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Business Partners Should Talk About Breaking Up First

Handshake between business partners.

Talk about your business relationship, reduce it to a written agreement, sign it, then get to work with your partner.

When assisting business partners form their entities or when my litigation partner is consulting with me on a case I see the following scenario often:

A business partnership starts with a money person and an idea person. The idea person has a fantastic business plan and the money person has the cash. They think it is perfect. They rush to form a LLC or corporation, downloading an Operating Agreement or Bylaws from the Internet. It even might be worst, they do not even bother with a document. After that, they are running their business, but then several months into it they are fighting.

What do Business Partners Fight About?

Usually, they do not see eye-to-eye on major business decisions.  Decisions like:

  1. how much money should each person contribute;
  2. who has the authority to sign checks or what is the dollar limit each partner has for contract obligations;
  3. where should we locate our offices;
  4. when do we pay ourselves;
  5. what happens when one of us wants to leave; and
  6. so many other issues …

Business owners hate hearing this from their attorneys: slow down! They should be deliberative in their collaboration with their business partner. I sometimes remind people that getting a business partner is basically getting married. Also partnering with a friend is different than being a friend, you sometimes do not know their work ethic. This is why we urge business owners to get things in writing with their partners.

The goal when drafting Operating Agreements, Bylaws, and employment agreements* should be what are the processes that governs decision-making, what happens when there is disagreement, or if an owner wants to leave, etc. … Basically, preempt the fights by setting up contractual arrangements. *By the way, if an owner of a business wants to contribute work instead of capital, then the partners should consider an employment agreement. It is solely not just for contract law purposes, but for tax and accounting issues.

Business partners think that their idea will be a money-maker and that their partner is going to make it happen.  They fail to calculate that even in success that their business partner may have other ideas on the direction of the business.  There is nothing wrong with differences of opinion, but when decision-making is paralyzed it could stop the business from moving forward. Further, for its employees, vendors, and service-providers, knowledge of an ongoing dispute amongst the business owners can make them question the survivability of the business.

Protect your Business Relationship by Communicating

It is easy. Talk about it, come to an agreement, and then get it in writing before the business starts. Many people just want us attorneys to give them their documents or download their own forms for the Internet. They think it saves them time and money.  I’d contend that is the wrong way to look at it. The time and money spent on your governing documents is an investment in the relationship. They are a contractual foundation.

If not, you are just pushing disputes to a later date. Consider that when the money has been spent, you’ve worked countless days and nights, and now you are arguing.  Then you realize all you have for your contract rights is a poorly drafted document … or worst yet, you don’t have one at all.  So do yourself a favor, have the conversation now and plan for the future.  Communicating when you are on good terms with a partner is easier, then when you are fighting.

DISCLAIMER: This post discusses general legal issues, but does not constitute legal advice in any respect.  No reader should act or refrain from acting based on information contained in the post without seeking the advice of  an attorney in the relevant jurisdiction.  Hew & Bordenave, LLLP expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post.

What’s with All this Paperwork, Part VI: Authorization Forms

Today’s Draw the Law will be simple, as I am working to get my enewsletter out as well.  Interested in finding out what my practice is about or what else I am up to?  Send me a message and I will add you to the subscription list.  Even if you ever get tired of my newsletter you can always unsubscribe as the service I use is CAN-SPAM Act compliant.  Anyway, let’s get to it.
In last week’s post I discussed notice, minutes, and written consent.  This week I will talk about authorization forms.  This is another piece of paper you will find in a situation with multiple shareholders and officers.  Notice a trend about corporate formality and recordkeeping?

What is an Authorization Form?

This question and this post would be better put into context if I discuss today’s paper in the terms of an “Authorization of Treasurer to Open and Use Accounts” form, which might be called something else depending on who is doing the drafting, but for all effect it authorizes the person who is the treasurer to open bank accounts on behalf of the business as well as other types of financial accounts.

There is no single correct form as this all depends on what the agreement among the board was on what powers were granted in the treasurer.  The authorization can be as wide or as narrow as the corporate body wants to make it.   The point is remember long ago when I discussed agents acting on behalf of the principal.  In this case, the treasurer is an agent of the corporation, who is the principal.  We all know that corporation is a legal person, but as it is not living person it must act through its agents, namely the officers and directors.

Generally, most financial institutions dealing with your corporation’s treasurer will want to see an authorization form and to have it on record as does your corporation’s owners.  Why?  Accountability.  Typically, in these authorization forms some kind of power is being granted.  In the case of the treasurer, it tends to be able to not only open bank accounts, but to also use the money in them.  Therefore, take a look at today’s “Practical Last Word” for addressing this issue.

How Specific Can These Forms Be?

