BUSINESS LAW
Small businesses and their owners face numerous issues and
decisions that pertain to the company’s dealings. Quite
often, the business’ owners, officers and directors
are not overly experienced in planning for and handling the
legal affairs of the business, and frequently they do as best
they can, all while hoping for the best. The problem is that,
eventually, the company will likely end up in a situation
where it will need to get the help of an attorney.
Our firm is experienced in providing a broad range of transactional
and litigation oriented legal services for our clients. It
is our broad base of experience that enables our firm to capably
represent your company’s needs. Current and former clients
include, among others, real estate developers, physicians,
real estate companies, retail merchants, contractors, investment
companies, insurance companies, non-profit foundations, telecommunications
companies, and technology companies.
We provide the following services for our clients and their
companies:
• selection and formation of business entities;
• preparing, reviewing and evaluating contracts and
agreements;
• general counsel on business related matters; and
• litigation services.
Agreements & Contracts
Once a new business is formed, regardless of the type of
structure selected, there should be, at a minimum, some sort
of a written agreement that details the basic guidelines of
how the company is going to operate. For corporations or limited
liability companies these documents are, respectively, known
as Bylaws or Operating Agreements. These agreements contain
basic provisions regarding how management is selected, management's
duties, owner's rights, meeting and notice requirements, basic
distribution clauses, and other basic provisions. Each new
corporation we form comes with a basic set of Bylaws. Similarly,
each new limited liability company we create is delivered
with a basic Operating Agreement. However, for a reasonable
fee, we will prepare a more complex set of Bylaws or Operating
Agreement if a client's situation so warrants.
Additionally, we are also able to prepare other needed agreements
in conjunction with the formation of a new entity. For instances
where the basic Bylaws or Operating Agreement may not be completely
adequate, we may recommend the preparation of a Shareholders
Agreement (for corporations) or a Membership Agreement (for
LLCs). These agreements delve into much greater detail and
set forth the parties concurrence on matters not set forth
in the Bylaws or Operating Agreement.
For partnerships, whether a general partnership or limited
partnership, we always recommend having a Partnership Agreement.
The Partnership Agreement will spell out the terms of the
partnership, covering issues like management, partners' shares,
profit distributions, partners' duties and rights, and other
related topics. Partnership Agreements range from the very
basic to extremely complex, all depending upon the intricacy
of the agreements reached by the partners. Likewise, we also
recommend that any joint venture have a detailed Joint Venture
Agreement to protect the rights of our clients.
A Buy-Sell Agreement is a common agreement (or a set of provisions
included within another agreement) that is often utilized
with closely-held business ventures. Typically, the Buy-Sell
Agreement will provide an exit strategy whereby a partner,
fellow shareholder, co-member, or the company itself, will
buy the ownership interests of one or more of the business'
owners. The Buy-Sell Agreement can set forth the conditions
and events that will trigger the applicability of this agreement.
The Buy-Sell Agreement can even set the price for the transaction,
or lay out an agreed upon process of how the price is to be
determined.
We can also provide your company with any needed Employment
Agreements, Non-Disclosure Agreements, Confidentiality Agreements,
Independent Contractor Agreements, or any other contract that
may be required. The importance of having a properly drafted
contract is two-fold. First, having a well-drafted agreement
should adequately reflect your company’s expectations
from the proposed transaction. Second, and perhaps more important,
the agreement should provide you with as much protection as
possible in the event that the deal does not proceed as anticipated.
It is often said that written contracts exist for dealing
with the situations where everything does not necessarily
work out as planned. All too often, small businesses neglect
to place enough importance on having a well-prepared and detailed
written agreement that looks after the company’s best
interest. This is typically because the business owner believes
that it is conducting business with someone who is as honorable,
reasonable and decent as the business owner, and as such,
if there are any problems in the future, the two will be able
to easily resolve any dilemma that may arise. In a perfect
world, this would be the case. However, practically speaking,
this is not what happens. In such instances, a small business’
second major need of legal services is created: litigation.
Litigation
Litigation exists as a means to resolve any dispute, which
for small businesses, usually stems from some aspect of their
business dealings. Litigation typically involves the use of
the court system through the filing of a lawsuit. Further,
it can take a number of years to reach the final resolution
of the dispute, which ultimately increases the costs for all
of the involved parties. As such, it is becoming more commonplace
for disputes to be resolved through arbitration (which is
more like a streamlined and expedited trial not conducted
at the court by a judge) or mediation (which is a formalized
settlement conference conducted by a third-party). The use
of arbitration or mediation may allow a company to resolve
its dispute in a more timely and less-expensive manner.
Resident Agent Services
The State of Nevada requires every corporation, LLC,...,
to have a registered agent for service of process. We provide
this service for the initial year with some of our entity
formation packages. We can also continue to serve as a company's
resident agent in each subsequent year.
Maintenance of Records
Every business entity should at least hold one meeting every
year. Further, Minutes (i.e. notes) for these meetings should
be maintained in due course. We can assist with the scheduling,
proper notification to all required parties, and minute taking
for each of the company's meetings. Moreover, we recommend
that this be done in a timely manner to help preserve any
personal liability protection offered to the business' owners.
Because of the possibility of being sued, it is of the utmost
importance for small businesses, which are typically corporations
or limited-liability companies, to do what is needed to preserve
the liability protections that exist for the business owners,
officers, directors, and the like. This is commonly referred
to as preserving the “corporate veil” of personal
liability protection. Under the existing law in Nevada, this
corporate veil can be pierced in instances where a business’
owner, officer or director provides a personal guarantee of
a particular obligation or by the application of the legal
"alter ego" doctrine.1 In a nutshell, one of the
best ways to avoid the application of the alter ego doctrine
is to ensure that the company is operated and maintained as
a separate operation and entity from a business owner’s
personal and other business holdings. Further, this separation
of business and personal interests can be shown by keeping
detailed and timely records, including having an up to date
minute book for the company.
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