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Corporate Meetings: What Every Business Owner and Shareholder Should Know

September 17, 2014

by Matt Smith, Law Clerk and Salene Mazur Kraemer

 

You are a business owner.

You are a shareholder in a business.

You never have shareholder or director meetings.

MISTAKE!!

If you ever want to sell your business, you need proof of what happened in the past.  Memorializing the ongoings of your business with corporate minutes and resolutions and corporate meeting is very important.  A corporate minutebook is essentially a diary of the significant business events that have transpired.

Business owners like me are often so mired in everyday affairs of the business that he or she cannot take the time to meet with other members. We are juggling all the balls in the air, afraid that some may drop. Also, sometimes, we see the “curve but not the road ahead”.

You should know that a future investor or purchaser or lender will demand copies of your corporate minutes or resolutions. Moreover, not only will the minutes provide important documentation of the corporate business, but may serve as tangible evidence of the proceedings in case of dispute later. Perhaps, if an action required shareholder approval, and such approval was never documented, disgruntled shareholders could later challenge that action, giving rise to a “he said, she said situation”. Avoid this and start consciously conducting formal meetings and drafting minutes of such meetings. Often, your business lawyer is present and drafts any necessary resolutions (hint hint: that’s us). Allow us to provide some general info on corporate minutes, meetings, and resolutions.

A legal entity, such as an LLC or other corporation, is formed to help shield a businessperson from individual liability arising from doing business. This legal protection, however, can be pierced if a businessperson does not follow certain formalities (i.e., commingling funds, etc.). One of the most fundamental of these formalities is the corporate meeting.

FOLLOW YOUR OPERATING AGREEMENTS.  The articles of incorporation or operating agreement for a company may mandate annual or quarterly meetings. The articles or operating agreement may also provide for instances in which a “special meeting” is required to approve certain actions, such as: obtaining a loan, issuing equity, and/or replacing a director or officer, etc. The approval or rejection of such actions should be recorded in the “corporate minutes” and separately evidenced by a “corporate resolution.” If an operating agreement so provides, some actions can be approved or rejected without any meeting at all and by written consent. All corporate minutes and corporate resolutions should be safely placed in a special corporate binder.

WHAT TO BRING: Regardless of the meeting type, it is best to insure that certain documents are always available. Insure that a hard copy of the following items are present:

• Articles of Incorporation and any amendments;
• the operating agreement;
• any Corporate Bylaws;
• the minutes of all previous meetings;
• a print out of current information held on file by the state agency with which the corporation is incorporated;
• most recent financial statements

By having a hard copy of these items, it will provide any and all members an opportunity to review those items and to suggest amendments. Member can also be certain that they are obtaining the requisite number of votes for a specific action.

CORPORATE MINUTES. Corporate minutes must not only document the date, time, and location of the meeting, but should also indicate all parties present. The minutes will also provide a record of the topics discussed. The minutes should be signed at the adjournment by all shareholders or members present.

SUGGESTED TOPICS CHECKLIST: At a quarterly or annual meeting, the members should at the least discuss:

• approval of last meeting’s minutes;
• the financial health of the business, possibility of distributions.
• growth plans for the business;
• the sale of any significant assets;
• changes that should be made to the directors or officers of the company;
• material change in the purposes or nature of the Company’s business;
• merger of the Company with another entity;
• sale or lease of any real estate;
• decision to incur certain level of debt;
• contracts, leases, expenses, or other agreements involving more than a certain dollar amount;
• change in tax status or elections of the Company;
• change in the registration or form of the Company;
• acts to dissolve the Company, make an assignment for the benefit of the Company’s creditors, appointment of an examiner or receiver or to file a voluntary petition for Chapter 11 Bankruptcy for the Company;
• significant tax or other debt delinquencies (with secured or unsecured creditors)
• loss of major clients;
• significant outstanding accounts receivables;
• removal or addition of an officer or member of the board of directors; and
• any other operational, human resource, financial, marketing, sales issues that need immediate attention.

The financial statements should show not only the balance sheet of the company, but also the current capital account balance for each shareholder or member. This information is essential not only for discussing the health and future of the business, but in determining whether and in what amount a distribution to a shareholder may be permitted.

To insure that you and your business are maintaining the essential corporate formalities, speak with an attorney to review the corporate records. If you need to recreate minutes from the last few years, contact your business attorney to do so.

