Edited by Donald C. Willeke
The Representing the Ongoing Business Deskbook is designed to be your “go-to guide” for all of the issues faced by your clients running a small- to medium-sized business. It includes succession-planning issues, employment matters, business lease considerations, problems to avoid in shareholder agreements and much more! The Deskbook is a user-friendly practice aid for those who represent small- and medium-sized business owners. A talented team of authors have contributed their insights to this outstanding new resource, edited by Don Willeke and written by more than twenty seasoned business practitioners. Yet another great resource in the Business Law Deskbook series – new and seasoned practitioners will love this book!
The Third Edition to the Representing the Ongoing Business Deskbook includes 18 revised chapters, 3 brand-new chapters, and an updated Index! The three brand-new chapters include a new chapter on privacy law, a new chapter on copyright law, and a new chapter on business action documents, including 10 new forms to help you memorialize important business transactions. The Third Edition also includes updated discussion and analysis of new caselaw, statutes, and rules, and brings your Deskbook fully up to date, saving you valuable time otherwise lost to research.
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Business Capitalization, Control, and Buy-Sell Agreements
Introduction: What is a Business Capitalization, Control, and Buy-Sell Agreement? Who Needs It?; Where are Business Capitalization, Control, and Buy-Sell Agreements Located for Different Types of Entities?; Why is Such an Agreement “The Most Necessary Business Agreement”?; Why is Such an Agreement so Difficult to Draft?; Specific Elements of a Capitalization, Control, and Buy-Sell Agreement; The Capitalization and Recapitalization Provisions; Equity Holder Control Mechanisms and Provisions; Buy-Sell Provisions; Tax Aspects of Buy-Sell Agreements; Conclusion; Appendix A – A Preliminary Checklist of Considerations of Matters for Inclusion in A Comprehensive Business Capitalization, Control, and Buy-Sell Agreement; Appendix B – Sample Recapitalization Provision; Appendix C – Sample Director and Board Control Provision; Appendix D – Sample Clause Relating to Designation and Removal of Officers, and Removal for Cause; Appendix E – Sample Clause Relating to Compensation of Officers; Appendix F – Sample Clause Relating to Removal of Officers; Appendix G – Sample Clause on “Other Matters Relating to Governance of the Entity”; Appendix H – Sample Provision Attempting to Negate Gunderson-Type Expectations; Appendix I – Simple Set of Sample Clauses Relating to Buy-Sell Agreements; Appendix J – Sample Provision Relating to Using One or Three Appraisers to Value an Interest in the Enterprise; Appendix K – Sample Provision Relating to Priority of Payments and Guaranty of Payments; Appendix L – Sample Non-Competition Agreement; Appendix M – Sample “Gauntlet” Provision; Appendix N – Sample Arbitration Provision; Appendix O – Sample “Ritual Coin-Flip” Provision
– Donald C. Willeke
Employment Law: A Primer
At-Will Employment; Employee Handbook Basics; Hiring Basics; Fair Wage Basics; Discrimination; Sexual Harassment: A Form of Discrimination; Retaliation Round Up – More Illegal Employer Actions; Managing Leave; Performance Management; Employment Terminations; Providing References; Effective Workplace Investigations
– Benjamin R. Kwan & Colton D. Long
Employee Benefits Basics
Introduction; What Benefits Can/Should an Employer Offer?; Who is the Employer?; Retirement/Pension Plans; Laws Impacting Retirement Plans; Welfare Benefit Plans; Laws Impacting Welfare Plans; Laws Impacting Both Pension and Welfare Plans; Nonqualified Deferred Compensation Plans; Non-ERISA Employee Benefit Plans; Claims Procedures and Civil Enforcement; Conclusion
– Stephen A. Brunn
Minnesota Employment Contracts
Introduction; Minnesota Employment Contracts Come in Many Forms; Contract Disputes Often Decided by a Jury and Extrinsic Evidence; Damages for Breach of Contract; Statute of Limitations; Non-Competition and Other Business Protection Covenants; Bonus and Commission Agreements; Tax Issues; Conclusion; Appendix A – Sample Executive and Key Employee Employment Agreement
– Jeffrey B. Oberman & V. John Ella
Introduction; Benefits of Independent Contractor Status for Workers and Businesses; Evolving Misclassification Enforcement Efforts; Risks of Independent Contractor Misclassification; Analyzing Independent Contractor Compliance; Independent Contractor Best Practices; Key Strategic Steps if a Worker Appears to Be Misclassified; Conclusion
– Marilyn Clark & Ryan E. Mick
The Basics of Franchise Law
Introduction; A Brief History of Franchising and Its Economic Impact; Some Franchising Basics; Conclusion; Appendix A – Important Statutes
– Jeffery S. Haff
Sales and Distribution Agreements
Introduction; Types of Relationships and Agreements; Anatomy of a Supply Agreement; Special Considerations in Distribution Agreements; Special Considerations in Multinational Transactions
– Jennie A. Clarke
Negotiating Commercial Leases for Small Businesses
Introduction; Identity of Landlord and Tenant; Defining the Leased Premises; Term of the Lease; Renewal Options; Right of First Refusal and/or Right of First Offer for Expansion Space; Use of Space; Security Deposit; Base Rent; Percentage Rent; Common Area Maintenance/Operating Costs; Real Estate Taxes; Utilities; Hazardous Materials; Initial Tenant Improvements; Repairs and Maintenance; Compliance with Laws; Indemnity; Assignment and Subletting; Default and Remedies; Alternative Dispute Resolution; Damage and Destruction; Right to Relocate; Eminent Domain; Attorneys’ Fees Clause; Alterations/Surrender; Subordination, Nondisturbance, and Attornment – Landlord Warranty of Title; Entry by Landlord; Conclusion
– Tammera R. Diehm & Thomas M. Hart
Intellectual Property Issues and “Business Name” Issues
Intellectual Property Fundamentals; Trade Secrets; Copyrights; Patents; Business Name Issues
– James L. Young
Secured Transactions in Personal Property
Introduction; Creating an Article 9 Security Interest; Perfection; Priority; Default and Enforcement; Conclusion; Appendix A – Security Agreement; Appendix B – UCC Financing Statement; Appendix C – Financing Statement Amendment; Appendix D – Information Statement; Appendix E – Fixture Filing; Appendix F – Manufactured Home Notice of Security Interest
– Amy K. Fiecke, Phillip L. Kunkel & George E. Meinz
Overview of Family Business Issues; Estate Planning Basics; Estate and Gift Tax Primer; Buy-Sell Agreements; Retaining Key Employees; Will and Revocable Trust Provisions; Strategies for Lifetime Transfers
– Todd D. Andrews & Cameron R. Seybolt
Ownership Disputes in Privately Held Companies
Introduction; Fiduciary Duties and Relationships; Key Statutes; Conduct Giving Rise to Minority Owner Disputes; Remedies; Dissent and Appraisal Rights; The Use of Special Litigation Committees; Legal Representation in Owner Disputes; Appendix A – Checklist for Practitioners Considering an Ownership Dispute
– Brooke D. Anthony & Janel M. Dressen
Family Law Issues Affecting Businesses
Introduction; Seminal Minnesota Valuation Case: Nardini v. Nardini; Valuation Date; Standard of Value; Factors Affecting Value; Analysis Framework – Financial Statement Adjustments; Valuation Approaches; Valuation Premiums and Discounts; Other Valuation Issues in the Divorce Context; Common Mistakes Lawyers Make When Dealing with Business Valuation Issues; How the Business Lawyer Can Protect the Business and Business Owner in a Divorce; Appendix A – Rev. Rul. 59-60, 1959-1 CB 237, IRC Sec(s). 2031
– Andrew F. Brower, Jennifer L. Loeffler & Patrick K. Schmidt
Antitrust Considerations for Small- and Medium-Sized Businesses
The Basic Statutes; Consequences of Violation; Basic Antitrust Concepts; Sherman Act, Section 1 Violations; Violations of Section 2 of the Sherman Act; Violations of Section 7 of the Clayton Act; The Robinson-Patman Act; Some Simple Do’s and Don’ts; Basics of Private Antitrust Litigation; Thoughts on Enforcement
– Daniel R. Shulman
Conducting a Business Review
Introduction; Initial Information Gathering; Proper Creation, Operation, and Maintenance of a Legal Entity; Contracts; Employment and Independent Contractor Practices; Business Continuation and Succession Planning; Intellectual Property; Business Premises and Working Remotely; Securities Considerations; Maintaining Records and Document Retention and Destruction Policies; Litigation Considerations; Risk Management and Insurance; Client Relationships with Banks and Lenders; Retirement Planning; Computers, Email, Internet, and Technology; What Happens Next?
– James E. Snoxell
Business Contract Drafting
Overview – The Role and Importance of Contracts; The Starting Point: Basic Requirements for a Contract; Determining Needed Terms and Conditions and Drafting Considerations; Identifying and Drafting a Contract’s Terms
– James E. Snoxell
Letters of Intent
Purpose of a Letter of Intent; Binding Versus Nonbinding Letters of Intent; Covenant of Good Faith and Fair Dealing; Scope of a Letter of Intent; Appendix A – Sample Letter of Intent
– Mark D. Williamson
Introduction; The Three Most Common Forms of Relief; The Section 341 Meeting of Creditors; Pre-Bankruptcy Planning; Seeking Relief From the Automatic Stay; Preferences; Modification of Security Interests and Liens; Proof of Claim; Discharge, Denial of Discharge, and Exception to Discharge; Executory Contracts
– Karl J. Johnson & Nauni Manty
Privacy Law Primer
Introduction: How Do Privacy Laws Affect Businesses?; The Role of Federal and State Regulations in Enforcing Information Security and Data Breach Notification Laws; Global Information Management From a U.S. Perspective; Medical Privacy; Online Activities; Conclusion
– Sean L. Harrington & Ellie K. Vilendrer
Copyright Ownership – The Basics
Copyright Quandaries Often Involve Ownership; Written Agreements Are Crucial; “Work Made for Hire” – What It Really Means; Transfer of Copyright Ownership
– Amanda M. Prose, Z. Peter Sawicki & James L. Young
Armor-Plating the Corporate Veil – Drafting Business Action Documents
A Personal Introduction by the Author (and Editor); The Need to Document Business Actions in Order to “Armor-Plate” the Corporeal Entity Veil; The Value to the Practicing Attorney of Documenting the Activities of a Corporate or Other Business Entity Client; Documentation of Business Entity Records; The Form of the Documentation of Business Entity Records; The General Content of Consents in Writing; Dating of Consents in Writing; Who Must Sign Consents in Writing?; Specific Forms of Consents in Writing; Conclusion
– Donald C. Willeke
Table of Authorities
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