The Top Four Pitfalls Of Buying Into A Franchise

Forbes published an article we wrote on the top pitfalls of buying into a franchise and good
best business attorneyquestions to ask before you take the leap. You can review the article here.

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Quarterly Update

Curious about what we and some of our clients have been up to? Check out our quarterly newsletter here!

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We Now Accept Bitcoin!

This month we accepted our first retainer paid for entirely with Bitcoin. As a law firm that is passionate about providing exceptional legal services to small businesses and startups, we are thrilled to expand our accepted payment methods to include Bitcoin. We hope that doing so further demonstrates our commitment to technology and innovation, and most importantly, to meeting the changing needs of our clients.

We represent a wide range of businesses around the Bay Area including tech startups, food trucks, breweries, hair salons, film production companies, artists, consultants, and international clients.  We take time to understand each of our clients’ legal needs and tailor our services to meet those needs in an efficient and cost effective manner.

One of our core principles is to provide the greatest value possible to each of our clients.  In practice that means that we only accept clients and projects for which we feel we are the very best fit.  We also embrace change and use technology to reduce overhead costs to keep our billable rates reasonable.

We are excited to join the Bitcoin community and would especially like to thank the kind folks at Coinbase who patiently answered all of our questions and were able to get us up and running in a flash.

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Five Ways To Value A Small Business You Are Buying Or Selling

When buying or selling a small business, there are five ways to determine a fair purchase business attorney san franciscoprice:

1.  Look At Similar Businesses.

The least accurate option is to look at similar businesses that are for sale on the Internet. The advantage to this option is you can look at similar listings from the convenience of your home whenever you would like.

However, this is the least accurate option as there can be a wide variety of factors that might make the fair market value of the business you are buying or selling more or less than the business listings you review on the Internet.

In addition, the asking price of an Internet listing is often not the ultimate selling price. If you work with a business broker or appraiser, they will have access to comps of the sale of similar businesses both in California and across the country.

2.  Back Of The Napkin Calculation.

You can also use a multiplier times the revenue of the business. While this option is also free, it is often not accurate as it does not take in account a variety of factors, such as the projection that the future revenues of the business are moving in or net profits. For example, two businesses in the same industry could have the same sales but one business could net $200,000 a year whereas another business could net $59,000 a year because it has more expenses.

3.  Hire A Business Appraiser.

You can have a certified business appraiser do a very extensive valuation. This is often the most accurate valuation of the business because the business appraiser digs deep on your particular industry, market forces, anticipated future returns and other factors. The drawback is it is also the most expensive option and takes several weeks for the business appraiser to complete, but at the end of the process you would have a detailed report of the fair market value of the business.

4.  Hire A CPA.

You can also hire a CPA who specializes in valuation work to review the financials of the business and provide a valuation. This is a less expensive and intrusive option than hiring a business appraiser, but the valuation is also not as detailed. You should ask the CPA how much experience they have doing valuation work and whether they have been certified by the AICPA or the CBV as most have no formal business valuation experience and are not certified to provide valuations.

5.  Work With A Business Broker. 

If you are selling a business, you can have a business broker to review your business and provide you with a suggested listing price.

If you are buying a business, a business broker can advise you on whether a listing price of a business is fair or if there are better opportunities on the market.

The advantage of working with a business broker is initially it is often free because business brokers are typically only compensated if the sale of the business is completed.

The drawback is if you do not work with a trustworthy business broker who keeps your best interests in mind, they might suggest a listing price that is less than the full fair market value to encourage a quick sale and therefore a quick commission payment.

It is fair to ask the business broker how many sales they have completed and hire one who has completed at least fifty transactions as they are more likely to have the necessary experience and competency.

If the broker provides you with a suggested valuation, you should request that they provide you with comparable sales to make sure it is a logical sales price.

Some business brokers are willing to credit the cost of a business valuation by a certified appraiser from their commission if the seller agrees to list the business at the valuation price. For many business owners, this is the best of both worlds as you get a detailed, accurate valuation by a certified business appraiser, but the cost is paid by your business broker.

If you have any questions about buying or selling a small business or would like an introduction to a great CPA or business broker to help you value a business, please contact us at (415) 633-6841 or info@bendlawoffice.com.

Disclaimer: This article discusses general legal issues, but it does not constitute legal advice.  No reader should act or refrain from acting on the basis of any information presented herein without seeking the advice of counsel in the relevant jurisdiction.  Bend Law Group, PC expressly disclaims all liability in respect of any actions taken or not taken based on any contents of this article.

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The Five Steps To Obtaining A Trademark

A trademark is often an important investment in protecting the intellectual property of

your business. Obtaining a trademark involves five steps:

1.  Search For Conflicting Trademarks.

business-trademark-registration

Your first step is make sure there are not any conflicting trademarks.

You should search on the United States Patent & Trademark Office’s website to see if there any conflicting trademarks that have already been registered.

You should then work with an attorney to run a more comprehensive search because even if a trademark has not been registered, it could still have superior intellectual property rights over your trademark if it was being used prior to your trademark.

In addition, if the USPTO rejects your application due to a conflict with an existing mark, filing fees will not be refunded.

2.  Date Of First Use.

Once you have confirmed there are no conflicting trademarks, you will need to complete a trademark application.

You will need the following two dates to complete the application:

(i)                 Date of First Use of Trademark In Commerce Anywhere.

You will need to include the date you first used the trademark “in commerce anywhere.”

(ii)                Date of First Use in Interstate or Foreign Commerce.

You will also need to include the date you first used the trademark in interstate commerce or commerce with a foreign country.

3.  Trademark “Specimen”.

The trademark application also requires a trademark “specimen” which shows the trademark being used in commerce in the class of goods or services for which you are applying for the trademark.

4.  Class Of Goods & Services.

You will need to select the class of goods or services you would like to register the trademark.

You should be strategic in selecting the class of goods or services to register the trademark as there is an additional filing fee for each class of goods or services in which you register the trademark.

5.  Contact Address.

Finally, you will need to include a contact address for the trademark registration.

It is important to remember that anyone can view this address if they search for the trademark on the U.S. Patent and Trademark Office’s website once the trademark application has been filed.

If you have any questions or would like help in obtaining a trademark for your business, please contact us at (415) 633-6841 or info@bendlawoffice.com.

Disclaimer: This article discusses general legal issues, but it does not constitute legal advice in any respect.  No reader should act or refrain from acting on the basis of any information presented herein without seeking the advice of counsel in the relevant jurisdiction.  Bend Law Group, PC expressly disclaims all liability in respect of any actions taken or not taken based on any contents of this article.

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Why we love helping small business owners and startups.

Rose Rose Productions did an amazing jobs of producing this video on why we love helping small business owners and startups.

We are very fortunate to spend our days helping entrepreneurs start and grow their businesses.

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How To Update Your San Francisco Business Address

If you change your business address in San Francisco, the following checklist is a good starting point for most businesses to make sure you update all of the necessary government agencies and service providers.

1.  California Secretary Of State’ Office.

You will need to file an updated Statement Of Information with the California Secretary Of State’s Office. The filing fee for an LLC is $20 and for a corporation is $25. You can access the forms to do so here.

2.  IRS.

You will also need to update the IRS by filing Form 8822-B or by calling the IRS business hotline at 1-800-829-4933. There is no filing fee.

3. California Franchise Tax Board.

You will need to update the California Franchise Tax Board, which you can do here. There is no filing fee.

4. San Francisco Business Registration Certificate.

In addition, you need to update your business account with the city of San Francisco by clicking here. There is no filing fee.

4. Fictitious Business Name Statement.

You are required to file a fictitious business name statement if you conduct business in San Francisco under a name other than your full legal name, the legal name of a legal entity, or any name that suggests additional owners. When you change your business address, you are required to file for an updated fictitious business name statement. The filing fee is $47 and the cost of publication varies depending on the newspaper, but The Recorder charges $42. You can reach The Recorder at tonya_peacock@dailyjournal.com.

5. Board Of Equalization.

If your business has a seller’s permit, you will need to update the Board Of Equalization by filing BOE Form 345, which you can access here. If you do not have a seller’s permit, you can read about why you might need one here.

6. Employment Development Department.

You will also need to update the Employment Development Department by filing Form DE 24: Change of Employer Account Information, which you can access here. There is no filing fee.

7. Business Service Providers.

You should update all of the service providers for your business, such as your bank, insurance carrier, credit card companies, payment processing and other service providers.

8. Business Listings.

You should update all of the online business listings for your business, such as Yelp, Facebook business page and any other applicable listings. Once you think you have covered them all, Google the name of your business to make sure you have not missed any.

9. U.S. Postal Service.

Last but not least, you should file a change of address form with the United State’s Postal Service, which you can  find here.

For many companies these are the steps necessary to change your business address in San Francisco, but please contact us at (415) 633-6841 or info@bendlawoffice.com to make sure no additional steps are required as each situation is unique.

Disclaimer: This article discusses general legal issues, but it does not constitute legal advice in any respect.  No reader should act or refrain from acting on the basis of any information presented herein without seeking the advice of counsel in the relevant jurisdiction.  Bend Law Group, PC expressly disclaims all liability in respect of any actions taken or not taken based on any contents of this article.

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The Top 4 Drawbacks to Incorporating in Delaware

More companies are incorporated in Delaware than anyDelaware-Incorporation-Attorney-Lawyer-Corporation other state.  In fact, half a million businesses, including more than half of all U.S. publicly-traded companies and 60% of Fortune 500 companies, have incorporated in Delaware. So why wouldn’t you form your corporation in Delaware? This article highlights the biggest drawbacks to incorporating in Delaware and explains why it is not a one-size-fits-all solution.

1.  Extra Initial Filing Fees.

If you incorporate in Delaware you will not only have to pay the filing fees for the state in which you are transacting business, but also Delaware filing fees, which include $89 for the Delaware Certificate Of Incorporation and $50 for the Certificate of Good Standing, which you will need to register the corporation in most states, including California.

These filing fees are in addition to the filing fees you will then need to pay to register your corporation in the state in which your corporation is actually conducting business.  For example, to register your Delaware corporation to do business with the California Secretary of State’s Office you will also need to file a California Statement Of Designation Of Foreign Corporation, which has a $100 filing fee in addition to the Delaware filing fees.

2.  Annual Costs For A Registered Agent for Service of Process.

In addition to extra filing fees, if you incorporate in Delaware you will be required to have a registered agent for service of process.  The annual fees for this service vary, but companies such as Biz Filings and Legal Zoom charge $129 to $149 each year.

3. Extra Franchise Taxes.

If you incorporate in Delaware you will not only have to pay the annual franchise tax in the states in which you are “doing business,” but also in Delaware.

For example, if your company is headquartered in California, but you incorporated in Delaware, each year you will not only have to pay the $800 annual franchise tax in California, but also the annual franchise tax in Delaware.

4.  Extra Reporting Requirements.

If you incorporate in Delaware, you will have a second layer of reporting requirements.  For example, if you incorporate your company in Delaware, but are headquartered in California, you would have to comply with the reporting requirements in both states.

For these reasons, not every company should incorporate in Delaware.  Instead, you should make sure that the benefits of incorporating in Delaware outweigh  the extra expense and time of being incorporated there instead of whichever state your company is headquartered in.

If you incorporated your company in Delaware, what have you found to be some of the biggest advantages and disadvantages?

Disclaimer: This article discusses general legal issues, but it does not constitute legal advice in any respect.  No reader should act or refrain from acting on the basis of any information presented herein without seeking the advice of counsel in the relevant jurisdiction.  Bend Law Group, PC expressly disclaims all liability in respect of any actions taken or not taken based on any contents of this article.

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How To Dissolve A Delaware Corporation That Is Registered To Do Business In California

So your company’s life has come to an end. What now? Merely closing your doors is not enough to officially dissolve your company.  You should consult with your attorney and tax professional as it varies from company to company, but there are typically fourteen steps to dissolve a Delaware corporation registered to do business in California.

1.  Approval Of The Board Of Directors.

A majority of the board of directors needs to pass a written resolution approving the dissolution of the corporation.  