The New Website Evolving: Part 1- Buzzwords and Color Schemes

May 20, 2014

apple-logo-colors-lines-3d              In celebration of my 5-year anniversary as a business owner, we are updating the firm brand and revising the website.  For my graphic designer, I wanted to boil down my philosophy about life, what drives me and my firm, my value set, mission statement into a laundry list of buzzwords.  I want the site and logo and photos to reflect this value set.  I thought I would share with you my process.

VALUE SET:

  • Community, connected, connectivity, group, synergy sharing, network, collaborative, includer, social, wide foot print, attraction, retention, followers, following, resolve
  • Entrepreneurial, outside the box, hear the beat of a different drum, assist serial entrepreneur clients in next venture, leadership, innovation, change, revolutionary
  • Technology, cutting edge, reengineer, SOCIAL MEDIA, breakthrough, creative, change
  • Education, information, knowledge, learner, communicator, consultant, confidante, legal and business scholars, advisor, mentorship
  • Business, boutique, niche, money, corporate, number crunchers, financial acumen
  • Power, competition, winning, pushing, being the best you can be, aggressive, firm, achiever, grinders, book worms, research mongers, orators, top notch legal skills
  • Simple, efficient, bottom line, bang for your buck, authentic, work/life balance, talk in plain English, responsive, accessible, clear, custom, self-made, work ethic
  • Bankruptcy, Turnaround, restructuring, creating simplicity from chaos/clutter, finding opportunity from difficulty, fresh start, assess risk, protect, defend, prevent
  • Positivity, growth, profitability, making livings, supporting families, revitalizing communities, change
  • Vibrance, life, joy, passion, service to others, service to community, family, children, fun

TAGLINE: OUR BUSINESS IS HELPING YOU WITH YOURS

COLOR:

I am also updating the color scheme. Right now the colors are teal and dark grey and white. I wanted to add in a third color: chartreuse, yellow, orange, lilac. I found these color combos on Pinterest (a site I use very infrequently).  See board here. We don’t want to do too much violence to the logo and colors as they now stand.  But I think I am going to go with several colors. I like the use of shadows, shading, shades of color, reflection.

LOGO itself:  The first logo is the M and K letter melded in to one.  Like a business chart, showing growth.  I wanted hard, contemporary, lines.   This time around I think I want circles.   I will keep you posted on what evolves.

mazurkraemerlogoreflectiongreen (2)

My Top 3 Reasons Why You Should “Facebook Friend” Business Colleagues

April 29, 2014

facebook_linkedinI know some of you are not on Facebook.  Or, you are on Facebook and you read but do not post.  Or, you use Facebook purely for personal reasons.  Your LinkedIn profile is where you ‘link” with your business colleagues.  I want to challenge your use of Facebook right now.  Here are my Top (3) Three Reasons to “Facebook Friend Business Colleagues:

  • Deepen Your Business Relationships.
  • Stay Top of Mind.  You know you check your Facebook Feed more often than your LinkedIn Feed.
  • Turn a 3-minute Conversation into a 10-Year Friendship.

Last week, I was part of a panel  at the International IWIRC Spring Conference in Washington, DC.  IWIRC Talks Social Media (slides).    There were four restructuring professionals, each talking about a specific social media platform.  My focus was blogging.  The focus of Natasha Labovitz, a fellow bankruptcy lawyer who runs the Restructuring Group at Debevoise & Plimpton, in NYC, was Facebook.  She talked to the audience about how you can use Facebook professionally to deepen your relationships and maintain them over a long period of time.

I know, I know,  You are thinking- well I don’t want my business colleagues knowing everything or anything regarding my personal life.  But you must know that with the advent of social media there is now a blur between our professional and personal lives.   ALSO, know that you can use SEGMENTING to help you filter those posts that are for your business colleague audience, high school friends, college friends, etc. through “LISTS.”  Natasha said she always uses Lists.

When you post a “status update”  you are given the choice for certain “lists” to see such an update.  Natasha has a work list and spares her work buddies from every single family reunion or t-ball photo.

She has inspired me to try to do the same thing.

In the past, I carefully “friended” a few colleagues whom I had met years ago at various conferences.  Without a doubt, being Facebook friends with them has helped me to know them better and keep them top of mind when I travel to their cities.  Reading their posts has given me fodder for conversation when I see them again at the next annual conference.

I returned from the IWIRC Conference and the American Bankruptcy Institute (ABI) Conference (they were back to back), with a stack of business cards.   While “networking”, some of my conversations were just a minute or two.  Friending each other on Facebook will allow me to extend that minute or two to years.    I am about to send follow up emails to everyone I just met and will ask most (maybe not all) of the people I met to friend me on Facebook if they are comfortable doing so.   This is a social media experiment for me but I have a strong feeling that it will work in my favor.

