Formation or Purchase.  An individual or group comes together to commercialize an idea or to take advantage of a market opportunity through the formation of a business enterprise or the purchase of an ongoing business enterprise.

A team of business lawyers and paralegals at Bennett Boehning & Clary LLP provides the following services during this the Formation Phase:

 

• Business Plan Review.  Your business plan is the most critical document in your business enterprise.  Due to the large number of businesses we advise, the business lawyers at BB&C have experience reviewing business plans in a wide variety of goods and service industries.  We can assist you in preparing your business plan or give you open and direct feedback about your business plan.  At a minimum, your business plan should contain:
  • An Introduction and Executive Summary
  • Product or Service
    • Description of the product or service
    • A SWOT analysis of the product or service
  • Market Analysis
    • A summary of the market opportunity and market size
    • An analysis of the competition
    • A summary of the marketing plan and method of distribution
  • Management Analysis
    • A summary of the executive team and identification of any gaps in competency to operate the business
  • Financial Analysis
    • Proforma list of start up costs
    • Proforma cash flow statements for the first 2 years of operation
    • Summary of sources and amounts of equity and debt to fund the start up and operations during the first 2 years

 

• Entity Selection and Formation.  Once you have determined that the concept of the business is viable, the next step is creating a business entity through whichc to own and operate the enterprise.  There are multiple different entity types and jurisdictions to choose from when forming an entity.  Our attorneys will advise you and consult with your tax advisors in the choice of entity such as C corporation, S corporation, limited liability company, general partnership, limited partnership, limited liability partnership or joint venture.   Once the appropriate entity is selected, we will
  • Draft and file the Articles of Incorporation or Certificate of Incorporation to file with the appropriate Secretary of State or Division of Corporations depending on the jurisdiction of organization of the entity
  • Prepare the Bylaws, Operating Agreement or Partnership Agreement or Joint Venture Agreement as appropriate considering the capital structure objectives as discussed below.
  • Prepare organizational resolutions of the members, shareholders, partners

 

In the event you are purchasing an existing business or merging your business with another business, we can assist you as well.  Please visit the section Buying and Selling a Business / Mergers and Acquisitions for more information.  We have the capability to deal with virtually any business transaction you may encounter.

• Capital Structure.  Broadly, capital structuring means the way a company finances its operations through a combination of equity and debt.  During the formation of the business enterprise, this means the number, classes and preferences of shares authorized for issuance by your entity.  If you anticipate bringing in investors either at formation or shortly thereafter, the Articles of Incorporation or Organization and Bylaws or Operating Agreement will be much different than if you plan to own the business enterprise solely on your own for the foreseeable future.  For information on Private Offerings or Private Placements of securities, please see the Operations section below.

• Buy-Sell Agreement Structuring.  Buy-sell agreements are an essential planning tool for either the transfer during life or transfer at death of one or more of the owners’ interest in the business.  When we prepare buy-sell agreements for clients we consider the particular needs of your business such as:
  • Voluntary lifetime transfers by an owner who wants to sell his or her interest in the business to either the remaining owners or a third party
  • Involuntary lifetime transfers due to an owner facing bankruptcy, divorce, financial hardship or judgment or an owner involuntarily leaving the employment of the company triggering a put option of his shares back to the company
  • Death triggered transfers
  • Valuation of the business whether by formula or annually agreed upon valuation by the owners of the company
  • For more information on buy-sell agreements please see our Business Succession Planning section

Operation of the business enterprise includes:

• Maintenance of Corporate Documents.  After the entity to run your business enterprise is formed, it must be maintained.  BB&C offers a Corporate Representation Service where BB&C will:
  • Serve as the registered agent of your entity and therefore receive all notice from the Secretary of State regarding required filings or all notices of lawsuits filed against your company
  • In the event your business needs to qualify to do business in another jurisdiction we will arrange and maintain those foreign jurisdiction qualifications and filings as well

