BUSINESS ORGANIZATIONS

1. BUSINESS ORGANIZATIONS Chapter 13

2. A person doing business for himself/herself (sole proprietor) Usually the proprietor owns all of the business property Responsible for control of the business Responsible for management Responsible for liabilities/debts May hire agents – liable for them as well Capital must come from the owner’s own resources or is borrowed Profits from the business are taxed personally to the proprietor Record keeping formalities are at the owner’s discretion See Exhibit 13.1 Sole Proprietorship .

3. Partnerships • Definition: An association of two or more persons to carry on business as co-owners for a profit • Partners or General partners control the operations & profits • Each of the partners has a fiduciary duty to the other partner(s) • Latta v. Kilbourn: One partner may not use partnership assets for own benefit • Under state laws, a partnership may be sued as an entity • Most states have adopted the Uniform Partnership Act (UPA) and Revised UPA • No need to enter into a formal agreement for a partnership to exist at law • However, agreements are preferable, esp. regarding finances, management and dissolution issues • If the Partnership Agreement is silent, the UPA governs (default rules) • If the agreement does not state otherwise, the profits of the partnership are divided equally

4. Termination of General Partnership • Dissolution occurs when an event takes place to dissolve the partnership • Change of the composition of the partners • Withdrawal of a partner • Bankruptcy of a partner concerning the business • Death of a partner • Winding up of the partnership involves completing any unfinished business • If terminated, partnership must be reformed • Common: Partnership purchases life insurance on partners • Proceeds used to buy back the interest of deceased partner from her estate

5. Definition: 2 or more persons (partners) who have entered into an agreement to carry on a business venture for profit Must have a written agreement filed with the state Called Certificate of Limited Partnership Puts 3rd parties on notice that limited partners assets not available to satisfy any claims against the limited partnership General partners (at least one) Manage the business Are personally liable to creditors Have the duty to account to the limited partners Limited partners(at least one) are investors only Do not manage the business Are not liable for debts Limited partners become general partners at law if they participate in or manage the business (lose their limited liability) Most states use some form of the Uniform Limited Partnership Act (ULPA)orRevised Uniform Limited Partnership Act Limited Partnership

6. Corporations • Legal “entities”/”persons” • Can sue & be sued • It has liability • It has constitutional rights • MUST meet formal requirements according to state statutes • Liable for agents’ actions and contracts • Each state has its own corporation laws; federal government places very limited role • Close corporation: Shares held by only one or small group of shareholders; stock not traded on a stock exchange • Public corporation: Stock is traded on a stock exchange; is likely to have many shareholders

7. IRONITE Ironite Products Co. v. Samuels • 1972: Irwin Fox and Alvin Samuels established Ironite. • Articles of incorporation set out guidelines for operation. • Irwin and Alvin orally made decisions about company; shared equally. • Later they formed Sweet Gas – ran under same rules. • 1989: Invited their sons, Richard Fox and Mark Samuels, to join them – sons would eventually take control. Richard drafted new bylaws. Alvin made hand-written changes and all agreed to new bylaws. • 1993: Irwin died and Richard took over his ½ of the company. • Outsider invited to join Board of Directors for independent tie breaker vote. • Fights began over who should be paid how much and who should control what. Richard and independent director voted to pay Richard more than Mark.

8. IRONITE Ironite Products Co. v. Samuels • Mark sued Richard, Ironite, and Sweet Gas. • Said original agreement of equal shares applied. • Defendants said new bylaws would determine compensation, not old oral agreement. • Trial court held that proceeds from operations would be shared equally by terms of the original agreement. • Richard and companies appealed. • HELD: Reversed. • 1972 Oral Agreement contradicts terms of the bylaws. • Oral agreement violated the parol evidence rule and evidence must be ignored. • Written documents clearly state that compensation for the officers is at the discretion of the Board of Directors. • Bylaws Article III, Section I clearly allows Board to manage affairs of the companies, absent proof of wrongdoing. • No allegation that Board perpetrated fraud or made an irrational business judgment. Richard, Ironite and Sweet Gas win. SWEET GAS

9. Creating A Corporation • Articles of Incorporationand an application are sent to the appropriate state office • The state issues aCertificate of Incorporation • SeeExhibit.13.2 • Incorporators hold a first organization meeting • At the first meeting • Elect a Board of Directors • Enact bylawsor rules that govern internal operations (bylaws cannot contradict the Articles of Incorporation) • Issue the corporation’s stock

10. Relationship of Parties of A Corporation • Shareholders • Owners of the corporation; no day-to-day control of activities • Shareholder meetings need quorum (usually more than ½ total shares present • Most shareholders give proxy to 3rd parties to represent them. • Shareholders elect Board of Directors • No legal relationship to creditors • See Storetrax.com v. Gurland • Board of Directors • Have management power over large decisions • Can be removed from office by shareholders for cause (breach of duty/misconduct) • Have fiduciary duty of loyaltyto the shareholders • Managers • Appointed/hired by directors to manage day-to-day decisions • Have broad duties of care & loyalty to directors • Employees • Workers

11. Business Judgment Rule • Makes directors & managers immune from liability • When problems result from honest mistakes in judgment • If there was a reasonable basis for their decisions • If they acted in good faith

12. Professional Corporations (PCs) • Created by state laws • Owners of PC can only be professionals involved in the firm itself (i.e. MD’s whose practices are tied together • Created to have limited liability for its members • Example: Doctors join to reduce liability risk for malpractice of a member-doctor • Stock usually cannot be sold to outside investors • Has special tax treatment with IRS

13. Limited Liability Companies (LLC) • LLC is treated like a corporation for liability purposes but like a partnership for federal tax purposes. • State laws have procedures to create LLC’s • Filing a document: Articles of Organization • State issues a Certificate to operate as an LLC • Usually is formed by two or more members • Members have membership interests • Limited liability of owners – the same as a corporation • Members enter into an Operating Agreement • Similar to bylaws of a corporation • An LLC does NOT have perpetual life • Death, resignation, retirement, expulsion of member terminate LLC unless otherwise provided • But, if remaining members give consent, LLC can continue (should be set out in Articles of Organization) • Termination: Period of winding up, followed by payment of creditors and distribution of profits.

14. In re 1545 Ocean Avenue, LLC • 1545 Ocean Avenue LLC formed to develop real estate • Owned 50-50 by two companies (Ocean Suffolk & Crown Royal); each company had membership certificate in 1545 • Operating agreement had no dissolution provisions • Two managers appointed to operate 1545 • Crown Royal appointed King • Ocean Suffolk appointed Van Houten • King and Van Houten argued; King announced Crown Royal would pull out • King sued for work to stop and the LLC too be dissolved • Trial court granted King’s requests • Ocean Suffolk and Van Houten appealed.

15. In re 1545 Ocean Avenue, LLC, cont. • LLCL 702 (New York LLC Law) states that court must examine the LLC’s operating agreement • Unilateral action of a single manager was permitted in Article 4.1 of 1545 LLC Operating Agreement • Lets each manager act autonomously to bind LLC in furtherance of business of the LLC • Operating agreement was silent about manger conflicts • 1545 can only dissolved if cannot further purpose of LLC • HELD: Lower Court ruling reversed and proceeding dismissed. • Dissolution is not granted.

16. Business &Taxation • Corporate profits are taxed at corporate tax rate. • Dividends are taxed at each individual shareholder’s tax rate. • In effect this is “double taxation” of the same profits. • The Supreme Court has held: There is no “double taxation” under the law, since “two separate entities” (corporations and shareholders) are taxed only once each. • Partnership pays no income taxes • Income passes to parties who pay tax on their share of income • Limited Liability Company • Treated like a corporation for liability purposes • Treated like a partnership for federal tax purposes

17. Factors That Influence the Choice of a Business Organization • Limited liability • Control • Capital considerations • Taxation • Transferability of ownership interests • Method of creation • Entity as a distinct status separate from its owner • Each owner must make his/her own choice

18. Limited Liability(Protecting Personal Financial Risks) • Allows person to invest in business without placing all wealth at risk. • Allows investors to be passive toward internal management. • Sole proprietors have unlimited personal liability for debts of business, including torts. • Liability of limited partner is limited to capital contributed to LP. • Shareholders of corporation and members of limited liability companies risk only their capital investment if corporation fails – generally not personally liable for the business debts or torts.

19. Piercing The Corporate Veil • Owner treats corporation as an “alter ego” • Co-mingling funds • No separate records • Loans money without loan papers • No reimbursement for expenses • Result: Shareholders are personally liable for all corporate liability – torts, contracts, debts • See KC Roofing Center v. On Top Roofing, Inc.

20. K.C. Roofing Center v. On Top Roofing, Inc. • Nugents owned a series of roofing companies • 1977: Russell Nugent Roofing Inc. was incorporated • Russell and wife only shareholders, directors & officers • 1985: Corporation name changed to On Top Roofing • 1987: On Top Roofing ceased doing business • 1987: Nugents did business through new corporation RNR, Inc. • 1988: RNR ceased to exist • 1988: Replaced by RLN Construction, Inc. • 1989: RLN Construction was replaced by Russell Nugent, Inc. • Business was run out of Nugent’s home • In 1986 Nugents paid themselves salaries over $100,000 each • Charged corporation $99,290 in rent for space in their home • K.C. Roofing was owed $45,000 for roofing supplies sold to On Top Roofing, which no longer existed. (Continued)

21. K.C. Roofing Center v. On Top Roofing, Inc., cont. • K.C. asked court to pierce the corporate veil and hold Nugents personally liable. • District held for K.C. Nugents Appealed. • HELD: Affirmed. Nugents must pay K.C. • When corporation is used for an “improper purpose . . . to perpetuate injustice” and “avoid its legal obligations”, corporate veil is pieced. • Here: • 1. Nugents had control of all aspects of business • 2. Control was used to commit fraud or wrong or other positive legal duty, including an “unjust act” • 3. Breach of duty caused unjust loss or injury to plaintiff • Nugents were avoiding debts to plaintiffs. • Refused On Top’s obligations to creditors. • It is unfair, unjust, and inequitable to allow Nugent to hide behind corporate shield and avoid legal obligations to plaintiffs.

22. Refers to ability of business owner to sell or pass interest to others Nontraded Entities In sole proprietorship, selling the business ends the proprietorship. Price is FMV to be determined. If a partner sells or assigns interest in the partnership, the partnership continues, but the new person doesn’t automatically become a partner. New person is just entitled to receive the share of profits the partner would have received, but can’t participate in management of partnership or right to its business information. Sale of close corporation is like a sole proprietorship sale as price of shares is not determined on a stock exchange Must determine the market value of the close corporation and its shares. May need specialists to determine value. Publicly Traded Corporations Public corporation stock may be traded on stock exchange. Price is known and therefore no specialists need to be hired to determine market value. Transferability of Ownership Interests

23. Duration • Duration refers to ability to continue to operate in event of death, retirement or incapacity of owner of business • Limited Life: • Sole proprietorship terminates with death or incapacity of proprietor. • At common law partnerships and LLC’s are dissolved by death, retirement or incapacity of a partner, but are not necessarily terminated. (Can reform) • Perpetual Existence: • Unless, articles of incorporation provide for period of duration, corporation has perpetual existence. • Death or retirement of shareholder(s) does not bring termination of the corporation. • (In fact, usually does not have any impact on operations of the business.) • Close corporation or LLC with few members – death of a shareholder may impact the business.

24. Franchises • Three types: • 1) product distributorships (i.e. Ford Dealership) • 2) trademark/trade-name licensing (i.e. Coca-Cola) • 3) business format franchising (i.e. McDonald’s) • Franchisor grants a right to sell goods or services to a franchisee in return for payment of a franchise fee • Uniform product or services and the use of a trademark help the franchisee establish quickly in the market See Exhibit 13.4

25. Federal & state laws protect investors FTC Franchise Rule: Franchisor is required to give an offering circular (disclosure statement) to potential franchisees FTC v. Wealth Systems: FTC alleged that 3 entities violated Section 5 in selling home-based Internet business opportunity by misrepresenting purchases will earn substantial income. Also failed to give purchasers a complete disclosure document and failed to provide purchasers with earnings claims documents and did not comply with Franchise Rule’s general media claims requirements. When violations occur, the result is usually that promoted activity is closed down. Some states have laws to regulate franchises as well – for example, California, Illinois and New York. Some franchisees given extra protection by state laws: auto dealers and gas stations – often have extra rights compared to most franchises Franchises

26. Franchises • The franchise agreementsets forth rights and obligations of the parties, i.e. territorial rights, fees and royalties, termination, etc. • Termination • Through explicit events that bring about franchise’s termination • Fixed expiration time • Franchisor’s right to termination re: occurrence of events – • Inspection problems or violations of franchisee • Bankruptcy of franchisor

27. Dunkin’ Donuts Franchised Restaurants, LLC v. Sanlip, Inc. • Three individuals owned Sanlip, a Dunkin’ Donuts franchisee. • Operated two donut shops in Norcross Georgia • Dunkin’ said defendants breached franchise agreements • Failed to remodel their shops • Failed to participate in mandatory system-wide programs • Failed to attend required training • Failed to prepare immigration forms for new employees • Dunkin’ said defendants transferred significant part of franchise w/o Dunkin’s knowledge in violation of franchise agreement. • Sanlip did not dispute claims. • Protested that Dunkin’ was not allowing owners reasonable chance to sell franchise. • Dunkin’ entered into settlement agreement. • Allowed Sanlip time to try to find buyer. (Continued)

28. Dunkin’ Donuts Franchised Restaurants, LLC v. Sanlip, Inc. • Sanlip submitted proposed sale agreement. Dunkin’ refused to accept the buyer. Asked court to order Sanlip to return shops to Dunkin’. • Sanlip counterclaimed: Dunkin’ rejected reasonable proposal. • HELD: Summary Judgment for Dunkin’ plus attorneys’ fees & costs. • Dunkin’ may not “unreasonably” reject proposed sale agreement. • Dunkin’ analysis: • If store will lose money Dunkin’ rejects proposed sale agreement. • Also looks at financial condition of the buyer if it decides store may break even. • This is firmly-established policy by Dunkin’ and reasonable. • Dunkin’ has right to terminate the agreement. • Lease agreements provides Dunkin’ may terminate lease if franchise agreement for shop is terminated for any reason.