Just Walk Away

By Andrew M. Apfelberg, Rutter Hobbs & Davidoff

Whether an acquisition, lease or contract with a vendor, every business transaction has its own particular pacing that develops. It is important to maintain that pace in order to effectively take the transaction from concept to signed agreement. However, when the parties involved focus exclusively on maintaining the deal’s momentum, they tend to ignore red flags that pop up, as well as their own inherent reactions to these cautionary signs. Getting caught up in the adrenaline rush of trying to close a deal is, in fact, a great way to wind up either with a transaction that does not deliver the opportunity you originally sought—or with a big bill for a deal you had to abort at the last minute.

Let me give you a case in point. Recently, a client wanted to acquire all the assets of a business as well as the property on which the business was located. The price was fantastic and the sales broker assured my client that the prospect was a rare opportunity. But the seller then delivered a skimpy purchase agreement, and put significant pressure on my client to review and sign the document within 24 hours of receipt. After a late-night and rather frank conversation with me, my client did not sign the document, and asked instead for a short no-shop period during which she could conduct her due diligence. The seller refused the no-shop restriction but, nonetheless, my client decided to proceed with negotiating the deal.

A day or two into the due diligence process, it came to light that one of the seller’s key employees did not hold a necessary license and had, instead, worked out a side-deal with the seller. My client instructed me to work around the problem by inserting an indemnification provision into the purchase agreement. The seller then provided some self-prepared financial statements, but would not give my client access to the back-up data or the seller’s previously filed tax returns. My client felt she could trust the seller and took him—and his financials—at face value.

In the meantime, I revised the purchase agreement and prepared the balance of the missing documents typically associated with this type of transaction. In response, the seller refused to accept any of my proposed changes to the language of his purchase agreement and was hesitant to agree to the terms of the other documents. He insisted that the sale was “as-is” and that if my client did not like it, there was another eager buyer in the wings who had already offered more money. My client the requested that I “trim down” the documents in order to appease the seller.

The transaction wound up not closing at the eleventh hour. After all the documents were laboriously negotiated and revised, one of the selling members refused to sign the non-competition agreement.
My client was livid. She had incurred significant legal, accounting and other fees, and invested more than eight weeks into the deal. She felt cheated, and looked for someone to blame—but ultimately concluded that the blame fell squarely on her shoulders. She was so eager to close the deal that she ignored obvious warning signs, failed to investigate red flags that popped up and refused to follow her “gut” instinct, which told her that the deal seemed questionable.

Unfortunately, my client ignored the following ten warning signals, and ultimately paid the price:
1) The deal seemed too good to be true.
2) The seller insisted on an overly quick closing of the transaction.
3) There was hesitancy in providing requested due diligence items in responding to transaction documents.
4) The records or documents reviewed in the due diligence process were incomplete and disorganized.
5) The other side was unwilling (or unable) to develop a transition plan for post-closing of the transaction.
6) The other side insisted on preparing the transaction documents, when the custom is for the buyer to prepare them.
7) The seller refused to negotiate the business terms or language of the agreements.
8) There was insistence on an “as-is” sale, and a refusal to offer any material representations or warranties.
9) The other side exerted significant pressure to close despite the existence of outstanding questions.
10) The seller had a questionable reputation within the community.

While the existence of one or more of these items does not necessarily mean that a deal is not a good one, it does mean that you should take the time to gather additional information and carefully analyze it before proceeding with the transaction. By continuously looking out for these red flags, you will inherently slow the momentum of a deal down just enough to analyze the information and issues presented without jeopardizing the pacing of the negotiations.

Above all, listen to your instinctive responses to these warning signs. In most cases, you inherently know what is right and what is wrong, and what makes sense and what does not. Never be afraid to walk away from a deal that simply does not feel right. There is almost always another opportunity just around the corner. When asked what his most profitable transactions were, a highly successful real estate developer answered without hesitation: “The ones that I didn’t do.”

