JWI 575 New Business Ventures & Entrepreneurship, Week7 summary, 8/18/13
This was another
excellent week of learning again. I never really thought about the
legal aspect of creating a business this deeply until now. I now
understand clearly the critical importance of choosing the right legal
structure at the very beginning of the venture itself.
After creating the mission, vision, values and strategy for the company, the structure of the firm should be chosen.
The right legal form of the business depends on the short-term and
long-term needs and goals of the firm (Kaplan & Warren, 2010). Due consideration
should be given to the tax laws and cash flow needs of to arrive at the
best fit for the legal structure of the company.
Additionally,
legal contracts such as Non-Disclosure Agreements, Employment
Agreements and Stock Option Agreements (JWI 575, W7L1) are key to enter
into proper contracts with
employees and create a cohesive and motivated work force. Great people
decisions are vital especially in finding competent lawyers and
accountants who need to stay ahead and abreast of the changes in laws.
To stay on top of the legal issues and ensure compliance with state,
federal and international laws a comprehensive checklist (Kaplan &
Warren, 2010, pp 144-147) should be used.
Detailed takeaways below
Dr DP
Reference
Kaplan, J. & Warren, A. (2010).
Patterns in Entrepreneurship Management. Third Edition. John Wiley & Sons, Inc.
JWI 575 New Business Ventures & Entrepreneurship, Week7 summary, 8/18/13
I. Choose the legal structure that fits the needs of the company
There are five legal forms of business - the best fit depends on needs of the company
Depending on the
short term and long term needs
of the company, five legal forms of the business can be considered
namely sole proprietorship, C-corporation, S-corporation, Partnership or
Limited Liability Company (LLC).
A sole proprietorship is the simplest
form of business in which a single owner does business himself or
herself. It is easy to set up and involves low start-up fees. The owner
gets all the profits and retains total decision-making authority.
However disadvantages include unlimited personal liability, limited
skills and capabilities of the sole owner, limited access to capital
from lending institutions and the lack of continuity for the business
when the owner dies or becomes incapacitated.
The C-corporation is the most common form of business ownership and
is preferable especially for early-stage companies that are looking to
raise capital. The corporation in this case is a separate legal entity
apart from its owners and may engage in business, issue contracts, sue
and be sued, and pay taxes. Stockholders own the company, a board of
directors drives the overall operation of the company, and officers such
as the President, CEO and Vice Presidents manage and lead the day to
day operations of the company. This form of business provides the most
flexible structures for various rounds of private equity investments and
venture capitalists demand this for of incorporation.
Advantages of a C-corporation form of business include limited liability
of the stockholders, ability to attract capital, ability to continue
indefinitely without depending on a single individual or a group of
individuals, transferable ownership and a wide base of skills, expertise
and knowledge of the employees, officers and the board of directors.
Disadvantages of a C-corporation include cost and time involved in the
incorporation process, double taxation wherein corporations are taxed on
the profits while shareholders who receive dividends also pay tax, high
administration and compliance costs.
The S-corporation elects to avoid corporate income tax and gets tax
benefits by being a domestic company with only one class of stock which
is owned by individuals and certain trusts. Shareholders pay the taxes
directly and cannot be nonresident aliens and a maximum of 100
shareholders are allowed. Stringent rules are to be followed to maintain
the S-corporation status and there are administrative and cost burdens
as well. S-corporation may be beneficial for startup companies that
anticipate net losses or highly profitable firms with substantial
dividends to payout to shareholders.
A Partnership is defined an association of two or more people
carrying on as co-owners of a business for profit. It is easy to
establish and benefits from the complementary skills of the partners.
Profits can be divided among the partners and each partner's asset base
improves the ability of the business to borrow needed funds. So long as
there is one general partner who will face unlimited liability, partners
with limited liability can come together. As the partnership can react
quickly and creatively to changing market conditions new opportunities
can be swiftly seized. Like sole proprietorship, a partnership company
can avoid double taxation. Consulting groups such as BCG or McKinsey are
examples of parternships. Challenges with this form of business is
unlimited liability for one partner, inability to attract capital,
restrictions of continuity or elimination of general partnership and the
potential for personality and authority conflicts.
An LLC is a blend of some of the best characteristics of
corporations, partnerships and sole proprietorships. It is a separate
legal entity like a corporation but it is entitled to be treated as
either a sole proprietorship or a partnership for tax purposes. The
owners do not assume liabilities for debt and may offer different
classes of memberships and there are no restrictions on the number and
types of owners. However there may be difficulties in expanding the
business out of state or in transferring the ownership. Requirements may
vary by state.
II. Legal contracts - NDA, EA, SOA
Nondisclosure agreements, employment agreements and stock option
agreements (JWI 575, W7L1) are key to enter into proper contracts with
employees. Nondisclosure agreements help to protect company secrets.
Employment agreements spell out the terms under which intellectual
property is developed by employees within the company and ultimately
owned by the company. Such agreements also clarify grounds under which
employment can be terminated. Stock options offer a great way to align
the growth of a company with incentives for employees. By sharing the
wealth created, a company can motivate long term commitment from its
work force.