All of the usual warnings I give about posting to social media platforms still ring true.  See my Powerpoint regarding do/don’ts.   Be mindful of what your new Business Facebook friend will see.  Posts are permanent and can be viral and can get you fired.

Social Media Dictionary: Basic Blogging Terms You Should Know

April 22, 2014

Image

In preparation for my talk in DC on Thursday, I was asked to compile this list of blog terminology.  Here you go:

Archives: Blogs can be sorted into a date or theme-based archive so readers can find older information easily.

Authors: The people who write the blog posts. There can be one or more authors for a single blog. A blogger can also invite guest authors.

Blog: Web Log. A journal that is on the internet that is chronologically ordered.

Blogroll: A list of related blogs that a blogger is promoting on his or her blog that he or she finds interesting or useful. Blogrolls promote reciprocity and increased readership.

Categories: The subjects into which blogposts can be categorized. Readers can then focus on topics that most interest them.

Comments: Short text messages in response to blog posts, left by readers. Comments encourage interaction and conversation.

Header: Graphic at the top of the blog that displays the name of the blog, often includes a logo or other visual element. Is visible on every page of the blog.

Permalinks: Short for “permanent link”. Each time a blogger adds a post to his or her blog, that post typically appears on the blog’s home page. At the same time, blog software creates a permalink page to contain only that blog post and its comments. Permalink pages are why blogs do so well with search engines. Every post adds a new page to your blog website and provides another opportunity for your blog to come up as a search result.

Post or entry: Each time a blogger updates the blog, he or she creates a blog post or entry, which is added to the blog.

RSS Feed Link: RSS is Really Simple Syndication. Readers can use RSS to subscribe to your blog by using a newsreader, like Google Reader. From a newsreader phone app or website, he or she can read the latest updates from several blogs in one place, without having to visit each and every blog every day.

Sidebar: Most blogs are laid out into two or three columns, with the middle column being the largest and containing the blog posts themselves. The other columns or sidebars can contain peripheral information, latest tweets, most popular posts, author pictures, archives, blogrolls, search windows, share buttons, and links to Twitter account, Facebook page, and/or firm website.

SOURCE: Blogging for Dummies, Bair, Amy Lupold & Gardner, Susannah (2014 5th edition)

 

 

Mamma Mia! Sbarro LLC Turns to Bankruptcy Once Again

April 22, 2014

0310-sbarro_full_600          The well-known pizza chain Sbarro LLC, and its numerous related entities (“debtors,” collectively), filed for Chapter 11 bankruptcy protection in the United States Bankruptcy Court for the Southern District of New York on March 10, 2014.  A motion filed by debtors for joint administration of the cases was granted on March 12, and the case has been assigned to the Honorable Martin Glenn.

Both assets and liabilities in the case are listed to be between $100 million and $500 million. Between 1,000 and 5,000 creditors are estimated to exist, with various lease obligations constituting the bulk of debtors’ unsecured debt. However, Vistar Corporation, a trade creditor, holds the largest unsecured claim at approximately $540,000.

According to debtors’ pre-packaged reorganization plan, debtors propose to classify claims in the following manner: (1) Other Priority Claims; (2) Other Secured Claims; (3) Prepetition Secured Lender Claims; (4) General Unsecured Claims; (5) Intercompany Claims; (6) Equity Interests in Sbarro Holdings, Inc.; and (7) Intercompany Interests. The pre-packaged plan stipulates that classes (1), (2), and (7) will be “unimpaired.”  Impaired creditors are those whose legal rights against the company are being changed by the reorganization plan. Usually, this means the plan calls for paying them less, and usually far less, than what they’re owed.  Unimpaired creditors are those whose legal rights against the company aren’t changed by the plan

 

This is not the first time the debtors have turned to bankruptcy for relief. In April 2011, the rocketing prices of raw materials and declines in mall traffic (where many of debtors’ stores are located) forced debtors to file Chapter 11. Debtors’ emerged from bankruptcy having slashed debts from approximately $400 million to $130 million.

Debtors are represented by Nicole Greenblatt of Kirkland & Ellis, LLP.

Thinking About Starting a Blog? : Be Inspired by the 9 Main Purposes of This Blog

April 13, 2014

blog-wordle-1

For my presentation in Washington, DC, in two weeks for the International Women’s Insolvency Confederation Spring Meeting, “IWIRC Talks Social Media” panel, I have taken a look back at the posts I (together with my law clerks) have written for my two blogs.  Here is what I have discovered about my writing.  Hopefully, this post will inspire you to blog about your craft, passion, favorite subject matter.  Let your enthusiasm be contagious.