2.  Approval Of The Shareholders.

If shares have been issued, a majority of the outstanding shares will also need to approve the company’s dissolution.

3.  Final Delaware Franchise Tax Report.

A final annual franchise tax report for Delaware needs to be filed and and the company will need to pay any outstanding franchise taxes owed to Delaware.

4.  Delaware Certificate Of Dissolution.

Once all outstanding Delaware franchise taxes have been paid, a Delaware certificate of dissolution needs to be filed. If the entity has ceased transacting business and has no assets remaining then you may qualify for the short form certificate of dissolution.

5.  Discontinued Registered Agent For Service Of Process Services.

Notify whichever service provider your company is using for its registered agent for service of process in Delaware so you do not continue to get charged for the service.

6.  Notice of Dissolution To Creditors.

If the company has any creditors, it should provide them with notice of when claims must be submitted for payment to be considered.

7. File Declaration Of Closed Business With The City.

If the corporation is registered with a city, most cities require that the business registration be inactivated.  For example, if the corporation was registered to do business in San Francisco, a Declaration of Closed Business would need to be filed.

8.  File An Abandonment Form For Your Fictitious Business Name Statement.

In addition, most jurisdictions require you to file a form notifying the government that you will no longer be using the fictitious business name. For example, in San Francisco a company would need to file a Statement Of Abandonment Of Use Of Fictitious Business Name Statement.

9.  Cancel Any Other Licenses And Permits.

Cancel any additional licenses or permits, such as your California Seller’s Permit.

10.  California Certificate Of Surrender.

If the corporation is registered to do business in California, a California Certificate Of Surrender will also need to be filed.

11.  IRS Form 966.

Within 30 days of the board of directors approving the dissolution, IRS Form 966 must also be filed.

12.  IRS Forms 8594 and 4797.

If the dissolution involves the sale or exchange of corporate assets, IRS Forms 8594 and 4797 may also be necessary.

13.  Final State Tax Return.

You will need to work with your CPA or other tax professional to file a final state tax return.  You will also need to file any delinquent tax returns and pay any owed taxes.

In California, the Franchise Tax Board will continue to assess an annual franchise tax until the corporation has filed a final tax return with the FTB.  You should indicate it is the final return by checking the box that it is the final return and writing “final” on the top of the return.

14.  Final Federal Tax Returns.

Lastly, a final federal tax return needs to be filed for the corporation.  Like the state tax return, you should indicate on the form that it is the final return for the company.

For many companies these are the steps to officially close down a Delaware corporation registered to do business in California, but please contact us at (415) 633-6841 or info@bendlawoffice.com to make sure no additional steps are required as each situation is unique.

Disclaimer: This article discusses general legal issues, but it does not constitute legal advice in any respect.  No reader should act or refrain from acting on the basis of any information presented herein without seeking the advice of counsel in the relevant jurisdiction.  Bend Law Group, PC expressly disclaims all liability in respect of any actions taken or not taken based on any contents of this article.

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The Top 5 Reasons Your Early Stage Startup Should Use Restricted Stock Instead Of Stock Options

Startups often use equity to help attract and keep talented workers.  This article outlines the differences and similarities of stock options and restricted stock purchase agreements and why most early stage startups which issue stock shortly after formation select restricted stock when compensating their workers.

What are stock options?

Stock options give employees the right to buy a specific number of shares of the company at a specified price (the “strike price“) during a window of time.

What is restricted stock?

Restricted stock vests overtime, typically over a four year period. If the worker leaves the company before all of the stock has vested, the company has the right to repurchase the unvested stock back from the worker.

How are stock options and restricted stock similar?

Both stock options and restricted stock encourage loyalty to the company by incentivizing the worker to remain with the employer for at least a minimum period of time.

In addition, both provide an important tool to startups that may not have much cash to attract top talent.

Finally, both encourage the worker to increase the value of the company, which creates a unity of interest between the worker and the employer.

How are stock options and restricted stock different?

One key difference is restricted stock vests over time regardless of whether the value of the stock increases. In contrast, stock options do not automatically vest. Instead, stock options have an expiration date and the worker can only exercise their options during a specific window of time.

What are the benefits to stock options?

With stock options the worker is not out any money if the stock price does not rise because they can decide not to exercise the stock options.

That being said, for new startups the fair market value for restricted stock is often only the par value of the shares and so the purchase price is typically very minimal.

Why are restricted stock agreements often better than stock option plans for most early stage startups?

Each situation is unique, but most early stage startups use restricted stock rather than stock options for five reasons.

1.  No Need For a 409(a) Valuation.

The board of directors is required to determine the fair market value of stock for both restricted stock and stock options.

The key difference is for restricted stock it is the fair market value of the stock when it is purchased, which for very early stage startups is often the par value of the stock as the company shortly after formation does not yet have much value.

In contrast, under IRS Regulation 409(a) if the the valuation of stock options is done by a professional valuation company, the valuation is presumed to be correct and the burden is on the IRS to prove otherwise if there is ever an audit.

However, if the company does not use a professional valuation company, if there is ever an audit the company and not the IRS has the burden of proving the valuation is correct. As a result, companies typically hire an outside valuation firm to do the valuation of stock options. The thousands of dollars it costs to have 409(a) valuations completed, could instead be spent on other things for the company, such as software programming or marketing.

After a company has gained value the valuation of grants of restricted stock is no longer par value, but for an early stage start it is much easier, and less expensive, to properly determine the value of restricted stock than it is stock options.

2.  Stock Options Could Become Worthless.

Also, a stock option could become worthless.  For example, a stock option grant with a strike price of $10 has no value if the fair market value of the stock is later determined to be $8.  In contrast, if restricted stock is granted when the stock is trading at $10 and is later worth $8, the stock is still worth $8 and has only lost 20% of its value.

3.  Restricted Stock Might Better Motivate Workers.

In addition, some workers might be better motivated with restricted stock than with stock options because workers will get shares of the stock regardless of whether its value increases.  In contrast, stock options are worthless if the value of the stock goes down or if the worker fails to exercise the stock option.

