corps/llccorp.html#artorg and can be filed by anyone (the "Organizer") without the need of a lawyer or a legal service.  The Organizer forms an LLC by filing the Articles of Organization, pursuant to Section 203 of the Limited Liability Company Law, with the Department of State.  Any person or entity may be an organizer and the the Organizer does not have to be a member of the LLC.

                 (ii) Operating Agreement.   Pursuant to Section 417 of the New York Limited Liability Company Law (NYLLCL), an Operating Agreement must be entered into by the members.  Part II of this series discussed the importance of the Operating Agreement, and the flexibility allowing the members to construct the rights and obligations as the members wish, subject only to express restrictions in the NYLLLCL or as otherwise prohibited by law.  The limited liability company Operating Agreement is not filed with the State. 

               (iii) Publication Requirement.  New York maintains an arcane requirement that LLC's publish a notice of the formation of the entity in two newspapers (as designated by the county clerk) for six consecutive weeks.  See NYLLCL Section 206.  The publication fees vary by county, but regardless are expensive and, quite frankly, an unjustifiable but legally required expense.  Upon compliance with the publication requirement, the newspaper will provide an affidavit of publication to be filed with the State.  With this ridiculous requirement comes the obvious question:  What are the ramifications of failing to publish and can it be corrected?  If you have not met the publication requirements, "the authority of such limited liability company to carry on, conduct or transact any business in [New York] shall be suspended."  NYLLCL Section 203.  However, some courts have held that if the LLC cures the failure after filing the action, the lawsuit can be maintained, and a suspended entity can cure the default.  The other major concern is whether the members lose the protection of the LLC, and since the answer is uncertain the ambiguity means it is sensible to comply with the publication requirement.
       
             (iv) Comparison with Corporation.  Formation of a corporation is also relatively simple requiring only the filing of the Certificate of Incorporation using a pre-printed and form approved by the New York State Department, see http://www.dos.ny.gov/forms/corporations/1239-f-l.pdf.  Unlike the LLC, no publication requirement exists, which obviously saves a considerable expense over formation of the LLC.  However, as publication is a one-time requirement, other factors (such as tax advantages) often mean entrepreneurs still prefer the LLC.
   
    B.  Tax Filings.  Because an LLC does not have a tax status separate from its members, the LLC does not file an entity tax return.  While the LLC must prepare an informational filing showing the profit and losses of the LLC's business, see IRS Form 1065, there is no separate determination of tax liability for the LLC and thus no separate tax calculation.  The absence of a separate tax existence of the LLC is in contrast to the corporation, which is required to calculate the tax liability of the corporate entity and file a actual (rather than an informational return).  Of course, the shareholders also will have an individual tax liability based on any distributions (dividends) received from the corporation.  The tax returns of the corporation and the informational return of the LLC must be retained with the records of the entity.

   C. Management of the Entity.  An LLC is not required to have more than one manager regardless of the number of members.  In contrast, a corporation with three or more shareholders must have at least three directors.  The requirement of three directors increases the cost of operations, creates additional administrative burdens, and affects the dynamics of managing an entity which is obviously much simpler in the case of an LLC managed by one manager.     

   D.  Maintenance/Administrative Requirements.

         (i) Annual Meetings.  A corporation must hold an annual meeting of its Directors and of its shareholders.  Contrast that with the LLC, which requires no annual meeting, unless the Operating Agreement provides otherwise.  And, just because the corporation is only required to hold one annual meeting, significant business decisions should be handled by formal resolutions.  Although not required, t is advisable for an LLC to document important resolutions thereby demonstrating that the members observe formalities in the event of an attempt by a third party to pierce the protection afforded the members by the LLC structure.

        (ii) Minutes of Meetings.  New York State also requires that corporations keep and maintain copies of all meeting minutes.  Accordingly, proper Minutes of meetings need to be recorded by a designated person, which preferably is a Corporate Secretary elected annually.  Not only are minutes required by law, they may be required by your bank or even parties to a transaction as proof of corporate approval.  Additionally, shareholders have a right to review these records upon reasonable demand.  If you have a corporation, the record book should contain at a minimum the Articles of Incorporation, by-laws, stock certificates, and copies of resolutions and minutes of corporate meetings.   LLCs do not have a requirement to record minutes of meetings, although it is a good idea to do so from a record keeping standpoint and also to demonstrate adherence to corporate formalities.
      
       (iii) Shareholder/Member Lists.  Corporations must maintain a list of all of its shareholders, the number and class of shares held by each and the dates when they respectively became the owners of record thereof; LLC's are required to keep a list of its members (together with the contribution and percentage interest) and managers.

       (iv) Organizational Documents.  Both the corporation and LLC need to keep a copy of the organizational documents, i.e., the Articles of Organization and all amendments of the LLC and Certificate of Formation of the corporation.  Further, a copy of the LLC's Operating Agreement or Corporation By Laws shall be kept with the entity records.

        E.  "But I Heard VCs don't like LLCs."  It is often suggested that businesses looking to raise third party financing from VCs or Angels should not form an LLC as the structure will be an obstacle to attracting financing.  While this may have been the case a few years ago, the prevalence of the LLC, tax advantage and the flexibility of the LLC as evidence by the ability to draft the Operating Agreement to fit the rights and obligations of the members has, for the most part, put this concern to rest.  Importantly, if a future investor insists on a corporation, the LLC members have a right to convert the entity to a corporation.  Be forewarned, however, that conversion of an LLC to a corporation gives rise to important tax considerations which should be discussed in advance with a tax professional.