They can be very specific.  In many ways, you can consider them an instruction to how the officers, directors, employees, and other agents of the corporation are to behave. Once again using the issue of the treasurer and bank account.  Instead of a general authority to open and use banks may be you have it so that other officers, employees, and agents can endorse checks (and other instruments) for deposit purposes only.  However, when the corporation has to pay out may be the treasurer can sign out checks that under $5,000.00, but for anything over it requires both the president’s and the treasure’s signatures.  May be the account is a checking account, may be it is for petty cash.  Bottom line: choices need to be made about how you want your organization to look like and operate, but you also need to work with professionals, such as financiers, accountants, attorneys, bank employees to make sure that what you decide on the inside is matched by conduct with outside third parties.

Practical Last Word

In theory, a written agreement should give you a right of recovery against the bad treasurer who abuses their authority.  However, typically the bad treasurer has run off with your corporation’s funds and you cannot find them.  So once again, an attorney can draft safeguards and protocols into your bylaws, employee agreements, etc . . . but it is up to you to enforce them and to watch out who you partner with.  In addition, work with your fellow founders to create checks and balances on the authorities granted when divvying up duties.  Finally, you may want to ask yourself can you trust this person with the money?  If you find yourself trying to have your attorney draft as many safety measures of accounting for the money, multiple signatures needed, and that the treasurer is only allowed to open a bank account with a small amount of money do you really want to be working with that person?

*Disclaimer:  This post discusses general legal issues, but does not constitute legal advice in any respect.  No reader should act or refrain from acting based on information contained herein without seeking the advice of counsel in the relevant jurisdiction.  Ryan K. Hew, Attorney At Law, LLLC expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post.

 

What’s with All this Paperwork V: Corporate Records

In last week’s post I covered some unique features of an operating agreement.  This week, continuing on our tour of paperwork that startups and small business owners should be familiar with, we go back to corporate paperwork.  Today, I will talk about three general documents that you will repeatedly see running a corporation.  They are Notice, Minutes, and Consent documents.

The Purpose of Creating These Documents

Recall that bylaws are a series of rules that the owners of the corporation, the shareholders, agree to be bound to when running the corporation.  Among these various rules you will discover how meetings are to be announced, what can or cannot be done in a meeting, what constitutes quorum, and a variety of other matters that shareholders and directors must know being a part of the corporation.  For instance, recall that shareholders are not directors.  The shareholders select directors to run the company.  In this vein, the delegated powers between shareholders, directors, and officers may be different from corporation to corporation, and the only way you would know is by reading the bylaws.

Therefore, the bylaws become important for what is considered Notice for Shareholders’ Meetings and Directors’ Meetings.  Further, minutes are used to record the meetings.  Lastly, sometimes instead of holding meetings may be the group will decide to act through signed consent forms.

Sticking to the rules is important because if you remember way back when I started talking about limited liability these documents are a part of the separate entity feature that shows that the people running the corporation are separate from the entity.  The lack of good corporate records and following your bylaws could make the shareholders’ personal assets vulnerable to a creditor or subject to IRS challenges to the legitimacy of the corporation or transactions.

For brevity purposes I will mainly focus on corporate records from the viewpoint of shareholders, as typically in a small startup these shareholders are also the directors that run the company. Let me take each one in turn now.

Giving Notice

So bylaws, dictated by state law, will tell you how to give proper notice of a shareholders meeting.  Why is it important for you to do this correctly?  If proper notice isn’t given to a shareholder, that affected shareholder may have a claim and further the actions taken at the meeting may be null.  Meaning you will have to redo the meeting all over again to take the same action.  Many small corporations like to play politics when a fellow founder and shareholder is not living up expectations by not giving them notice.  This is a big mistake. Like it or not, as a shareholder they are entitled to proper notice of a meeting.

Further, notice that Notice means something particular in corporate law.  Generally, it is in writing, and can be delivered through a variety of means, and finally the manner of delivery will change the timing of effectiveness.

Minutes

At a shareholders meeting the minutes serve to memorialize the actions taken at the meeting. Usually, if there is a position of Secretary, it is their role to record what was said and decided upon so that it serves as a record.  What should be noted is what your bylaws say about quorum, if they default to what the law says, then a majority of shares is considered quorum.  This need not always be the case, but you want to be familiar with your own bylaws and especially quorum.  You may have given proper notice to all the shareholders, but due to unique bylaws the shareholders that show up may not be enough for quorum or to take action.  It all depends.

*This is not legal advice, just for practical purposes: For my minutes, for smaller corporations, I like to put the names of the shareholders at the top, how they appeared for the meeting (in-person, phone, or if you allow via internet), and sometimes their share amounts to see if you have quorum. The main thing is accurately recording what took place, which is why the minutes are usually never approved right then and there, as the secretary preps them for a following meeting for approval.  Once the minutes are approved they are kept with the other corporate records.