Restricted stock, therefore, might better motivate some workers to think and act like owners of the company, take a personal interest in the company and be more focused on meeting the company’s objectives because they will obtain shares regardless of whether the stock price goes up or down.

In contrast, stock options might do less to instill a sense of ownership because the worker could invest years in the company only to find that the value of the stock has decreased and so there is no value in the stock options. Because the value of the stock may not increase, the worker might not have the same amount of loyalty to the company than if they had been granted restricted stock.

4.  Immediately Start The Clock Running For The Lower Capital-Gains Rate.

If the worker makes an 83(b) election, the income from the restricted stock grant will be recognized at the time of the stock ”transfer” - its purchase date – rather than when the stock vests. The reason this is important is if an 83(b) election is made the long term capital gains holding period also begins on the purchase date of the restricted stock rather than when the stock vests.

5.  Workers’ May More Be More Likely To Focus On The Long Term Value Of The Company.

Finally, a worker with stock options might be more likely to be motivated to increase the short term stock price so they can exercise their stock options even if this comes at the detriment to the longer term growth of the company.

For all of these reasons, most early stage startups which issue stock shortly after formation use restricted stock instead of stock options as they often provide a superior method of compensating and motivating workers.

Please contact us at (415) 633-6841 or info@bendlawoffice.com to discuss whether restricted stock or stock options might be the best fit for your company.

Disclaimer: This article discusses general legal issues, but it does not constitute legal advice in any respect.  No reader should act or refrain from acting on the basis of any information presented herein without seeking the advice of counsel in the relevant jurisdiction.  Bend Law Group, PC expressly disclaim all liability in respect of any actions taken or not taken based on any contents of this article.

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Should Your California Professional Corporation Elect To Be Taxed As An S Corporation?

In California, certain professions that require a state license are prohibited from forming a start-up-attorney-small-business-lawyer-corporate-transactionallimited liability company or a traditional corporation and instead must incorporate as a professional corporation.

If you do not elect to have your California professional corporation taxed as an S corporation, the default is for it to be taxed as a C corporation.

As a C corporation, your professional corporation would pay federal taxes on its profits and you would also pay individual taxes if you receive salary, bonuses, or dividends from the corporation.

By electing to be taxed as an S corporation, your professional corporation would instead be a pass-through tax entity, like an LLC or a partnership.  Electing to be taxed as an S corporation may also allow you to pass losses from the business to your personal income tax return, where you can use the losses to offset income that you may have from other sources.

Finally, if the corporation pays you a “reasonable salary,” you may not be required to pay self-employment taxes on any additional corporate profits that are paid to you as dividends as a shareholder in addition to your reasonable salary.

You should consult with your CPA or tax professional to make sure being taxed as an S corporation is the best fit for your professional corporation, but for most California professional corporations electing to being taxed as an S corporation rather than a C corporation is likely to provide the most tax savings.

Disclaimer: This article discusses general legal issues, but it does not constitute legal advice in any respect.  No reader should act or refrain from acting on the basis of any information presented herein without seeking the advice of counsel in the relevant jurisdiction.  Doug Bend expressly disclaims all liability in respect of any actions taken or not taken based on any contents of this article.

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What Is A California Professional Corporation?

In California, certain professions are prohibited from forming a limited liability company orSmall-Business-Attorney-San Francisco-Professional-Corporation a traditional corporation and instead must incorporate as a professional corporation.

Professions that are required to be professional corporations include many of those that must have a state license, such as dentists, certified public accountants, doctors, lawyers, optometrists, psychiatrists, and psychologists.

What Is Different About Professional Corporations?

Professional corporations have more restrictions than traditional corporations.  For example, with a few limited exceptions, officers, directors and shareholders of a professional corporation must be licensed to conduct the professional activity.

Professional corporations are also subject to specific rules in the California Business and Professions Code. For example, only licensed persons can be shareholders of a  professional corporation.

In addition, professional corporations are subject to the regulations of the applicable governmental agency overseeing the profession in which the professional corporation is engaged. For example, some agencies have restrictions on what you can name a professional corporation and require specific language to be included in the professional corporation’s bylaws regarding who can own shares and be officers of the professional corporation.

Why Form A Professional Corporation?

While professional corporations do not provide liability protection for malpractice, you could have limited liability protection for claims not based on malpractice, such as a slip and fall accidents.

In addition, by forming a professional corporation you may be able to deduct payments for benefit plans, such as disability or health plans or group term insurance.

Finally, you should speak with your CPA or other tax professional about whether there is the potential to have tax savings by forming a professional corporation and then electing to have it taxed as an S corporation.

Please contact us at (415) 633-6841 or info@bendlawoffice.com to discuss whether your company is required to be a professional corporation and, if so, the steps necessary to get it set up right.

Disclaimer: This article discusses general legal issues, but it does not constitute legal advice in any respect.  No reader should act or refrain from acting on the basis of any information presented herein without seeking the advice of counsel in the relevant jurisdiction.  Bend Law Group, PC expressly disclaims all liability in respect of any actions taken or not taken based on any contents of this article.

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The Top 10 Reasons to Incorporate in Delaware

There are many reasons why more companies are incorporated in Delaware than any otherStart-Up-Attorney-Small-Business-Lawyer-Company-Formation state.  This article highlights a few of the reasons why half a million businesses, including more than half of all U.S. publicly-traded companies and 60% of Fortune 500 companies, have incorporated in Delaware. It then outlines the biggest drawbacks to incorporating in Delaware and explains why it is not a one-size-fits-all solution.

1.  The Corporate Law Expertise Of The Delaware Court of Chancery.

Delaware has a highly respected court that focuses on corporate issues – the Court of Chancery.  Because of this specialization, the Court of Chancery has a great deal of expertise and familiarity in resolving complex corporate disputes.

No corporation wants to be involved in litigation, but if you are it is reassuring to know the dispute will be resolved by a very knowledgeable judge who is sophisticated in resolving corporate law matters.

2.  The Extensive Precedent of Delaware Corporate Case Law.

Corporate case law in Delaware is much more extensive than in other states due to the high volume of corporate cases.