• Private Placement of Securities.  Once your capital structure is finished, we can help you carry out the issuance of securities – whether corporate stock, limited liability company units or membership interests, limited partnership interests, debt instruments or promissory notes.  During this process we will:
  • Determine the exemptions for sale of the securities such as:
    • Intrastate offering exemption
    • Section 4(2) of the Securities Act
    • Regulation D Offerings
      • Rule 504
      • Rule 505
      • Rule 506
  • Obtain a Central Index Key (CIK) for your business from the Securities and Exchange Commission (SEC) and file your Form D with the SEC and make the appropriate State filings
  • Prepare the private placement memorandum
  • Prepare or revise the organizing documents such as the Articles of Incorporation or Organization and Bylaws or Operating Agreement to conform with the terms of the exempt securities offering
  • Prepare the Subscription Agreement
  • Prepare the Investor Questionnaire
  • Carry out the issuance of the securities to the investors pursuant to the subscription agreements including tracking the issuance of the stock, placing appropriate legends on the stock certificates and providing transaction transcripts to the company and each investor

• Drafting and Negotiating Contracts.  BB&C can help you draft and negotiate contracts for the operation of your business.  Examples include:
  • Distribution Agreements
  • Vendor Agreements
  • Service Agreements
  • In-Home Sales Contracts
  • Construction Contracts
  • Real Property Leases
  • Personal Property Leases
  • Software License Agreements and Software Support and Maintenance Agreements
  • Terms and Conditions for the sale of goods
  • Express Warranties and Disclaimers of Warranties

• Financing Transactions.  BB&C represents borrowers and lenders on all sizes of financing transactions including senior secured, subordinate or mezzanine financings and unsecured financings.  We represent lenders in loan participation agreements and we know the market terms for the documents making up a financing transaction including the following:
  • Term Sheets
  • Loan Agreements
  • Participation Agreements
  • Promissory Notes
  • Security Agreements
  • Subordination Agreements
  • Guarantees
  • Mortgages
  • Assignments of Rents, Leases or Accounts Receivable
  • Intercreditor Agreements
  • Landlord Waiver
  • Personal Guaranty Agreements
  • Pledge Agreements
  • Deposit Account Control Agreements
  • UCC filings

• Employee or Independent Contractor Matters.
  • Incentive Compensation Plans
  • Phantom Stock Plans
  • Employee Policy Handbooks
  • Employment Agreements for both founders and traditional employees
  • Employee Noncompetition Agreements
  • Employee Policy Manuals
  • Independent Contractor Agreements

• Litigation counsel.  During the operation of a business, odds are you will be a party to a lawsuit or an arbitration proceeding.  The lawyers at BB&C frequently litigate commercial cases for our clients
  • We have experience litigating the following types of cases:
    • Insurance claims
    • Employee Noncompetition Agreements
    • Breach of contracts for the purchase and sale of goods
    • Breach of partnership and joint venture agreements
  • Please see our Litigation Section for more information

Sale, Succession or Dissolution.  The last phase in the life cycle of a business is the sale or dissolution of the business enterprise.  We can advise you through

• Sale.  Please see Buy or Selling a Business/Mergers & Acquisitions section of our website to learn more about our representation of businesses both in preparation for, during and after the sale of a business enterprise.

• Business Succession Planning.  An alternative to selling a business is transitioning ownership and management of the business to either the next generation or to key employee(s).  Please see our Business Succession section of our website for more information on how our team of business lawyers and estate planning layers can advise you in preparation for, during and after implementing a succession plan.

• Dissolution.  When a business has run its course and it is time to liquidate and dissolve the business entity, we can help you in this process.  Failure to follow the appropriate steps can lead to the assessment of penalties and interest by taxing authorities and lawsuits from creditors.  During the dissolution process, we can:
  • Assist you in preparing a plan and agreement for dissolution
  • Communicate with creditors about the liquidation of the business
  • Prepare resolutions and formalize the plan and agreement for dissolution
  • Provide the appropriate notices to taxing authorities and other regulatory agencies as appropriate for the business enterprise