Written Consent

Sometimes, you don’t want to hold a meeting for everything.  Thus written consents step in to save your time.  This is especially important for startup corporations, where the founders cannot be burdened to call a meeting for every non-controversial issue to act.  Moreover, with the advent of Internet and tech companies, there may be shareholders in Hawaii, California, and Washington of a single company.  Therefore, it is best to act through written consent, especially when there is agreement among all the shareholders.

However, even if all the shareholders do agree, going back to what I mentioned earlier in this post, you still want to record your acts to be in corporate compliance.  Also they are great tools to deal with after the fact that you messed up on Notice, and did not have a proper annual meeting.  Having all the shareholders sign a consent form will serve to fill the gap of the messed meeting.

*Disclaimer:  This post discusses general legal issues, but does not constitute legal advice in any respect.  No reader should act or refrain from acting based on information contained herein without seeking the advice of counsel in the relevant jurisdiction.  Ryan K. Hew, Attorney At Law, LLLC expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post.

What’s with all this Paperwork? Part III Corporate Bylaws

Last week’s post was about the differences between the internal documents of bylaws and operating agreements, and what their purpose is as opposed to the Articles documents.  This week and next, I will take a closer look at the in-depth documents, bylaws and operating agreements, separately and mention a couple things that startups and small businesses should know about bylaws.

Adopting Bylaws are Required along with Certain Provisions

Recall last week that I mentioned as opposed to a LLC’s operating agreement, that a corporation’s incorporators or board of directors MUST adopt initial bylaws for the corporation.  However, what is also required are certain provisions that control how shareholders and directors behave with regard to the corporation.  Further, there are provisions that the owners of the company may consider.

*The Difference Between “May” and “Shall”

I don’t normally give grammar lessons on my blog, but when it comes to business law, especially corporate documents, many people get bored, confused, (sometimes angry), at the tedium of the words we use.  Thus the need for clarity in the matter.

Without getting into the mechanical linguistics of it all, when “shall” is used it is something that you MUST do, whereas “may” gives you the option of doing the act.  I am going to use an example when it comes to Annual Meetings.

You Must Have Annual Meetings, but You May or May Not State the Place of the Meetings

What does that mean?  Let me show you the relevant statute and break it down:

(a)  A corporation shall hold a meeting of shareholders annually at a time stated in or fixed in accordance with the bylaws.

(b)  Annual shareholders’ meetings may be held in or out of this State at the place stated in or fixed in accordance with the bylaws.  If no place is stated in or fixed in accordance with the bylaws, annual meetings shall be held at the corporation’s principal office.  Notwithstanding the foregoing, the bylaws may authorize the board of directors, in its sole discretion, to determine that the annual meeting shall not be held at any place, but may instead be held solely by means of remote communication as authorized under subsection (c).

So notice in section (a) it states that a corporation shall hold a meeting of shareholders each yeah and that the bylaws shall state that time.   However, notice in section (b) it states that these shareholders’ annual meetings may be in Hawaii or not, and that the bylaws may state this place. However, if you do not state a place it shall be the corporation’s principal office.

Please note that is just part of the “Meetings” statute as it is to the Hawaii Business Corporation Act.   What you should take away from it is that there are some provisions required in bylaws and there are others that you have flexibility with.

Why is this Relevant for People Starting a Business?

Yes, paperwork is tedious, but it also creates accountability and a method of controlling your business.  More often than not with a start-up there is the idea person, the money person, and the person who can engineer/produce/implement the idea.  With three people involved there has to be a way to control how the interact.  Further, once the business develops, the goal may be to seek more investment, and thus new additional owners of the corporation (shareholders) join the entity.  Thus the need for bylaws to dictate how this all operates.

Some Other Typical Provisions that Appear in the Bylaws

These other provisions are in no particular order, and some may or may not appear in the bylaws.  Further some of them may be required, and others just appear as it is customary.  The point for a business owner using a corporation should know that some of these things appear in your bylaws, the way you govern your business.

Sample Subjects of Bylaw Provisions:

  1. Special Meetings (as opposed to the Annual Meetings)
  2. Required Officers, Duties of Officers
  3. Record Date (this refers to what date a record reflects what shareholders are entitled to notice of a shareholders’ meeting)
  4. Number if Directors, Director qualifications and Duties
  5. Notice (how notice is given for certain circumstances)
  6. Stock Certificate Signatures
  7. Restriction on Transfer of Stock
  8. Shareholder Agreements

There are other provisions that more often than not appear in bylaws, but this is just meant as a sample.  Finally, please take heed you should consider seeking an expert’s help when drafting your bylaws, as this is a foundational document of your corporation.  I have seen many founders wanting to start fast and adopting poor or wrong bylaws, and then requiring “cleanup” work, which is often more costly and time-consuming after the fact of initial adoption.

