New Year Resolution for your Business - Get a Business Plan

Category:Business Law and Planning

I my representation of small businesses and their owners, a self-evident truth is that those with a business plan are more likely to succeed. While attorneys don't develop business plans, we are often involved in transactions that would benefit from a business plan having been in place (notice that I didn't say being created) such as investor financing, bank financing, mergers, employee equity plans, acquisitions.

Since the creation of business plans in out of my core area of practice, but essential for my clients, a introductory resource I recommend is bplans.com. The site is packed with Q&A about business plans, tutorials for the entrepreneurs starting a business, income and expense calculators, and business plans for purchase or free download (free of course being key to a startup). There is also bplans blog, which offers commentary on startups, small business, business planning and growth strategy.

Look for future posts on those areas of a business plan where your business attorney can offer the most resources.

Check out that Employee - Hiring Checklist

Category: Business Law and Planning

The new year tends to be a time when business owners scrutinize practices and procedures to improve productivity in the new year. I came across the posting Employment Law: Hiring Checklist on Lady Bird Deed Blog, which caught my eye in the opener:

"2006 ended with one of my small business clients running into a flury of employee problems. Employees on drugs, allegations of sexual misconduct in the workplace and theft to name a few. "

Wouldn't it be great if you never hired the people that you might end up in court about? The checklist is practical advice. I emphasize the use of background checks to avoid (or at least be knowledgeable about) potential problems, and strongly urge that if you don't have an employee handbook, you create one (as it may be your saving grace if you do end up in a lawsuit.)

Business Owners Need Business Plans (plural)

Category: Business Law and Planning

In the summer, the pace slows down, and it can be an excellent time for business owners to look at (1) where they are, (2) where they want to be, and (3) how to get there. In that vein, two relevant articles I just received from James Jimenez, CPA, of Fass and Associates, in Parsippany, New Jersey. The first "A Business Plan: Why you need one to run your business", and the second "Do you have a business survival plan?".

So instead of scooting home early one lazy day, why not sit down and try to see your business from an outsider's perspective, and map out where you want to be and how you want to get there. I raise business planning from time to time, because it is the kind of thing that we all know that we should do, but can't always make the time to do. So I hope this strikes you as an ideal moment to take stock.

A Business Plan: Why You Need One to Run Your Business

If you have an existing business and especially if you are starting a new venture, you need a business plan to guide and direct your future. Here are some tips for creating a plan that your business will actually find useful.

First, own your plan. It’s your plan, and you need to own it. It’s not something you can completely delegate to a consultant. You must be an active participant in its development even if you have assistance in the process.

It should communicate. Your plan should tell your story, and it should do so in a compelling way. Why does your business exist? What are your marketing, operational, and financial strategies? What are your goals, and how will you measure progress? What are the tasks to be performed, and who will do them?

It should bring focus and alignment. Your plan should spell out the responsibilities of your entire management team. Everyone should know his or her respective role and how it contributes to your plan for business success.

It should guide your business. Execution is the key. Your plan should be more than a means to obtain funding. It should be the tool to run your business. You might need a shorter and tighter version of your plan to make this happen.

It should be evolving. The “planning process” is as important as the plan itself. Things change quickly so your plan needs to be flexible and adaptive.

It should hold you accountable. Measure and track your progress, and use the plan to hold your management team accountable. Discipline and control need to be part of the process if you expect to achieve the objectives stated in your plan.

Wayne Gretzky, when asked for the reason for his success said, “Some people skate to where the puck is; I skate to where the puck is going to be.” A good plan should help you do the same for your business.

Do you have a business survival plan?

A business without a succession plan might be a business without a future. A succession plan allows your business to continue if you leave the business for any reason: your retirement, disability, death, or just your decision to move on. Here are some basic steps you should take to help ensure the survival of your business.

Determine who will succeed you. Will it be family members, your business partners, your employees, or an outside buyer? Each choice requires a different plan. For example, if you are not the sole business owner, a buy-sell agreement may allow a smooth transition when a co-owner leaves.

Prepare a timeline. Barring death or disability, when and how do you plan to exit the business? Well before your planned departure, equip your successors with the skills and experience necessary to take over.

Maintain complete and accurate financial records. Your company’s financial history is essential to preparing a fair business valuation. An accurate valuation is important for several reasons:

• You deserve a fair price for your business.
• A buyer and his backers will want evidence that the purchase price is fair.
• Your company’s valuation may have to withstand IRS scrutiny.

Create a financing plan. Your plan might include life and disability insurance, an employee stock ownership plan, or a stock redemption plan. Whatever your plan, it should take your future financial needs into account and provide a method for your successors to meet those needs.

Surround yourself with a team of advisors. Your accountant, your attorney, your banker, and your insurance agent can each have an important role to play in completing your plan.

Business succession is a process, not an event. Failure to plan for an orderly transition can result in financial losses or even the loss of your business. A well-designed plan, on the other hand, can protect your family, your employees, your co-owners, and your customers.

Successful Family Business Succession Planning

Category: Business Law and Planning

I came across this interesting statistic about successful family business succession planning from Succession Planning and the Family Owned Business - Perspectives - Inside INdiana Business with Gerry Dick:

"The United States Small Business Administration reports the odds of surviving a transition from the founding generation to the next are a mere 30 percent. The figures are even more uninspiring for the third generation with survival rates at less than 20 percent. Given these odds, it makes sense for family business owners to begin treating the succession planning process much as they would treat retirement and estate planning. While each business succession is unique, there are some common misunderstandings that can bring added complexity to the transition of a family owned business."

I have found in my own practice that numerous issues can prevent a family business transition, including the value to the senior generation, the transfer of control, equalizing children who are not in the business, all against the backdrop of the emotional entanglements family members have.

The article highlights and expands on some points that can make family business succession planning more successful:

• The child wants to run the business and is capable of running it
• The family treats the succession like an arm's length transaction
• The heir has the liquidity to buy out the owner or the willingness and capability of borrowing from institutional lenders
• The transaction acknowledges parties beyond the seller and buyer
• Even though it’s in the family, the sale is a “business transaction”
• The seller’s involvement after the sale
  
  
  

Who's Going to Buy Your Business - You Need a Plan to Get Money in Hand

Category: Business Law and Planning

From the Puget Sound Business Journal: How to find the right buyer for your business :

The value and importance of estate planning are obvious. Preparing a will,
naming beneficiaries and establishing trusts may all be important steps in your
plan.

But if you are a business owner, the complexity of your estate planning increases substantially. Your heirs will be unable to enjoy the true value of your business unless you find and train the right successor well in advance.

According to the Small Business Administration, more than 40 percent of small businesses are facing the issue of ownership transfer or sale. Some business owners have family members who are willing and able to step in and take over. However, many do not. If this is the case, then your strategy probably involves selling your business. When the time comes to sell your business, recognize that all buyers are different, and finding the right one is the key to maximizing the value of your estate and ensuring the future success of your employees and customers. Follow these steps to find the right buyer for your business:

• Develop a high-quality and comprehensive document that describes your business and its background.
• Create a "profile" of the ideal buyer.
• Market the business proactively -- but confidentially.
• Screen buyers aggressively.
• Engage a team of trusted, experienced professionals to aid you in the process.

See the Article for more detailed information about the step for sale.

The Simple Buy-Sell Agreement is a Must - In Layman's Terms

Category: Business Law and Planning

If you have a business and have a partner (or many people with equitable interests) a simple, straight-forward agreement can allow you to retire, keep the business in the family, cash out your family if you die or become disabled, and avoid many an estate administration difficulties (or disasters). The agreement? The oft overcomplicated and mis-understood Buy-Sell.

Now, there are many situations where a Buy-Sell agreement needs to be highly customized and deal with unique fact patterns. But a good, solid, Buy-Sell Agreement really only needs to address what happens in one or more of the following situations:

• An owner wants to walk away/retire
• An owner is forced out for bad behavior (think of the Enron trial starting this week)
• An owner dies
• An owner becomes disabled

Some other considerations:

• Do you want to be partners with your partner's spouse? If not, you need to have a binding agreement that if your partner dies, their estate will sell, and you and the company will buy. Otherwise, welcome your new unintended partner (who likely knows nothing of your business, and will want to sell it at bargain basement prices to get cash) with open arms.
• Can you agree on a way to value your business? If not, can you agree on allowing a third party to value your business? If you can do either of these, you have overcome what is generally the greatest obstacle to preparing a Buy-Sell agreement.
• What can you afford to pay out of earnings to buy out your partner's interest? The answer to this question will create the loan repayment schedule. Another alternative is to fund the obligation with insurance.
• Should a partner be penalized for being "fired" or leaving within a certain time frame? If so, discount the value being paid in the event that a partner engages in "bad acts".

While these are certainly large questions, as long the partners are getting along reasonably well at the time that you asked them, you will likely find that it's easy reach a reasonable consensus. The ability to come to a consensus, and reduced it to writing while everyone is getting along (and is healthy and breathing) is the key to creating a simple Buy-Sell agreement that will allow your business and your family to succeed.

For another perspective - in layman's terms, look at this Kansas City Star article: Buy/sell agreement makes succession a success:

"One of the most important aspects of a buy/sell agreement is that it guarantees the purchase of the business interest for a fair price."

"As important as it is for business owners to tend to their day-to-day operations in order to have a successful enterprise, it’s equally important to institute quality succession planning. That often means having a team of specialists in the areas of tax law, accounting/valuation and insurance. If your business and family are a top priority, you really do not have an option."

Tis the Time For New Year's Resolutions

Category: Elder Law, Estate Planning, Business Law and Planning, Tax Law and Planning, Financial Planning

Ah, the presents have been opened, you have been eating cookies and leftovers for days, and the commute is remarkably smooth this week - it must be the week before New Years. With each New Year comes New Year's Resolutions - those things you are absolutely and positively going to do in 2006 (or meant to do in 2005 or 2004 - lets be honest). Some thoughts to consider for 2006's list:

• Don't have a Will, Power of Attorney or Living Will? Get one. Search through prior posts here for some consequences of failing to plan. See the article Make a will: Your #1 family New Year's resolution for more reasons to plan.
• Have a Will? Haven't looked at it in 5 years or more? Get it out, dust it off, and read it. Does it say what want? Do you understand it? If not, call an attorney and have it reviewed.
• Own a business? Get a business succession plan in place. Without a business succession plan, your family is likely to receive pennies on the dollar for the value of your business at your death.
• Got insurance? Review your insurance - health, disability, life, long-term care, property. Are you really covered for your needs? Do you understand your coverage? Have you had your insurance reviewed by a professional in the past 3 years or so? Insurance can be a large annual outlay - you should be sure you are getting the best return for your investment. Most professional insurance agents will give you a free review.
• Planning to retire? How are you financing your plan? A meeting with a financial planner may give you ideas as to how good of a job you are doing getting to where you want to be. Again, the meeting is likely to be free.
• Kids going to college? Do you have a plan beyond hoping that there will be enough equity in your house in interest rates stay low? Look into a 529 Plan (try savingforcollege.com for more information) . See what a financial planner has to say.
• Have an accountant? Can him or her and make a meeting to discuss your tax profile and ideas to reduce taxes - note that dropping a bag off at the office on April 8 is not a meeting. Your accountant is an expert,particularly with income taxes, those most likely to effect you. Why not take the time to reduce the governments share of your earnings? Call TODAY for last minute year end planning items (see Happy new year! Now, call your accountant )
• Don't have an accountant? Consider whether a tax professional could help you pay less. You still have time before December 31 to change your tax profile for 2005. (See 5 Year-End Tax Tips and Year-End Tax Tips from ABC News)
• Have seniors in your family? Consider how they are doing and ways you can help. Would Medicare D save them any money? Go the AARP website for tools to find out the answers. Could they use help with driving, cooking, housekeeping? Consider a service (and speak to your accountant about the tax deductions). Are they safe and secure in their homes? If not, consider alternates within the family and in the community.

None of these thoughts are sexy or exciting, but they do fall under the heading of things a responsible adult should be doing, and items high on this years New Years Resolutions (otherwise known as The Great To Do List).

Business Law and Business Planning Blog References

Category: Business Law and Planning

Some frequently updated Business Law and Business Planning Blogs:

Blawg Republic - Business Law News: An aggregator of recent postings from many excellent business law blogs.

Findlaw Legal News - Business: Agregator of recent news articles (AP, Reteurs, etc.) focusing on business law topics.

Topix.Net - Law News - Business Law: Business Law news continually updated from thousands of sources around the net.

How TV's CSI got computer forensics wrong

Category: Business Law and Planning, Miscellaneous Musings

Courtesy of the Date Forensics firm of PG Lewis & Associates, LLC:

"Good morning. Below is an amusing and accurate observation which points out that the hit TV show CSI did not follow forensically sound guidelines while investigating a hard drive. The brief piece also describes the procedural error’s implications in court.

How CSI got computer forensics wrong
OUT-LAW News, 17/11/2005

A team of computer forensic investigators has pointed out that a character in a recent episode of hit TV show CSI: Crime Scene Investigation failed to follow a basic rule of looking for evidence: don't switch on the computer.

Experts at CY4OR, based in Bury, England, praised CSI for bringing computer forensics to the forefront of public awareness; but they say it does little to reflect the correct and essential procedures that must be put in place when there is suspicion of criminal activity.

In the offending episode, chemistry boffin Greg Sanders (played by Eric Szmanda) walks on to a crime scene, turns on a nearby computer and begins accessing email. Bad move, says Joel Tobias, Managing Director of CY4OR. This is exactly what budding investigators must not do, he warns.

"Not only could this potentially damage evidence, any incriminating data that was uncovered would undoubtedly be thrown out of a court of law as the proper evidential procedures would not have been put in place," he said. "The evidential continuity would have been compromised and a criminal case could collapse."

The temptation for IT departments to become digital detectives and deal with a breach of security in house is understandable, says Tobias, as companies worry about investor confidence, company reputation and business in general. It can also be fun. However, there are a few basic steps to follow, to minimise exposure and resolve the situation as quickly as possible.

CY4OR's guide to crime scene investigations
1. Treat the matter seriously. Tell your legal team not your colleagues about your suspicions.

2. Do not inform your IT department. Instead, hire computer forensic experts.

Professional analysts from reputable companies adhere to ACPO (Association of Chief Police Officer) guidelines, can identify digital evidence quickly and ensure that it will stand up in court by following the correct procedures. They can even image your computers at night, to avoid inevitable discussions by the water cooler.

The principal of forensics which says that every contact leaves a trace cannot be emphasised enough, says Tobias. "There is a time and a place to leave it to the experts, and this is it," he warned."

Life Cycle of a Public Charity

Category: Business Law and Planning, Tax Law and Planning

Often a client approaches us to set up a charity. A public charity must benefit the public, that it, some objectively defined group of persons for a public purpose. Once formed, the charity must then apply for and receive recognition as a public charity - the most common are 501(c) charities, so called to refer to the Code section under which they are organized. For federal tax purposes, a person can only deduct contributions to an entity that has been recognized as a public charity by the IRS. Once formed and approved by the IRS, the public charity must comply with various reporting requirements. Of course, being a charity, the organization is also usually looking to minimize its legal and accounting expenses.

The IRS has taken some of the mystery out of forming and being a public charity through a section of its website called Life Cycle of a Public Charity.

"During its existence, a public charity has numerous interactions with the IRS - from filing an application for recognition of tax-exempt status, to filing the required annual information returns, to making changes in its mission and purpose. The IRS provides information, explanations, guides, forms and publications on all of these subjects - they are available through this IRS Web site. The illustration below provides an easy-to-use way of linking to the documents most charities will need as they proceed though the phases of their "life cycle."

There is also a one page a graphical depiction of the life cycle of the public charity, which includes functioning links back to various forms and publications.

Shareholder/Partnership Agreements: Creating a Buy-Sell Agreement

Category: Business Law and Planning

From Bplans Blog, and excellent essay on the value of a Buy-Sell Agreement, and the issues you need to think about in creating one.

"Think of a partnership agreement as a "prenuptial" agreement between you and your business partners. You don't expect to have the partnership break up, but you just never know what could happen down the road. "

The article focuses on a discussion of what valuation means in relationship of a Buy-Sell agreement, including different valuation approaches, and the need to revisit the approach taken as the business grows.

Qualified Retirement Plans for Solo Business Owners - The Solo Defined-Benefit Plan

Category: Business Law and Planning, Financial Planning

From Smartmoney.com: Tax Matters: The Solo Defined-Benefit Plan: "If you're the sole proprietor of a small business, you probably know that you've got some terrific options to choose from when it comes to setting up a tax-advantaged retirement account. But here's one you might not have thought of: a solo defined-benefit plan. These traditional pension plans have been around for years, but get relatively little attention compared with other retirement-savings plans. This shouldn't be the case, however, since solo DB plans allow people to contribute perhaps $100,000 a year.

The generous contribution limits make these plans worth serious consideration by people who are late to the retirement savings game and who are prepared to set aside serious dollars to make up for lost time. Sound familiar? Here's what you need to know. "

The article goes on to describe various retirement planning options for small business owners.

Move over .com - .eu is on the way

Category: Business Law and Planning

From CSC Flash: ".EU is a new domain extension that has been designed to provide a European identity for European Internet users in the domain name system. It was created to for use by European Trademark Holders, companies, public bodies, and individuals and is expected to bring many new opportunities for companies doing business throughout Europe. The demand for .EU is likely to exceed that of all previous new domain extension releases and is anticipated to become the second largest domain extension behind .com."

The article goes on to explain the pre-registration and registration process.

Ideas for Health Insurance Reform in New Jersey

Category: Business Law and Planning

Any employer or employee in New Jersey knows that health insurance costs are on the rise.

From the New Jersey Business & Industry Association:

NJBIA - Capitol Memo: "According to the Kaiser Foundation's annual Employer Health Benefits Survey, average health insurance premiums increased by 9.2 percent in 2005. The survey also found that the percentage of all firms offering health benefits to their employees had dropped to 60 percent from 69 percent in the last five years. Here in New Jersey, employers responding to NJBIA's Health Benefits Survey (released April 2005) reported an 11 percent increase in the cost of providing health insurance to their employees in 2004. "

The NJBIA Capitol Memo goes on to describe some reform measures currently under consideration in the NJ Legislature.

Disaster Strikes - Do you have a Plan? Business Continuity and Disaster Recovery Planning

Category: Business Law and Planning

Category: Business Law and Planning

With the anniversary of 9/11 coming up and the mess of Katrina in our minds and hearts, business owners need to ask themselves the question of how their business might survive a disaster. What immediate contingencies are in place? How soon could you be up and running? Where would that be? Has the plan ever been tested?

A disaster does not need to be of the scale of a terrorist attack attack or hurricane to damage your business. It could be a fire, structural issues with the building, a highway accident that closes a major roadway, electrical outages, flooding, or a myriad of items that you see on the news every night happening to "other people"

Preparing a disaster recovery plan does not have to be expensive and complicated. It is mostly of process of gathering and organizing information. The costly aspect of the planning is how you are backing up and protecting your data.

A Disaster Recovery Plan will consist of:

1 - Emergency contact information for all employees and key vendors, with a plan of how to contact people (phone tree, call in number, web-site) and what information will be needed to given to or received from vendors.

2 - A hierarchy of who will do what in the event of an emergency to make sure all functions are covered.

3 - Equipment lists, so you can replace what you need to function.

4 - Data backup that is frequently tested for integrity.

5 - Copies of the plan distributed to key employees and stored off-site.

6 - An annual reivew and updating.

One resource is The Disaster Recovery Guide: "This guide to Disaster Recovery Planning is intended to be a launch pad for those seeking help with the business continuity planning process. It offers information, guidance, tips, and links to a range of resources. "

Financing Your Business While Maintaining Equity? Options to Consider

Category: Business Law and Planning

You have a great idea for a business - you form the business - now you need money to get the business off the ground. Is taking in a partner and giving her an equitable stake the only option? The article Bplans Blog: Financing While Maintaining Equity discusses sources of small business financing other than an equity swap, including bank loans, home equity loans, private placement, "angel" investors, accounts receivable specialists.

Buy-Sell Agreements - Questions to Ask Yourself

Category: Business Law and Planning

A Buy-Sell Agreement should be a central cornerstone of your business. However, most business owners haven't really considered (1) if they need a buy-sell agreement (if you have partners, you absolutely do), (2) what it should say (some questions to consider are below), or (3) if they already have a Buy-Sell agreement in place, what that existing agreement says, and if it continues to meet your needs (which can be the most dangerous situation as you are contractually bound to something that no longer makes sense).

A Buy-Sell Agreement is designed to facilitate a more orderly transition in the event of situations such as these where one or more of the owners:

• is fired or quits
  
• wants out (either to the remaining owners or a third party)
  
• dies or becomes disabled (do you really want to be partners with your partner's spouse????>
  
• wants to buy-out another owner(for example, as a management transition, or to make her shares a greater percentage of the whole)

Some questions to consider in crafting your agreement (note that I always encourage my clients to hammer out a term sheet from a template I give them before we start drafting - a lawyer acts to advise and raise issues; as the business owners, you need to decide what your risk tolerance is and what works best for you):

• Can an owner sell her interest during her lifetime? If so, to third parties or just to other owners. If to third parties, do the remaining owners have a right to purchase the interest first (a "Right of First Refusal")
  
• Can an owner transfer his interest to a family member during his lifetime? If so, under what circumstances and to which family members. Do the family members have voting authority. Are there "drag-along" rights if the owner leaves - ie: if the owners sells out, must his family members sell as well.
  
• What happens if an owner is fired or quits? Does it matter if it is for cause or not. Should there be some sort of penalty discount to the value of the owner's interest in this situation.
  
• Who is going to purchase an owner's shares if he dies or becomes disabled and can no longer contribute to the business - the company or the other owners? Or can the family remain an owner.
  
• Will there be a mandatory buy-out of one of the owners at some point? What is the triggering event for the buy-out?
  
• How will the purchase price of the ownership interest be determined - by a formula relating to earnings, by one or more outside appraisers, by the owners determining a fixed value each year, by insuranance proceeds? Consider if the purchase price will have a discount percentage or inflation percentage in different situations (such as a discount if leave in first 5 years, or increase in the value in the event of meeting a triggering buy-out event?
  
• How will the payment of the purchase price be structured? Consider having a certain percent down, and monthly or quarterly payments for a period of time thereafter. Will the payments have a floor or ceiling cap depending on how well the business is doing. Will the remaining owners be subject to restrictions during the payout period (ie: they cannot increase salary, take loans from the company, or get financing) without approval of the owners being bought out.

SCORE - Free advice to Small Businesses

Category: Business Law and Planning

Many times a startup business client comes to the lawyer with questions beyond business formation, organizational strucutre and partnership arrangements. As a counselor to the business, the client also asks business development questions in areas such as marketing, employee hiring, training and retention, financing, and a "score" of other areas. A successful small business needs to have a team of advisors, including an attorney, accountant and a "business mentor".

SCORE "Counselors to America's Small Business" is an excellent place to find a "business mentor". It is an organization dedicated to helping the budding entrepreneur with a great idea take that idea from concept to successful reality. SCORE offers retired executives as "business mentors" to help a person develop their business from concept to reality with real-life experience and advise. And the best part - it is FREE.

SCORE describes itself as:

"SCORE "Counselors to America's Small Business" is the best source of free and confidential small business advice to help you build your business—from idea to start-up to success. The SCORE Association, headquartered in Washington, D.C., is a nonprofit association dedicated to entrepreneurial education and the formation, growth and success of small businesses nationwide.

SCORE’s extensive, national network of 10,500 retired and working volunteers are experienced entrepreneurs and corporate managers/executives. These volunteers provide free business counseling and advice as a public service to all types of businesses, in all stages of development. SCORE is a resource partner with the U.S. Small Business Administration.


SCORE offers Ask SCORE email advice online.


Face-to-face small business counseling at 389 chapter offices.


Low-cost workshops at 389 chapter offices nationwide.

Click here to find the SCORE chapter office in your area. Having a seasoned, experienced, wise guide in your corner can make a big impact in your confidence, motivation and ultimate business success."

Time for Your Annual Checkup: Key Questions for Small Business Owners

Category: Business Law and Planning

Time for Your Annual Checkup: Key Questions for Small Business Owners: "Robert Half Management Resources has identified 10 key questions for small business owners to address when conducting their annual business checkup, and offers tips for maximizing personnel resources."