About the Author: Andrew M. Apfelberg is a corporate transactional attorney for privately held middle-market companies. He represents clients as their day-to-day general counsel and in significant transactions such as mergers and acquisitions, financings, joint ventures, licensing, entity formation, agreements between shareholders and the establishment of manufacturing facilities in Mexico. He is a partner of Rutter Hobbs & Davidoff Incorporated, a full service law firm in Century City (www.rutterhobbs.com). The firm provides comprehensive transactional and litigation services to companies, their principals and entrepreneurs. Apfelberg’s clients benefit from his strong business and finance background gained from working for investment banks prior to attending law school. This experience enables him to more effectively structure transactions and negotiate agreements to maximize the return to the client and increase the likelihood of getting the deal closed. He was awarded the most coveted AV rating through Martindale-Hubbell, and was selected as a “Super Lawyer” in the field of Business Law by Law & Politics in 2005, 2006, 2007, 2008 and 2009.

Advertisements

Penny Wise and Pound Foolish:

“Saving Costs” During Contract Formation Can Mean Big Litigation Bills Later

By Andrew M. Apfelberg, Rutter Hobbs & Davidoff

In today’s uncertain financial climate, many businesspeople have deliberately avoided involving their attorneys in the negotiation and documentation of deals. Reasons given have included, “Well, it is not that big of a transaction,” or, “It seems simple enough, so there is no need to consult with a lawyer.” But the real factor driving the decision to avoid legal involvement is one thing and one thing only: money.

While no one ever relishes the idea of paying a lawyer, the degree to which businesspeople are circumventing legal fees has dramatically increased during these less-than-booming economic times. For many middle-market companies, spending money to have a lawyer draft or review a business agreement is often perceived as a luxury that can be foregone when belts need to be tightened. Initially, eliminating $5,000 to $10,000 in legal fees sounds like a fantastic idea. However, what many businesspeople fail to consider is that they will inevitably have to deal with these agreements over the long-term and, without assistance from an attorney, significant fees can be incurred if a business deal goes south—ultimately costing a company thousands of dollars.

Take, for example, the example of Acme Skin Care Company*. In earlier, better economic times, Acme and Star Manufacturing Inc. signed an agreement drafted by Acme’s lawyer that explained Star’s relationship with Acme as an “exclusive supplier” of certain component elements of Acme’s products. After several years, a principal of Star met with Acme’s president to discuss the continuing relationship. By then, times were tougher financially, and in order to keep costs down Acme left its lawyer out of those discussions. Instead, in a private meeting with Star, Acme’s president hand-wrote what he believed to be a minor modification to the company’s original agreement with Star. Then, he and Star signed the handwritten “modification.”

After approximately one year, Acme’s relationship with Star began to sour. Star began demanding strict “compliance” with the “modification,” which Star asserted was a wholly separate deal. Acme decided to terminate its relationship with Star by providing 30 days notice as permitted under their original agreement. Star promptly filed suit, claiming the “modification” was a separate agreement for a fixed 10-year term with no provision allowing for early termination. Star claimed $10 million in damages, leaving Acme no choice but to defend the lawsuit. In the first few months of litigation alone, Acme spent more than $50,000 to defend against Star’s claims. Today, Acme’s counsel estimates that it will spend at least another $150,000 before the case is closed, with no guarantee of success.

So, how exactly did Acme get into this position? The problem lies with the actual wording of the “modification.” Read literally, that document—consisting of only five short paragraphs—said nothing about Acme’s prior agreement with Star and contained no mention of any right to terminate the relationship on 30 days notice or otherwise. On the other hand, it did mention a 10-year term and contained other language suggesting the “modification” was, in fact, a separate agreement.

Although Acme may have originally intended otherwise, the document read in a way that was favorable to Star, and, not surprisingly, Star then claimed that the document contained clear contract language that accurately stated the intention of the parties.

The difficulty for Acme in defending against Star was that California courts—and many state courts applying similar statutes—try to interpret contracts based solely on the written language contained in the document without looking to other evidence. The California Civil Code, for instance, provides that:

• The language of a contract is to govern its interpretation, if the language is clear and explicit, and does not involve an absurdity. §1638.
• When a contract is reduced to writing, the intention of the parties is to be ascertained by the writing alone, if possible; . . . §1639.

Most states adhere strictly to written terms in order to discourage situations like the one in which Acme now finds itself, where the document says one thing but the opposite party argues it means another. By holding parties to the apparent meaning of the specific words used in the document, the courts force parties during contract formation to express clearly and completely their intent in writing within the actual four corners of the document.

Does this mean that Acme stands no chance of success in the litigation with Star? No, there are additional rules of contract interpretation other than the “bare bones” rules. But the important lesson to be learned is that it has already cost Acme five to 10 times more to litigate its dispute with Star than it would have cost to have a lawyer simply draft or review the “modification” in the first place.

To avoid the kind of problem Acme now faces, a company must make sure that both parties clearly understand the general terms of a business transaction. The parties may even want to prepare an explicitly non-binding term sheet outlining the potential deal, before immediately hiring a lawyer.

Next, a company should discuss with the attorney, in detail, its relationship with the other party, explaining past history; identifying any prior agreements; explaining specific goals for the transaction and desired strategy for negotiation; and identifying each material term of the deal. After a formal contract is prepared, both sides must read it front to back, and word for word. A lawyer can then explain any difficult-to-understand terms and define words that may have legal significance beyond their typical, everyday meaning.

Above all, business executives must remember that if a deal goes south, they will be held to what the document actually says, and not to what they may have “meant” or “understood.” And if both parties involved decide later that they want to alter the deal, they must ensure that each change is put in writing and reviewed by a lawyer before it is signed.

As for costs, wouldn’t any savvy businessperson rather spend $5,000 now rather than $200,000 down the line?

* Company names have been changed to protect privacy

About the Author: Andrew M. Apfelberg is a corporate transactional attorney for privately held middle-market companies. He represents clients as their day-to-day general counsel and in significant transactions such as mergers and acquisitions, financings, joint ventures, licensing, entity formation, agreements between shareholders and the establishment of manufacturing facilities in Mexico. He is a partner of Rutter Hobbs & Davidoff Incorporated, a full service law firm in Century City (www.rutterhobbs.com). The firm provides comprehensive transactional and litigation services to companies, their principals and entrepreneurs. Apfelberg’s clients benefit from his strong business and finance background gained from working for investment banks prior to attending law school. This experience enables him to more effectively structure transactions and negotiate agreements to maximize the return to the client and increase the likelihood of getting the deal closed. He was awarded the most coveted AV rating through Martindale-Hubbell, and was selected as a “Super Lawyer” in the field of Business Law by Law & Politics in 2005, 2006, 2007, 2008 and 2009.

How Businesses Build Credit

You may not realize it at the time, but your business credit is just as important to the overall health of your business as your personal credit is to your private life. Many creative people will rush headlong into starting their own business without any inkling on how to create a healthy business credit profile. Let’s take a look at a few basic steps you need to take to give your new business the healthy start it needs to get off the ground.

Separation is Key

There is a reason why so many companies out there are listed as corporations. When a company becomes a corporation, it essentially becomes its own person with its own credit profile and history. Even if your own personal credit is sterling, you want to create a LLC or limited liability company so that in case your business fails, your own personal credit will remain untouched. You should never, ever run a business based on your own personal credit profile. The failure rate, even for well run businesses, is simply too high and the cost is far too great.

Stick to the Plan

Next, you need a first class business plan. If you aren’t familiar with business plans, they are like an outline for your business. Before you can lay a single brick or write your first line of code for your business website, you need to have a viable, successful business on paper. You will need to outline every expense, from overhead to employee salaries to incidentals. You will need to go into detail about the product or service you will be providing and how you plan on making a profit. A viable business plan is absolutely essential to getting the loans, and the credit, you need to start your business.

Cross your T’s and Dot Your I’s

Going hand in hand with your business plan is making sure that you have all of the necessary permits and legal permissions you need to start your business. If you are planning an online business, make sure that you are allowed to run it out of your home. You could have the best written business plan in the world but if you can’t get your business licensed, it is a non starter and no bank will even consider extending you the credit you need.

Time to Get Assessing

Before you head off to your lender of choice, you will need to perform a credit assessment. A credit assessment is an evaluation that you can perform that will give you an idea of the standards you need to meet to get the necessary financing. These assessments don’t take very long and they can give you a goal to shoot for so you don’t waste time talking to a lender who is simply going to turn you down.

Once you’ve gotten an initial investment from a lender, it is up to you to maintain a good credit score. Vendors will be much more willing to do business with you if you have a small debt load, and it will be easier to convince other investors to come on board if you are paying your bills on time. Getting and maintaining a good business credit score is all about preparation and execution of your business plan.

Mark Warner is a Legal Research Analyst for RealDealDocs.com. RealDealDocs gives you insider access to millions of legal documents online drafted by the top law firms in the US that you can download, edit and print. Search For Free at http://www.RealDealDocs.com.

Make Sure That Your Business is Protected

It can be very rewarding and exciting to run your own business in the growing city of Coeur d’Alene. The area is beautiful and it is always more fun to work for yourself than for someone else. Unfortunately, along with the greater freedom and profits you gain by being your own boss, comes greater responsibility as well.

For example, as the owner you can be held liable for any accidents or mishaps that the business experiences or causes. These might include employee injuries, accounting errors and any number of customer complaints. You will also need a business license to operate, proper insurance and separate bank accounts for the business to make sure that it remains a separate entity from your personal assets.

As a business owner, you will also need to make sure that the contracts you use are sound because they are supposed to protect your business and stand up in court if needed. And sometimes, you may also need to enlist collection agencies or lawyers to help collect outstanding customer debts.

Whether you are just trying to start your own business or are looking for some help with an existing business, a court d’Alene business lawyer can give you the knowledge and tools you need to protect your interests.

One of the first steps in starting a business is getting a business license. However, before you even apply for a business license, you need to determine what kind of business you are creating. You can choose between forming a corporation, limited and general partnerships, limited liability corporations (LLC), limited liability partnerships (LLP), or tax exempt organizations. Each type of business entity has unique advantages that are suited for different kinds of business types. As you discuss the goals and plans you have for your business with a Coeur d’Alene business lawyer, they will be able to recommend the best kind of business entity for your needs.

A good business lawyer can also draw up all your contracts, defend you in a court of law and write letters on your behalf if you have a few customers who are not paying their bills. Both my brother-in-law and my husband have used business lawyers to get their businesses running because they want to be confident that such a precious investment is legal and secure. If you are the owner, you are in charge and you are the one who has to deal with any operating troubles. Help yourself sleep easy by hiring a Coeur d’Alene lawyer to watch out for your business.

Beck and Poorman, LLC (http://www.beck-poorman.com/business_law.html) can provide you with an experienced Coeur d’Alene business lawyer. Whether you need some advice on how to get going or you need legal advice on other business issues, they can help. The author, Art Gib, is a freelance writer.

Introduction To Copyright

In the United States, copyright law protects creators from having their works stolen or used without their permission. In the event that a work registered with the U.S. Copyright Office is stolen or infringed upon, the creator can pursue legal action. To ensure that your work is fully protected, you must have at least a basic understanding of copyright and how it applies to you and your work.

Copyright is the protection afforded to all creators of published and unpublished work, including the authors of artistic, dramatic, literary, and musical works. In addition, when you register your work with the U.S. Copyright Office, your copyright is protected both in the United States and in those countries that have a copyright protection agreement with the U.S.

Copyright allows you total control over your work: With exclusive copyright, you can reproduce your work; distribute and sell your creation; publicly perform the work; and publicly display your work.

According to U.S. law, copyright is immediately established the moment a work is created. For example, if you write a book, you legally hold exclusive copyrights to that book, unless you wrote the book on a work-for-hire basis in which you agreed to transfer all copyrights to another individual or business.

Transferring all copyrights is a common practice today, but the transfer is only valid if there is a written agreement that is signed by the original author or a legal representative acting on his behalf. However, if you’re giving another individual nonexclusive rights to a work, you do not need a written agreement for it to be valid.

For all works created after January 1, 1978, works are automatically protected by copyright law from the moment of creation until 70 years after the author’s death. Those works that are created on a work-for-hire basis or that are created by an anonymous author or an author with a pseudonym are protected (unless the author’s name appears in records of the U.S. Copyright Office) for a period of 95 years from the work’s publication or for a period of 120 years from the date of its creation, whichever proves to be shorter.

Because not all works are eligible for protection under copyright law, it’s important that you know what types of works are protected: Those works that are protected by. copyright law include: literary, musical, dramatic, pictorial, graphic, sculptural, architectural, choreographic, and audiovisual works as well as sound recordings, motion pictures, and pantomimes.

There are numerous benefits to registering an eligible work with the U.S. Copyright Office. In addition to receiving a certificate of registration, your copyright will automatically become a part of public record. Additionally, should someone use your work without your permission, you can file suit against that individual and may be entitled to both statutory damages and attorney’s fees.

Registering for a copyright with the U.S. Copyright Office is a fairly straightforward process. In addition to filling out an application form, you must pay an application fee and provide a copy, or a nonrefundable deposit, of your work to the Copyright Office. Failing to send all of the materials together in the same package will likely result in having your package sent back to you.

Learn more about How to Copyright materials, where to get Copyright forms and how to use the Copyright Sign.

How to Use Associations and Organizations Membership to Get New Clients for Your Business?

Most people join organization and associations but never utilize their benefits. As a serious business owner, and we at CD&C Business & Legal Form Processing Services, LLC (“CD&C”) would like to think we fall in that category, growing your business should be at the top of your priorities. Joining a business association/organization could help you get new clients/customers and possibly increase your business sales and recognition. Organization and associations offers several benefits that may enhance your business. Some of the benefits includes but are not limited to the following:

Workshops, seminars, webinars, conferences and teleconferences. These benefits allow you to network with your peers, open discussions about what is going on in your industry, what others are doing and possibly put you in contact with potential clients/customers.

Webinars and teleconferences are often offered online and by telephone where you can listen and participate in the comfort of your home. Often time you are allowed to record the teleconferences so that you can view and listen to them whenever convenient for you.

Attending organization and associations meetings keeps you informed of the changes in your industry such as new products and services, discussion of new ideas and a review on how the industry is doing in general.

Forums/Notice boards provide a place for you and your peers to meet on a regular basis and give feedback about their experiences in your business. Forum/Notice boards sometimes offer insider and time saving tips as well as answers to questions from people who are active in your line of business.

Newsletters and industry articles, subscribing to association and organization newsletters will keep you inform on news updates. Make sure to take the time to read their newsletters and articles to keep up on the trends in your business, what your competition is doing and in most cases you will get feedback from your client/customers about what they think about the business and its services.
Always read archived newsletters and articles to learn about things that worked and didn’t work in the past for your line of business. Past issues will also give a history of your business and answers to frequently asked questions.

Get involved, volunteer with your association and organizations. Join committees. You may consider contributing to their newsletters this will give you exposure for your business and you may be viewed as an expert in your industry. Joining committees will also allow you to make decisions that will affect your business and a voice in the changes to your industry.

Other benefits include the following:

Member discounts – before shopping for business supplies, you should check your organizations and associations and their business affiliates for availability of discounts.

Some organizations will lobby to protect your business industry in state legislature and state courts.

Take advantage of their continuous training and educational programs.

Most of them offer directory listing where you should consider advertising your services. Keep in mind that potential clients go to the organization and associations to find help.

Some organization and associations like the National Notary Association offers personal identity theft protection for their members.

If they have a logo, ask permission to use it on your website and marketing materials. It can create credibility for your clients/customers.

Organizations and associations establish professional standards, give your business credibility, keep you updated on legislative news & activities, and enhance recognition of your profession. They can also increase awareness & value in the market place.

By Cordina A. Charvis a Member of CD&C Business & Legal Form Processing Services, LLC, http://www.cdcformsprocessing.com  Virtual Paralegal Firm. © 2007. All rights reserved.

What Is ‘Memorandum of Association’ in Company Formation?

Among the four essential documents to be produced to the Companies House (that company formation in the UK necessitates), there is Memorandum of Association. This article of the process of starting a company includes naming, registered office, the object of the company and its liability. A short description of all these points is given here.

Regarding the name of the company, it is directed that the name should not be similar to that of an existing company. Companies House has necessary arrangement for checking the name. Name checking can be done online. You can do it by logging on to the website of Companies House or it can be done with the help of a service provider. The name of the company also should not be confusing or very much similar to other company.

Another important thing to be kept in mind while naming a company is that if it is a limited company then the word ‘limited’ should be there in the name. The abbreviated form of the word (ltd) will suffice. After the naming, there comes the registered office.

Company formation in the UK necessitates one to establish an office that is to be used for official correspondence. The registered office should be in the places authorized by the Companies House. It should be in England if the company is to operate there. And it should be in Wales or Scotland if the company is under the jurisdiction of these places.

After the naming of the company and the registered office, it is necessary to provide the concerned authority with the objective of the company. It is an important part of company formation process and the applicant should clearly mention why he wants to open the company and why he wants to run the business. And finally he is to provide information on the last clause of Memorandum of Association – the liability.

The Author is an experienced writer presently writing on topic like Company Formation UK for taking business services to establish a company.