*Disclaimer:  This post discusses general legal issues, but does not constitute legal advice in any respect.  No reader should act or refrain from acting based on information contained herein without seeking the advice of counsel in the relevant jurisdiction.  Ryan K. Hew, Attorney At Law, LLLC expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post.

 

What’s with all this Paperwork? Part II Bylaws and Operating Agreements, Keep it In the House!

Quick reminder before I dive into this week’s Draw the Law, I have a talk under Pacific New Media on Social Media and that Law.  Check out the info here.
So last week I talked about Articles of Incorporation versus Articles of Organization.  Recall, that the former were for corporations, and the latter was for LLCs.  In addition, remember that these series of posts are meant to deal with a startup person’s guide to all the paperwork they have to deal with when forming a company.

This week is all about bylaws and operating agreements, which are internal documents as opposed to last week’s documents, where are what get filed with a state agency, so become a matter of public record.  One of the easiest analogies to get is that if the Articles are the birth certificate, then the bylaws or operating agreement represents the skeleton of the company.

Are these Documents Public?

As stated above, these documents are internal. That being said the government and institutions may require you to reveal them in order to do business.  Certain trades or industries a regulating agency may require the filing of your bylaws or operating agreement to do business. For example, to obtain a liquor license in the City and County of Honolulu a LLC must submit its operating agreement.  In addition, financial institutions, like banks (this is just an example of one local bank and is NOT an endorsement of them) will require you to submit your bylaws or operating agreement in order to open a business account.  Finally, for startups venture capital firms, potential investors, etc . . . will definitely want a look at your business structure and may even require you to change them to protect their interest.

So What are These Documents Used For?

Both bylaws and operating agreements are internal documents that guide the behavior among shareholders and members, respectively, as well as officers, directors, and managers.   The documents are contract, agreed upon by the owners at the onset of the company.   Therefore, if the rules are not abided by an offending shareholder, member, officer, director, or manager a breach of contract claim may exist for them not following the rules.

Do I Need to Have these Documents?

This question should show how LLCs are more flexible whereas corporations are more formal.  You must adopt an initial set of bylaws for the corporation you form if you are an incorporator or part of the board of director.  However, with the LLC you may enter an operating agreement with fellow co-members, if you don’t you will have the statute as your default rules for guiding the LLC.  This is one of several differences between the corporate structure versus that of a limited liability company.  As stated in previous posts and my law talk, corporations tend to be more formal, but sought after for startups due to investment and tax benefits whereas LLCs are used for their flexibility and ability to be less formal (thus less administrative costs), and that these differences can be seen when drafting these internal documents.

A Word on Negotiating and Drafting these Documents

Many times, startups and small business co-members like to create their own bylaws or operating agreement without an attorney.  What should be realized about this is that in both cases there are certain provisions that are not waivable.  Further, due to the formality of the corporation and the flexibility of the LLC the distribution of ownership, allocation of profit and losses, etc . . . is not necessarily something that should be done without advice and consulting.

In addition, many of people try to only use one attorney to draft a document that reflects the interest of people coming together for an endeavor. What they don’t realize is that is basically intended to be a long-term business deal and sometimes genuine disagreements amongst the starting owners of the company may force each of them to get an individual attorney to negotiate on their behalf.  Another misconception many people have is that they must adopt Robert’s Rules to guide their meetings in their bylaws or operating agreement because they see it on television or see another organization using them.  Remember I said that these documents are a contract?  Consider that if you fail to live up to your own agreed upon rules you are in breach of the company’s internal guiding document.  Finally, consider that these documents are NOT set in stone and operating agreements and bylaws usually have a method to amend them. Whether the process to amend them is easy or not is up to you.

On a personal note, I would like to impart I have dealt with several companies where the people started out friends and thought they could have an informal situation and ignored their own bylaws or operating agreement.  Then a falling out occurred, and well let’s just it was ugly. Others have tried to draft them on their own with disastrous results not realizing further legal work needs to be done when they want to sell the business or attract investors.

So next week, I will tackle bylaws, and some specifics about them, and the following week after that I will tackle operating agreements.

*Disclaimer:  This post discusses general legal issues, but does not constitute legal advice in any respect.  No reader should act or refrain from acting based on information contained herein without seeking the advice of counsel in the relevant jurisdiction.  Ryan K. Hew, Attorney At Law, LLLC expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post.