The purposes of a blog can be many fold.  I have found that I write mostly for the following purposes:

Humanize Myself: I want to humanize myself as a lawyer/business. I am real person, not just a headshot.  I eat and breathe.  I have a family and a life, in addition to my legal work. Here are some such posts:

 

Evidence Industry expertise:  As a person whose livelihood depends on rainmaking, I have always known that developing an expertise in a specific industry is important. For me, my niches include fashion, technology, media, real estate.  I wish I were even more laser-focused, but with bankruptcy work, the cases cut across many industries.

Add value/inform: My lawyer coach Cordell Parvin has taught me that marketing should be “pull marketing” not “push marketing”. He says to create content that makes people want to be pulled toward you because you add value to them.  Writing this content comes easily to me because I always wanted to be a journalist and a professor.  Sitting at a Starbucks writing a blog post is down time for me.  Most of my posts over the last four years are of this nature.   I was ramping up my law firm and wanted to share was I was learning.  Here is a sampling:

Inform public and clients about local resources: When I consult my clients, I am obligated to let them know about the vast resources out there for entrepreneurs. Instead of giving them a flyer, we email them blog post links.  Here is a sample:

Chatham University Center for Women Entrepreneurship: Assisting Women Sine 2005

Need to Start a Business in Western PA: Read About Bridgeway Capital

  • Inform and promote community interests: Ever since I opened up shop in my hometown, I have also written more posts about events or concerns that impact the community.  I write things about which I authentically care. Authenticity is important.

WV’s 2014 Economic Outlook: Town Meeting with Attorney General’s Office

  • Promote outside events: A blog is a good way to SPREAD the word about external events, firm events, and about cool things your clients are doing.

Intellectual Capitol Presents: Where to Start: An A to Z Presentation for Entrepreneurs

  • Promote firm events:

2013 Holiday Fair Celebrating Women Swimming in the Stream of Commerce

Did you ever have a Grand Opening for your Business-Should you Re-Open your Business?

  • Customer profiling:

Coffee Talk with Stan Muschweck of Standout Marketing

What are Bloggers Saying About your Product or Service? Lessons Learned From Maniac Magazine’s Megaphone Marketing

Blue Tomato Design Firm: Salene’s Business of the Month

  • Evidence legal expertise: I do write about legal topics, but not that much. The posts take more time to put together.  I should repurpose more of my legal writings; I had to research/write them anyway for various engagements.  In April of 2013, upon Cordell’s insistence, I decided to spin off into another blog www.steelvalleybankruptcy.wordpress.com focused on business bankruptcy (my niche).  That is where I post more technical posts.  The audience for that blog is different than the audience for this one.

-New Developments:

Freedom Industries Files for Chapter 11 Bankruptcy Following Historic WV Chemical Spill

Dragon Fire Inc. Running Out of Breath as it Files it’s Chapter 11

Dance Moms Instructor Abby Lee Miller Filed for Chapter 11 Protection: Public Disclosure of Private Facts

Fat Lady May Sing for the Last Time: The New York City Opera Files Chapter 11

-Technical:

The Company You Own Files Bankruptcy: Can Creditors Still Come After You?

Inside the Trenches of a Chapter 11: The Firehose of the First 30 Days

Chapter 7 or Chapter11: Which Bankruptcy Option is Best For My Business?

What the Heck is a Preference Action? Paying Off Favorite Creditors As a Business Tanks

Corporate Bankruptcy or Business Wind Down: Pros and Cons of a Chapter 7

Inside the trenches of a Chapter 11 Bankruptcy: Preparing the Initial Filing

What are the 5 Cs of Business Lending: Getting Financing in Today’s Environment

Call or email me if you want to talk more about getting your own blog started.   I will share my slides from my IWIRC panel as soon as we are finished!

 

 

 

 

 

Consumer Bankruptcy FAQ: Do Not Forget Forms of identification For Your 341 Meeting

April 13, 2014

ssncard     FAQ:  My 341 meeting of creditors is approaching.  What forms of identification do I need to bring with me to the meeting?  What if I don’t have a drivers’ licenses or social security card?

      Most people bring a drivers license or passport and a social security card.  Do not forget to bring these.  The Chapter 7 Trustee will adjourn the hearing if you do not have proper ID.  This will mean more lawyers fees for you and possibly having to ask for another day off of work.   ORDER a duplicate SOCIAL SECURITY CARD if you have lost yours.   A W-2 works too as long as it has your social security number on it.  See entire list of acceptable id at this link.

 

 

 

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