More case law means increased predictability of the likely judicial resolution of a business law dispute. If there have been several similar cases to the one facing your corporation there is less uncertainty about the judicial outcome, which can be key when strategically deciding whether to settle a dispute or invest the time and capital to litigate.

3.  The Flexibility Of Delaware Corporate Statutes.

The Delaware corporate statutes provide a great deal of flexibility in the organization of a corporation and the rights and duties of board members and shareholders.  For example, Delaware allows one person to be the only director, shareholder and officer of a Delaware corporation, whereas some other states require at least three people to fill the officer and director positions.

Although many of Delaware statutes have been mimicked in other states, the extensive case law mentioned above is an enormous asset when determining how a Delaware statute is likely to be interpreted.

4. Corporate Attorneys Are Familiar With Delaware Law.

Most corporate attorneys are familiar with Delaware business law.  This can lead to your attorney more efficiently and cost effectively assisting you if your company is incorporated in Delaware than if it is incorporated in a less popular state.

5.  Angel and VC Investors Prefer To Invest In Delaware Corporations.

Angel investors and venture capitalists tend to prefer to invest in companies incorporated as a C Corp in Delaware.  Therefore, if you are serious about receiving investments from these types of investors, you may want to incorporate in Delaware.

 6. Investment Bankers Prefer Delaware Corporations.

Many investment bankers insist on a company being incorporated in Delaware before they take it public. Thus, if a goal is to eventually have an initial public offering (IPO), you may want to incorporate in Delaware rather than later having to convert the company to a Delaware corporation.

7. You Send A Message That It Is A National Company And You Understand the Preferences of Investors.

If you incorporate in Delaware, you send a message – “This is a national company.”  From a marketing perspective, this could be important for your customers and investors.  You also send a signal to investors that you understand their preferences and are serious about receiving investments.

8.  There Are Greater Privacy Protections in Delaware Than Some Other States.

Delaware does not require officer or director names to be disclosed on formation documents.  This provides a layer of anonymity that is not available in some states.

9.  Quality Customer Service and Quick Turn Around Times.

The Delaware Secretary of State’s Office has made it a priority to provide expedited filings. In fact, you can have your filings guaranteed to be processed in less than an hour.

In contrast, California has a 24 hour processing option, but it is not guaranteed to be completed within 24 hours and the rush processing fee is significantly more expensive than in Delaware.  This can be critical if you need to close a deal very quickly.

10.  Can Be Less Expensive To Relocate The Corporation.

The annual franchise tax in Delaware can vary depending on a variety of factors, but it can be as low as $125 per year with reporting fees.  In contrast, in California the annual franchise tax is $800.

If you incorporate in California and later move the corporation to a different state, you still have to pay the $800 annual franchise tax each year, but if you incorporate in Delaware and later move the annual franchise of your “home state” where you initially incorporated could be as low as $125.

What Are The Drawbacks to Incorporating in Delaware?

1. Annual Costs For A Registered Agent for Service of Process.

If you incorporate in Delaware, you will be required to have a registered agent for service of process.  The annual fees for this service vary, but companies such as Biz Filings and Legal Zoom charge $129 to $149 each year.

2. Extra Franchise Taxes.

If you incorporate in Delaware you will not only have to pay the annual franchise tax in the states in which you are “doing business,” but also in Delaware.

For example, if your company is headquartered in California, but you incorporated in Delaware, each year you will not only have to pay the $800 annual franchise tax in California, but also the annual franchise tax in Delaware.

3.  Extra Reporting Requirements.

If you incorporate in Delaware, you will have a second layer of reporting requirements.  For example, if you incorporate your company in Delaware, but are headquartered in California, you would have to comply with the reporting requirements in both states.

If the benefits of incorporating in Delaware described above are not important to your company, you may want to avoid the extra expense and time of being incorporated in Delaware.

If you incorporated your company in Delaware, what have you found to be some of the biggest advantages and disadvantages?

Disclaimer: This article discusses general legal issues, but it does not constitute legal advice in any respect.  No reader should act or refrain from acting on the basis of any information presented herein without seeking the advice of counsel in the relevant jurisdiction.  Doug Bend expressly disclaims all liability in respect of any actions taken or not taken based on any contents of this article.
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How Many Shares Should You Authorize For Your Delaware Corporation?

When forming a corporation in Delaware you will need to indicate on the certificate of Transactional Business Lawyer Startup Attorney San Franciscoincorporation the total amount of stock the corporation is authorized to issue.  There are two schools of thought on how best to make this decision:

1.  Only Authorize 5,000 Shares of Stock.

By March 1st of each year you will have to file an annual report and pay a franchise tax in Delaware.  The tax is calculated based on the authorized shares for the company by using either the Authorized Shares Method or the Assumed Par Value Capital Method, whichever is less expensive.

The Authorized Shares Method is based on the number of authorized shares and is calculated as follows:

     (i) If the company is authorized to issue 5,000 shares or less the annual franchise tax is $75;

     (ii) If the company is authorized to issue 5,001 to 10,000 shares the annual franchise tax is $150; and

     (iii) for each additional 10,000 authorized shares the annual franchise tax is increased by an additional $75.  The maximum annual tax under the Authorized Shares Method is $180,000.

You may, therefore, decide to authorize the company to only issue 5,000 shares so you pay the minimum amount of Delaware franchise tax each year ($75).

2.  Authorize Millions of Shares.

The second school of thought is to authorize millions of shares, typically 10,000,000 shares.

The rationale is individuals who receive 1,000,000 shares feel like they are receiving something of greater value and may be more motivated than individuals who receive 500 shares, even if the shares represent the same percentage of ownership in the company.

In addition, having more shares provides more flexibility in allocating shares on vesting schedules.

The drawback is in Delaware having more than 5,000 authorized shares results in a higher annual franchise tax.

If you authorize millions of shares, you will most likely calculate the Delaware annual franchise tax using the Assumed Par Value Capital Method.  The calculations under this method can be complicated, but the Delaware Secretary of State’s Office provides a good explanation and  examples of how to determine the tax here.

Please contact us at (415) 633-6841 or info@bendlawoffice.com to discuss how many shares you should authorize for your Delaware corporation.

Disclaimer: This post discusses general legal issues, but it does not constitute legal advice in any respect.  No reader should act or refrain from acting on the basis of any information presented herein without seeking the advice of counsel in the relevant jurisdiction.  Bend Law Group, PC expressly disclaims all liability in respect of any actions taken or not taken based on any contents of this post.

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What Is An 83(b) Election and Should You File One?

This article provides a broad overview of Section 83 of the Internal Revenue Code and how it affects founders and employees who purchase stock that is subject to vesting.  That is, stock that individuals gain rights to overtime.  It also discusses who may want to make an 83(b) election and how they can do so.

Who should be concerned about Section 83 of the Internal Revenue Code?

Section 83 should be of particular concern to founders and employees who receive stock that is subject to vesting.  Two examples are when a founder or an employee sign a restricted stock purchase agreement or if they agree to a stock option plan that allows them to exercise their options prior to vesting, but subject to a restrictive stock agreement.  However, these are just two examples – you should consult your tax and legal counsel to determine whether your particular circumstances raise a potential Section 83 issue before signing a stock purchase agreement.

What is Section 83 and what happens if you do not file an 83(b) election?

Under Section 83, if you purchase stock that is subject to vesting and do not file an 83(b) election, you will pay income tax on the difference between the price paid for the stock and the stock’s fair market value when it vests, even if you do not sell the stock at that time.  In addition, the holding period for determining whether the income from the sale of the shares qualify for long term capital gains treatment does not begin until the shares have vested.

How is the income from stock taxed if you make an 83(b) election?

In contrast, if you make an 83(b) election, the income from the stock is recognized at the time of the stock “transfer” - its purchase date – rather than when the stock vests. The long term capital gains holding period also begins on the purchase date of the stock.

Why is it important when the income from your stock is recognized?

Often the purchase price and the fair market value of stock on its purchase date are the same.  Thus, if you make an 83(b) election, you may not have any income to recognize from the stock purchase and may only have to pay capital gains tax when the stock is sold.

However, if you do not make an 83(b) election, you may have substantial income tax liability when the stock vests if the stock increases in value, even if you do not sell it.

You, therefore, may want to file an 83(b) election, particularly if you believe the stock is likely to increase in value.  By doing so, the income from the stock will be recognized before it increases in value.  As an added bonus, by filing the 83(b) you will also start the one year holding period for long term capital gains treatment from the date you purchase the shares.

What is an example of how stock subject to vesting is treated under Section 83?

You and a friend start a company and purchase stock at the par value of $.0001 per share that is subject to a one year cliff and a four year vesting period.  Your friend promptly files an 83(b) election, but you forget to do so.  At the end of the one year cliff the stock is worth $1.00 per share.  Because you did not timely file an 83(b) election, you would recognize $0.99 per share as income, even if you do not sell the stock.  As the remaining stock vests, you would also recognize income equal to the difference between the fair market value of the stock and the $.0001 per share price at which you purchased it.

In contrast, because your friend promptly made an 83(b) election, they would not recognize any income as the stock vests because the 83(b) election accelerated the recognition of the income from the stock transfer to the purchase date.

What are the drawbacks to making an 83(b) election?

If you do not pay fair market value for the stock and make an 83(b) election, you could possibly pay income tax on stock that does not provide you with any benefit.

For example, you join a company in June of 2011 that was started in May of 2010.  You purchase 1,000 shares of restricted stock at the par value of $.0001 per share.

However, the company has been running for over a year and the fair market value of the shares is no longer par value, but is instead $1.00 per share.

If you file an 83(b) election, you would pay income tax on the difference between the fair market value of the stock and what you paid for your shares.  In this example, you would pay income tax on $990.90.

If the company  later dissolves and the stock is worthless, you would not receive any benefit from the income tax you paid.  In addition, if you later forfeit the stock, perhaps by leaving the company, you will not be allowed a deduction for the income tax you paid on the stock at the time you made the 83(b) election.

However, if the purchase price and the fair market value of stock are the same and you make an 83(b) election, you would not have any income to recognize from the stock purchase and may only have to pay capital gains tax when the stock is sold.

How much time do you have to make an 83(b) election?

You must file an 83(b) election no later than 30 days after the stock has been transferred.   The stock has been transferred on the purchase date of the stock, which is when you assume ownership of the stock.  The postmark date is the date of the filing.

How do you make an 83(b) filing?

The 83(b) election must include:

  1. Your name, address, and tax identification number.
  2. A description of the property for which you are making the election.  For example, “25 shares of common stock in X company.”
  3. The date on which the property was transferred and the tax year for which you are making the election.
  4. The nature of any restrictions on the stock.  For example, “Stock must be forfeited if employment terminates before June 1, 2015.”
  5. The fair market value at the time of the transfer (ignoring restrictions except those that will never lapse) for which you are making the election.
  6. Any amount you paid for the stock.
  7. A statement that you have provided the required copies of the election, such as: “I have provided copies of this election as required in the regulation.”

The IRS does not provide a form 83(b) election, but you can find a sample 83(b) election form here.  It is strongly recommended that if you decide to make an 83(b ) election, you send it via certified mail.

What else must you do to properly file an 83(b) election?

You should make two copies of the 83(b) election:

  1. Attach a copy of the 83(b) election to your tax return for the year the stock was transferred; and
  2. Provide a copy of the election to the company from which you received the stock.

If your employer transferred the stock to someone besides yourself, you must also provide a copy of the 83(b) election to that person as well.

Do you have any 83(b) tips or advice?  If so, please provide them in the comments below.

Disclaimer: This article is intended to provide information for your general education.  It is not intended to be used and should not be used for the purpose of avoiding federal income tax penalties.  Although the article discusses general legal and tax issues, it does not constitute legal advice.  You should not act or refrain from acting on the basis of any information in this article.  Instead you should seek the advice of tax or legal counsel who can discuss the facts and circumstances of your particular business or personal needs.  Bend Law Group, PC expressly disclaims all liability in respect of any actions taken or not taken based on any contents of this article.

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The Top Six Reasons Your Company Should Have Strategic Bylaws

Although California does not require a company to have written bylaws, below are six reasons why every business owner should invest in a strategically thought out set of bylaws for their company:

1.  The Bylaws are the Company’s Legal Backbone.

A company’s bylaws provide the legal framework for how it operates, including the number of people who may serve on the board of directors, how to call a board of directors meeting, and the officer positions for the company.

2.  What if Your Company Does Not Have Bylaws?

If your company does not have bylaws in place, the laws of California will control how the company is run.  It is much better for the owners to determine how it would like to have the company operate than to rely on the state’s statutes.

It is similar to an individual not having a will or trust.  If they die, the state’s statutes determine how the individual’s assets are distributed.  Instead, the individual should thoughtfully think through how they would like their assets distributed and to set up the legal mechanism to enforce their plan.

Similarly, it is much better for business owners to strategically think through how they would like their company to operate than to rely on the state’s statutes, which might not always be the best fit for the company.

3.  Bylaws Provide Owners With Piece of Mind.

Every company eventually runs into challenges.  It is better to consider some of the potential turning points in your company and provide in the bylaws how you would like for the outcomes of these situations to be determined than to wait to make these tough decisions when interested parties and passions may create the perfect storm for litigation.

For example, what will happen if there is a legal dispute between the owners?  Do you want the company to be tied up in the expense and distraction of litigation or would you prefer arbitration?  What happens if one of the owners dies?  What if one of the owners wants out of the company?

The bylaws present an opportunity to calmly and objectively reflect on these issues before they occur.  It is wiser to answer these types of questions ahead of time and determine what might be the best solutions for your company than to rely on the default rules in the state’s statutes or to try to resolve them when clear heads are less likely to prevail.

 4.  Bylaws Help Protect Your Company’s Limited Liability Protection.

One of the primary reasons to form a corporate entity is to possibly have personal limited liability from the potential business debts and judgments against your company.

If a company does not have bylaws and is sued, a plaintiff could try to “pierce the corporate veil” by claiming the company should not be provided with the shield of limited liability protection because its owners did not follow corporate formalities.

In determining whether to pierce the corporate veil, the court would evaluate a number of factors to determine whether your company is legitimate, including whether you have the proper corporate documents and records.  By not having bylaws, a business owner is risking not being provided limited liability protection if it is sued.

5.  Bylaws Help Avert Misunderstandings Among Owners.

Communication and clear expectations are key to any successful relationship, including the relationship between business owners.  Bylaws clearly lay out how the company will be run, which can be crucial in preventing misunderstandings over how the owners expect the company to be managed.

6.  You May Need Bylaws To Set Up A Bank Account and to get Loans and Insurance.

Finally, if you would like to open a business account or apply for loans most banks will require you to provide a copy of your bylaws.  In addition, insurance companies may require you to provide a copy of your company’s bylaws before providing certain types of polices.

As a business owner it is often tempting to cut corners to lower costs. A strategically thought out set of bylaws should not be one of these cut corners.   Instead, bylaws should be recognized for what they are – one of the wisest investments a business owner can make to ensure the long-term effectiveness of their company.

If you have any questions regarding bylaws or any other business legal issue, please contact us at (415) 633-6841 or info@bendlawoffice.com.

Disclaimer: This post discusses general legal issues, but it does not constitute legal advice in any respect.  No reader should act or refrain from acting on the basis of any information presented herein without seeking the advice of counsel in the relevant jurisdiction.  Bend Law Group, PC expressly disclaims all liability in respect of any actions taken or not taken based on any contents of this post.

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How Can You Incorporate Your Company In Delaware Without Having a Physical Office In The State?

Business owners are often interested in incorporating in Delaware, but are uncertain ofStart-Up-Attorney-Small-Business-Lawyer-Company-Formation whether they can do so without having a physical office in the state.

A business owner does not need a physical location to incorporate in Delaware, but they do need to have a registered agent for service of process.

MyCorporation ($120), BizFilings ($129), LegalZoom ($159) and a number of other companies provide a registered agent for service of process in Delaware.

However, you will also need to register your business in each state you are doing business.  Most states have a very low registration threshold because they not only want to know which businesses are operating in the state, but to also maximize revenue from franchise and other business taxes.

If you have any questions regarding incorporating in Delaware or any other business legal issue, please contact us at (415) 633-6841 or info@bendlawoffice.com.

Disclaimer: This post discusses general legal issues, but it does not constitute legal advice in any respect.  No reader should act or refrain from acting on the basis of any information presented herein without seeking the advice of counsel in the relevant jurisdiction.  Bend Law Group, PC expressly disclaims all liability in respect of any actions taken or not taken based on any contents of this post.

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Why Your Website Most Likely Needs a Privacy Policy and What Must Be In It

Privacy Policy Entrepreneur Small Business Attorney Corporate Lawyer Start-Up Law Firm Start Up San Francisco Bay Area California

The California Online Privacy Protection Act requires a website to “conspicuously post” a privacy policy if it “collects and maintains personally identifiable information from a consumer residing in California.”

“Personally identifiable information” is defined very broadly to include a first and last name, a physical address, an e-mail address, a telephone number, or any other information that permits the contact of an individual.  So, even if you are not selling a product or service, your website will need a privacy policy if visitors can submit their e-mail addresses to receive news and updates from you.

What Must Be In Your Privacy Policy?

If a privacy policy is required, it must contain seven items:

  1. Information Collected – The categories of personal information the website collects.
  2. The categories of third-parties with whom the company shares the information.
  3. How the consumer can review and request changes to their information collected by the company.
  4. How your site responds to do not track indicators from web browsers.
  5. Whether there are third party tracking cookies (or other tracking mechanisms), such as advertising cookies. 
  6. How the company notifies consumers of material changes to its privacy policy.
  7. The effective date of the privacy policy.

Where Should Your Privacy Policy Be Posted?

If you are required to have a privacy policy, it must be “conspicuously posted.”  The policy is conspicuously posted if it:

  1. Appears on the homepage of your website – usually not an aesthetically pleasant option.
  2. The website can have an icon on the home page that contains the word “privacy” – not a bad option.
  3. The most popular option is to have a link at the bottom of the homepage that contains the words “Privacy Policy.”

