BUSINESS LEGAL CHECKUP

Transcription

1 BUSINESS LEGAL CHECKUP 9060 W. Cheyenne Avenue, Suite A, Las Vegas, Nevada Phone: Fax:

2 MEMORANDUM TO: FROM: RE: Business Owners S. Craig Stone II, Esq. Business Legal Checkup As an existing or potential business owner, it is important that you spend your valuable time in planning, marketing, managing and operating your business, and not be distracted by legal disputes, injuries and damage claims. One of the means to avoid these distractions is to use preventive legal practices. These practices will help you to avoid many legal problems and strengthen your defenses for the unavoidable problems. As a result, you will reduce your total legal costs and remain focused on your first priority, the business. A typical preventive practice is to perform a periodic legal checkup of your business health. This checkup is similar to a financial audit or a physical exam, and involves an analysis of your general business environment and specific circumstances to identify potential legal pitfalls so that you may make advance arrangements to eliminate or minimize your legal risks. We have prepared this Memorandum for you to perform a self-assessment of your business legal health. Our hope is that it will provoke some thought about common legal problems and risks, and trigger a desire to address these problems and risks in advance. GENERAL ORGANIZATION OF BUSINESS ENTITY Which business entity is best suited to the particular business operations and the desired tax structure of the owners? o Sole proprietorship o Partnership (General, Limited, Limited Liability, etc.) o Limited Liability Company o Corporation ( C vs. S ) What is the best jurisdiction to organize the business entity vs. the best jurisdiction to operate the business? o State o Federal o Foreign 9060 W. Cheyenne Avenue, Suite A, Las Vegas, Nevada Phone: Fax:

3 Page No. 2 Does the business have properly prepared organizational documents that are appropriate to the particular business entity? o Articles of incorporation or articles of organization o Partnership agreement (general vs. limited) o Bylaws or operating agreement o Stock or member certificates o Initial minutes, etc. o Trade name filings Are all of the above documents kept in a safe, secure fireproof location and do the authorized persons have ready access to the same? Have all of the legal formalities for the business been observed since formation: o Regular shareholder / partner / member meetings held? o Regular board of directors or management meetings held? o Updated minutes, resolutions, written consents, etc. to the organizational documents prepared? o Franchise and business taxes paid? o Business charter with the appropriate state agency (e.g., secretary of state) renewed annually? o Directors and officers elected or appointed annually? o Indemnification agreements executed? o Required business licenses and permits obtained and renewed? o Securities properly registered with state and federal agencies? Does the business have a detailed, appropriate mechanism for resolving internal disputes between business owners (majority vs. minority shareholders/members), directors, and officers? How are the relations between the business owners, directors and officers? Does the business have a current, written list of all important future dates, such as expirations, stock option exercise deadlines, maturities, tax filing or payment dates or other due dates? 9060 W. Cheyenne Avenue, Suite A, Las Vegas, Nevada Phone: Fax:

4 Page No. 3 Does the business have a team of professional advisors to assist in the business operations and long-term planning? o Business attorney o Accountant o Insurance agent (property & casualty / employee benefit / health / life & disability) o Investment or financial advisor o Business banker o Business coach EMPLOYMENT ISSUES Have the business workers been properly classified as either employees or independent contractors? Are the business employees at will or subject to an implied employment contract? Does the business have written and adequate employment agreements for key personnel? Independent contractor agreements for non-employee workers? Does the business have written and adequate non-competition agreements with key personnel? Does the business have written and adequate non-disclosure agreements with all personnel that have access to client/customer lists and other proprietary trade or confidential business information? Does the business have written and adequate policies to prevent nondiscrimination in the hiring, promoting and terminating of employees? Does the business verify prior work experience or references for job applicants? Does the business have and maintain an employee manual? If so, does it contain adequate disclaimers and other language to limit liability for specific issues? Does the business have a written and adequate policy for disciplining or terminating employees? Is the policy consistently and firmly applied? Does the business have or need a drug or alcohol testing policy? 9060 W. Cheyenne Avenue, Suite A, Las Vegas, Nevada Phone: Fax:

5 Page No. 4 Is the business workplace a safe haven from violence or other inappropriate behaviors? Does the business have written and adequate policies to prevent sexual / racial / religious harassment in the workplace? Is the business compliant with the various state and federal employment practices laws, including: o State wage and hour requirements o State workers compensation / unemployment compensation requirements o Immigration requirements o OSHA o American With Disabilities Act o Family Medical Leave Act o Title VII Does the business provide references for former employees? Does the business provide employee benefits? If so, are the benefits tax efficient and fully utilized? o Profit sharing plan o 401(k) o Simple IRA o SEP IRA o Deferred compensation plan o Group health insurance / disability / life o Key man insurance o Stock purchase / bonus plan COMPETITION Does the business have any proprietary or confidential information (client lists, procedures, etc.) or trade secrets that need to be protected? Does the business have a trade or service mark that is specific to the business that may need to be registered with state or federal agencies? Have you reviewed both the business and any competitor s websites for possible metatag violations? 9060 W. Cheyenne Avenue, Suite A, Las Vegas, Nevada Phone: Fax:

6 Page No. 5 Is the business pricing structure competitive in the market? Has the business performed a competitive evaluation to determine its market share or opportunities? practices? Does the business engage in or ever been subjected to unfair trade or antitrust CONTRACT ISSUES Are the business vital relationships documented with current, accurate and clear written contracts? Are the business contracts being signed by the proper persons and in their authorized capacity in order to avoid personal liability for business debts? Does the business have any commercial real estate or equipment leases? If so, when were the leases last reviewed? Does the business have any sales, vendor, supplier or customer contracts? If so, when were the contracts last reviewed? reviewed? Does the business have any labor agreements? If so, when were the agreements last Does the business have any agreements or contract with governmental agencies? If so, when were the contracts last reviewed and is the business subject to any additional regulations or restrictions that do not apply to non-government parties? Do any of the business existing agreements or contracts need to be revised to reflect current terms or changes in the relationship? Do the business existing agreements or contracts include resolution of disputes through arbitration or other alternative dispute resolution? FINANCES Does the business have a complete and current financial statement which lists in detail all of the business assets and liabilities? 9060 W. Cheyenne Avenue, Suite A, Las Vegas, Nevada Phone: Fax:

7 Page No. 6 Does the business have a complete and current inventory of all of physical assets, sufficient to support a claim in the event of a loss? Has the business performed any financial planning, including: o Cash-flow analysis? o Capital requirements? o Break-even point? o Budgeting? Is the business excess capital (non-operating liquid assets) both safe and productive? Are the business debts and liabilities currently in excess of the business assets or expected income? Has the business reviewed its income tax situation with an accountant or other professional tax advisor to see if the total tax obligations could be reduced? Does the business have all of its federal, state and local tax records for the past four years, including tax returns, supporting documentation, evidence of filing, etc.? Does the business owe any federal, state or local income taxes, real estate taxes, personal property taxes, etc.? Does the business have all of the receipts for the purchase or improvement of capital assets, i.e., real estate, vehicles, equipment, etc.? RISK MANAGEMENT ASSET PROTECTION Does the business work in a profession or industry that has a higher incidence of lawsuits, e.g. attorney, doctor, accountant, architect, real estate contractor or developer, etc.? Is the business subject to any industry rules or regulations, e.g., consumer protection laws, product testing and liability, labor laws, etc.? Does the business have assets that present a higher risk of liability than other assets, i.e., commercial real estate as compared to cash or marketable securities? business? Does the business have assets that are critical to the income or success of the 9060 W. Cheyenne Avenue, Suite A, Las Vegas, Nevada Phone: Fax:

8 Page No. 7 Are there currently any actual or potential claims which have been or could be asserted against the business? Has the business recently reviewed the liability limits, coverages and exceptions on the following insurance policies: o Liability (general and umbrella) o Worker s compensation o Property and casualty (fire, theft, comprehensive) o Business automobile (bodily injury, property damage, public liability) o Business interruption o Liability umbrella o Errors & omissions o Malpractice Does the business have any financial or liability exposures that are insurable but are not presently insured? risks? Does the business have any assets that may be subject to environmental hazards or Are any of the business owners named as guarantors on leases, contracts, or other potential business obligations? Does the business have proper and adequate written indemnities for obligations arising from third parties? BUSINESS SUCCESSION Does the business have a buy-sell agreement with its owners in the event of a disability, divorce, death or dissolution (bankruptcy) of an owner? Does the business or its owners have adequate capital or resources to purchase the interest of an owner? Has the business ever been appraised to determine its liquidation or going concern value in the event an owner wants to sell his or her interest? Will a business owner s interest be subject to probate or intestate succession at the time of the owner s death? 9060 W. Cheyenne Avenue, Suite A, Las Vegas, Nevada Phone: Fax:

9 Page No. 8 Who would be the natural or preferred successors to the business ownership and/or management? What is the best mechanism to transfer ownership / management of the business to the preferred successors: o Buy-Sell agreement o Asset sale of the business o Stock sale of the business o Merger and acquisition o Employee Stock Ownership Plan ( ESOP ) o Stock options (qualified vs. non-qualified) o Initial public offering o Charitable bailout How soon do the owners plan to transfer ownership in the business? Does the business have a succession planning team of advisors who can maximize the business value, design and structure the transfer, and close the transaction? CONCLUSION Have any of the above questions caused you to consider taking some action or making some further review? We hope the above questions were helpful in the assessment of the business legal health. As always, please do not hesitate to contact us if you have any questions or comments regarding any of the above issues or other legal matters W. Cheyenne Avenue, Suite A, Las Vegas, Nevada Phone: Fax: