Anti-Assignment and Change of Control Contract Provisions in the Sale of a Business

By on May 9, 2013

Contract(275)A company’s key contracts represent a valuable business asset. Thus, it’s crucial that the contracts remain in force as a business changes hands from the seller to the buyer when the business is sold.

Asset Sales and Equity Sales

Although deal lawyers generally describe their practice as involving “mergers and acquisitions,” the sale of a small or medium-sized business is usually structured as either an equity sale or an asset sale. In an equity sale, the buyer buys the equity from the owner(s) of the target company — stock in the case of a corporation and membership interests in the case of a limited liability company. The business is transferred to the new owners, corporate or limited liability company entity and all, and the target becomes a wholly-owned subsidiary of the buyer. There is no change in the status of the target entity itself, and its contracts, assets, and liabilities remain with the entity. (more…)

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Resource of the Week: Feedly

By on May 1, 2013

Friday web bitsIt’s official. Feedly is awesome. I’ve experimented with various RSS aggregators on occasion, but since I stumbled upon Google Reader several years ago, nothing has come along to convince me to change. It’s not that Google Reader has a great user interface or fun bells and whistles. But it does serve up content in an organized way that makes sense for me.

Then Google announced it was pulling the plug on the reader. With just a couple months to go before Google Reader’s final days, I recently decided that I’d better start looking around for a replacement. Since people have gone over to Feedly in droves, I decided to give it a try.

Although I’d downloaded the Feedly app long ago, I’d never taken the trouble to move RSS feeds to it. But to my great surprise, Feedly has rolled out the welcome mat for Google Reader users, so I was able to easily import all my feeds and keep the organization I’ve spent so much time tweaking.

Unlike Google Reader, Feedly does have a great user interface and organizes and displays content in a much more attractive format. If you haven’t tried it out, what are you waiting for?

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So, By Renting I Am Insulated From Environmental Problems, Right?

By on March 20, 2013

Exclamation_Point(275)So you have been following previous posts about environmental liability associated with real estate and because you are a renter, you have ignored it all because you don’t own it. Come on, be honest, you think you don’t have any problems right? Well, you might have lots of problems, but, maybe, just maybe, you should re-read the previous posts to figure out if you can insulate yourself. Of course that is the purpose of this post, so you could just read this instead.

Do, Re, Mi.

So let’s start at the beginning, which is always a good place to start (a reference to the Sound of Music). The law imposes liability upon, among others, current “owners and operators” of a facility. An operator is one who is “operating such facility.” In plain terms, that means a lessee.

Now, CERCLA is a joint and several liability statute without regard to fault. This means, with respect to the current owners or operators, that just the act of being there may impose liability for the clean up of the property, even if you didn’t cause it. So, if you lease a property, you could be liable for the past transgressions of previous owners and lessees. That could be problematic, so what’s a renter to do. (more…)

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Buying Your First Building

By on January 28, 2013

House(275)You’ve decided to buy instead of rent. You found a building you couldn’t refuse in today’s market. Now you can stop paying the landlord and generate some equity. But who should own it? It sounded simple when you decided to buy, but suddenly there are a lot of questions.

Your banker wants to keep it simple and just have the business buy the building. Your accountant likes the idea of you and your wife owning the property to benefit from the “at risk rules.” An estate planning website suggests you put it in your revocable trust. Lastly, a financial planner tells you to protect the building with a separate corporation. How do you sort through it all?

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Do LLC’s Have “Corporate Formalities”?

By on January 22, 2013

Pen(275)You just formed a new LLC and your attorney says, “We recommend an annual retainer; and for this retainer we serve as your registered agent and assure that you meet the necessary ‘company formalities.’” Before you write that check allow us to give you a little education on this often misunderstood subject.

Why can’t you be the registered agent? Why would you pay an attorney to be your registered agent? Well, the law firm proposal often goes like this: “If you ever get sued, the sheriff will serve us [the law firm] and not you … which will save you from being embarrassed by a sheriff’s visit.”

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Voting by Email – A Risky Proposition For Non-Profits

By on January 8, 2013

Meeting(275)Email can save us from meetings, round robin telephone calls, faxes and conference calls. It’s especially time saving when we want to avoid the traditional meeting for something that seems so simple or mundane. We avoid getting in the car driving to a meeting just to say “I move that we approve the carpet cleaning contract.”

That’s silly, when you could just send out an e-mail and ask for everyone’s vote. It might read: “Is everyone OK with Bob’s carpet cleaning bid? We can get a really good deal if we sign with him today. Let me know ASAP.” You get a quick response and business is accomplished right from your desk, or your smartphone.

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Leases: Limiting Your Risk & Understanding Your Personal Guarantee

By on December 6, 2012

lease: limiting your riskHave you ever read your lease? Of course you read the parts about paying rent, the term and your option to renew. But you probably sped by the indemnification and insurance provisions. You ran it all by your insurance agent and she “took care of it.” That’s the last you remember. I heartily suggest that you dust off that lease and find out what it really says about risks and insurance. Commercial leases are the worst, i.e. the poorest written, document I review. They are seemingly cut and pasted together by the landlord or its attorney with no real understanding of allocating risk. “Risk” is the one area of your lease that shouldn’t be adversarial with your landlord.

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When Must Employers Give Time Off for Voting?

By on October 29, 2012

uncle sam wants you to vote

State Laws Frequently Require Employers to Allow Employees to Miss Some Working Time on Election Day to Vote

With Election Day coming soon, employers may confront employee requests for time off to vote. Some employees may even expect their employer to allow them to miss work with pay while they go to the polls. The laws regarding time off from work to vote vary by state. Most states require employers to allow employees to miss working time to vote, only if their workers have less than a stated number of uninterupted non-working hours while the polls are open. Some states oblige employers to pay their employees that take statutory voting leave, but others do not. Employers that violate these laws face criminal prosecution for a misdemeanor, which may subject them to fines and incarceration of a year or less. (more…)

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Missouri Supreme Court Rewrites and Enforces Non-Compete Agreement

By on September 11, 2012

Ball and chainThe Supreme Court Avoids the Opportunity to Apply Its Prior Reasoning Critical of Overly Broad Non-Competition Agreements

The Court decides cases involving non-competition and non-solicitation agreements only infrequently.  In 2006,  the Missouri Supreme Court balanced the right of a former employee to compete against a former employer versus the employer’s right to use non-competition agreements as protection against unfair competition in Healthcare Services of the Ozarks, Inc. v. Copeland, 198 S.W.3d 604 (Mo. 2006) (en banc), Copeland decision.  The court recognized two types of unfair competition–the former employee’s either misuse of  the employer’s trade secrets or the employee’s misuse of customer contacts developed at the former employer’s expense. (more…)

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Resource of the Week: LawHelp Interactive

By on August 29, 2012

business tools

Looking for free legal forms? Like the idea of automated forms where you answer questions and the document is customized for you? That’s the service LawHelp Interactive provides.

Here’s how the service describes itself:

LawHelp Interactive helps you fill out legal forms. Answer a series of questions and print your legal form.

The forms are free and have been created by nonprofit legal aid programs and courts. They are for use by legal aid advocates, pro bono lawyers, and people representing themselves.

LawHelp Interactive is a project of Pro Bono Net, a nonprofit that increases access to justice through technology.

It sounds like a great project. Have you used the service? What do you think?

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