The LLC has certain obvious advantages when compared to a corporation, but choosing the proper entity for your business can be driven by a number of factors, including those that are particular to the nature of your business or your tax situation.  Therefore, it is important to consult a lawyer and often a tax advisor before proceeding with the formation of the business structure.


Disclaimer:  The discussions in this blog do not constitute legal advise nor create any attorney-client relationship.  You are urged to seek the advice of an experienced lawyer who can provide counsel with respect to your corporate/business law matters.

Why the LLC is a Favorite for Start Ups (Part II)

This post is Part II of a discussion as to why lawyers suggest, and entrepreneurs often prefer, the structure of the limited liability company over other business entities.  While the LLC is relatively new in comparison to the corporation, start-ups more often choose the LLC when forming their business.  Therefore, what is it about the LLC that makes a preferred structure for start-ups?  As explained in the first installment, there are three reasons the LLC has become so prevalent:

          1.  Reason #1: The tax advantages of the LLC versus the corporation;
         
          2.  Reason #2: The extremely flexible nature of the LLC, allowing wide-latitude in structuring the rights and obligations of the members (i.e., the partners);

          3. Reason #3:  The user friendly nature of an LLC.  

A comparison of the arguable tax advantages of the LLC was the subject of the previous post, while this post focuses on the flexibility of the LLC and the wide-latitude it provides in structuring the rights and obligations of the partners.

Reason #2: The extremely flexible nature of the LLC, allows wide-latitude in structuring the rights and obligations of the members (i.e., the partners).


The document governing the rights and obligations of the members of an LLC is the Operating Agreement.  The key aspect of the Operating Agreement is that it is an extremely flexible document and is limited only by what is expressly prohibited or required by the NY LLCL.  Therefore, the members can utilize the Operating Agreement to structure the economic and control rights to fit the needs of the members and the business.

            A.  Do you want the entity controlled by all the members or a manager?  Under New York law, LLCs are by default deemed member managed, and thus each member has management authority; however, New York law also allows the members to instead choose to have the LLC managed by a manager or a board of managers, and the manager does not need to be a member of the entity.

           B. Do you want all the members to have the same rights?  If not, different classes of members can be created based on voting or economic rights, and in fact some members can be given economic but not voting rights.  Additionally, economic and voting rights need not be based on ownership percentage in the LLC. Contrast this flexibility with an SCorp which prohibits creating different classes of shareholders.  Another alternative is to require super majority or even unanimity for key decisions, leaving the manager to run the day-to-day operations but limiting the authority to protect the rights of minority members when it comes to important substantive issues.

          C.  Do you want to restrict the transfer, pledge or sale of membership interests?  Through the Operating Agreement, the members can elect to include provisions restricting the transfer, pledge or sale of membership interests.  Adding provisions such as a right of first refusal, a co-sale right and a prohibition on the pledge of one's membership interests not only (i) limits the ability of a member to dispose of its interests  without an opportunity for the other members to also monetize, in part, their interests, but also (ii) means the existing members can preclude the admission of a third party who they may decide is not good for the business.

          D. What can be done if I have a dispute with my partner?  The members will have an opportunity when drafting the Operating Agreement to include a Buy/Sell provision addressing the rights of the members if a serious and seemingly unresolvable dispute arises. The Buy/Sell provision should detail the procedure for exercising the right and the methodology employed for valuation of the membership interests. See  http://mybizlawyer.blogspot.com/2011/09/joint-venture-have-shotgun-clause.html  In addition, include a clear dispute resolution clause, as you would in any contract, which states the venue for resolving claims both in terms of the type of tribunal (i.e., court, arbitration, mediation) and the actual geographic location (for example, New York County or Nassau County).

         E. What are other examples of what can be included in the Operating Agreement and what are the limitations?  Simply put, the the Operating Agreement can include any provision the members decide to incorporate provided it is not prohibited by the New York Limited Liability Company Law (or is otherwise unlawful).  Therefore, the members may decide to include, among other clauses, (i) a non-compete clause, (ii) confidentiality restrictions, (iii) provisions adjusting the application of certain tax provisions, (iv) provisions relating to the allocation and distribution of profits and losses, (v) grounds for termination of the LLC, expulsion of a member, or addition of new members and (vi) creation of officer positions (such as a President or CFO), to name a few examples of typical Operating Agreement terms. 

       F.  But I have heard that it is harder to raise funds from investors when you have an LLC as opposed to a corporation?  The argument that it is harder to raise funds if you are an LLC as opposed to a corporation does not carry much sway nowadays.  The fact is that it is extremely difficult, even in the best economic environment, to raise financing from third party investors.  If you are fortunate enough to find investors, it is unlikely they would be dissuaded by the fact that the business is an LLC as opposed to a corporation.  Remember, the highly flexible nature of the LLC allows the members to bring in investors with different economic and voting rights, and the LLC is so common place it is rarely a reason investors will be uninterested in your business.   

In sum, the Operating Agreement is a contract among the members of the LLC, and therefore the members have the right to adjust the terms to fit their business needs, reflect the contributions of the members, and make the LLC attractive to potential investors. 

The final installment on this topic will discuss the operational simplicity and ease of use of the LLC. 




Disclaimer:  The discussions in this blog do not constitute legal advise nor create any attorney-client relationship.  You are urged to seek the advice of an experienced lawyer who can provide counsel with respect to your corporate/business law matters.