What Can Happen If You Don’t Have A Privacy Policy?

Under the California Unfair Competition Law, website operators who do not comply with the California Online Privacy Protection Act could be sued by the California Attorney General, District Attorneys, County Counsel, or City Attorneys for “unfair competition.”

There Is Not A Template One Size Fits All Privacy Policy

Privacy policies vary depending on how the website collects and uses consumer information.  The key is to not only make sure the privacy policy complies with the law, but to also have the policy be easy to understand so visitors do not get frustrated with legalese when trying to determine how their personal information is being collected and used by your website.

If you have any questions regarding privacy policies or any other business legal issue, please contact us at (415) 633-6841 or info@bendlawoffice.com.

Disclaimer: This post discusses general legal issues, but it does not constitute legal advice in any respect.  No reader should act or refrain from acting on the basis of any information presented herein without seeking the advice of counsel in the relevant jurisdiction.  Bend Law Group, PC expressly disclaims all liability in respect of any actions taken or not taken based on any contents of this post.

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Top Questions to Ask A Business Attorney Before You Hire One

Business Attorney Start-Up Lawyer corporate law firm entrepreneur Start Up San Francisco California Bay Area Oakland Marin County Alameda Fixed Rate Project RateAs a business owner, you face many challenges and expenses. One of the most important decisions is how to meet the legal requirements of you business while balancing the need to preserve time and capital.  Below is a list of tips you may want to consider when selecting a qualified, trusted business attorney.

  1. Where do I start to find a business attorney?

The best method for selecting a great business attorney is to consult other business owners and your trusted advisors.  Does a business owner you trust have an attorney they would recommend?  Does your CPA, financial planner, or banker have an attorney they know and trust?  An attorney who has the money or aptitude to have their website on page one of a Google search is not necessarily the attorney who is best suited to help your business.

2.  Is the attorney well qualified to handle your specific legal needs?

Once you have a list of attorneys your biggest concern should be whether they are qualified to handle your legal needs.  An attorney who is fresh out of law school may be inexpensive, but it may be worthwhile to pay more for an attorney who has experience with your industry or navigating the nuances of your city and state.  For example, a family law attorney may be well qualified to handle a child custody dispute, but they may not be the best attorney to set up a new business entity.  It is important to keep in mind that attorneys are business owners as well and some are reluctant to turn away new business – even if they are not particularly well qualified to handle your legal needs.

How can you determine if an attorney is well qualified to handle your legal needs?  The first step is to review the attorney’s biography.  Do they seem like they would be a good fit for your company’s legal matters? If so, contact the attorney and interview them for the position for which they are “applying” – one of the most important roles in your company.  Some questions you may want to ask include:

  • How long have you been practicing law?
  • Have you had any ethics complaints filed against you?
  • Have you done this specific type of work before?
  • How many times?
  • Can you please give specific examples of work you have done in the past that is similar to the work you would be doing for me?
  • Can you please put me in contact with a client with whom you have done similar work?

You should also ask the attorney specific questions that are relevant to your legal needs to determine if they have the necessary background knowledge.  For example, if you are setting up a new company, you may want to ask the attorney to describe the difference between a S corporation and a LLC or how much the annual franchise tax is for a corporation in California.  These types of questions can be a good method to gauge the knowledge base of the attorney and whether they are best suited to help your business.

 3.  Are the business attorney’s rates reasonable?

Good business attorneys in the Bay Area typically charge between $275 to $375 per hour.  Partners in large law firms can charge as much as $1,200 per hour.  This can lead to large, unexpected legal bills.  What may seem like a simple legal question can result in you receiving a ten page memo and a three thousand dollar invoice.

However, some attorneys are willing to offer flat project rates, which can better allow you to budget for your legal needs.   An attorney may also be willing to put a cap on the amount they charge for a project.  For example, an attorney might say that it typically takes them three to five hours to set up a corporation.  If an attorney will not provide a flat rate for the project, they might be willing to agree to a cap that the project will not cost anymore than fives times their hourly rate.  Having a flat project rate or cap on the legal costs for a project can be key in helping you prevent surprise legal bills.

 4.  Prioritize Your Legal Needs.

It is easy to forget that an attorney is a small business owner and may encourage you to buy additional legal services that your business may not immediately need.  You should ask the attorney how they would prioritize the timing of the legal projects they recommend.  For example, can you pay to set up your company now, but wait to file for a trademark until you see if your business is actually viable?

5.  Is the Business Attorney Not Only Well Qualified, But Someone You Would Enjoy Interacting With?

It is important to not only find an attorney who is reasonably priced and well qualified, but someone you feel very comfortable working with.  Is the attorney someone you want to develop an ongoing relationship with over the years as your business grows?  Will you enjoy interacting with them or will you dread having to contact them?

6.  The Business Attorney Should Be A Member of Your Team of Trusted Fiduciary Advisors.

The attorney should be a member of a trusted group of fiduciary advisors who provide your company with quality advice for a fair price.  This team of trusted fiduciaries will vary from business to business, but will often include a business attorney, a CPA, a financial planner, a personal banker, and other individuals who cannot only provide you with sound advice, but who will genuinely care about the success of your business.

7.  Meet With Several Business Attorneys and Trust Your Instincts.

You should meet with several business attorneys.  Selecting the right business attorney is extremely important and you should take the time to make the right decision.  Most business attorneys provide a free initial consultation.  Take that opportunity to meet with several attorneys.  You are no doubt very busy, but finding a good fit early on can save dozens of hours down the road.  Trust your instincts in determining which business attorney is going to best help your business grow and succeed.

If you have any questions regarding hiring a business attorney or any other business legal issue, please contact us at (415) 633-6841 or info@bendlawoffice.com.

Disclaimer: This post discusses general legal issues, but it does not constitute legal advice in any respect.  No reader should act or refrain from acting on the basis of any information presented herein without seeking the advice of counsel in the relevant jurisdiction.  Doug Bend expressly disclaims all liability in respect of any actions taken or not taken based on any contents of this post.

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