Business and Commercial Services - Kenneth J. Nota

Business and Commercial Services

Please note that the description of services and areas or practice below are intended only as a brief summary of these practice areas and not intended as legal advice or guidance.

Business Entities.

Whether you are starting a brand-new business or you looking to expand by starting a new affiliate or subsidiary organization, we can help you with all your organizational needs. The firm will take the time to learn about your business and your objectives to provide effective and cost-efficient advice and services, tailored to your business needs. There are many different legal forms you can select from and determining which one is right for you depends on a variety of factors which I can help you evaluate so you make the right choice. We can also guide you through other steps that you must follow in setting up your business, such as obtaining a federal tax id number, filing for S-Corp status if appropriate, setting up bank accounts, filing with the state revenue department, employment, and workers compensation authorities, filing insurance applications and more. In addition, if you will have business partners, we can prepare the necessary agreements to ensure that your expectations and intent are clearly laid out.

Contracts and Agreements.

There is an old saying that “good fences make for good neighbors”. Well, when it comes to business and the law, a similar sentiment is that “good contracts make for good business relationships”. The court dockets are full of cases where poorly drafted contracts that did not clearly spell out the needs and intent of the parties led to disputes that cost both sides lots of money. This is true even when the parties started off as family or friends. Over the years, Ken has prepared and negotiated hundreds of contracts of all types. Whether it be sales-related contracts, supply agreements, manufacturing agreements, employment agreements, leases, licenses, settlements, non-disclosure agreements, or any other business or transactional agreement, we can get you what you need. As an in-house counsel, Ken not only prepared the contracts, but he also got to see how they worked for the business, which is critical. We will not just give you a boiler-plate document, we will make sure the agreement, whatever it is, fits the unique needs and interests of your business.

Employment Law.

One of the more challenging areas for businesses, big or small, has to do with employees. From the application process, through hiring and on-boarding, employment, and eventually separation, employers are faced with a myriad of employment law requirements with which they must comply. We can help you create policies, practices, and forms that you can use in your business so you can not only comply with federal and state employment law requirements but which also create a better work environment and relationship with your employees. Effectively communicating to employees your needs and expectations and providing feedback and training, is not only good for your employees, but it is also good for your business. We can also audit your existing labor practices and documents to see if there are any areas for improvement or change. Areas of trouble and risk include properly classifying employees for overtime purposes, classifying individuals as employees or independent contractors, and properly identifying what employee time is entitled to compensation. The firm can also work with your HR department to develop training programs and schedules, designed to not only meet your legal requirements, but your business needs as well, or we can provide that training directly to your employees.

Distribution and Franchising.

What good is it to have great products or services if you do not have a way to get them to market effectively, maximizes your return, and protect your long-term interests? There are many ways to sell what you have to offer, and we can help you decide what might be best for you and your business and execute on that plan. There are a variety of options to consider from inside sales to independent sales reps, independent distributors, consignees, licensees, or even franchisees. Deciding can be difficult but we can help you select the right option for you and then create the right documents needed for your business to carry out your plan.
Franchising can be a financially rewarding way to grow your business and grow your footprint. Similarly, if you are thinking of purchasing a franchise, it can be a great opportunity to run your own business with a company that has a proven track record of success and a proven business model. But whether you are the prospective franchisor or franchisee, there is a lot at risk, and making sure you get it right and protect your financial interests requires help. From the franchisor’s perspective, we can help you create needed franchise disclosure documents, the franchise agreement, associated training, and marketing materials, license agreements, create a new legal entity if necessary, and otherwise ensure that you are complying with a maze of federal and state laws, depending on your plans. From the franchisee’s perspective, we can help you review the disclosure documents and agreements, highlight areas of trouble or risk, and negotiate terms that protect the significant investment that you are making to secure the franchise. You do not want to lose that investment.

Mergers, Acquisitions and Joint Ventures.

If you are looking to buy or sell a privately owned business or if you are looking to enter into a joint venture with another party, we can help you through this process. The process often starts with a confidentiality agreement between the parties, so that needed information can be shared to evaluate the proposed transaction. If the parties are interested in moving forward, a letter of intent is signed, that outlines the basic terms and includes the steps and conditions that must be met for the parties to move forward with a binding deal. It also usually lays out how the transactions will be structured, for example, a stock purchase, a merger, an asset purchase, etc. Due diligence is the process where the parties, usually the buyer, get to engage in a more in-depth review of the seller’s business. Preparing the appropriate form of agreement, and including the right terms, are critical from the client’s perspective. As a buyer, you want adequate representations, warranties, and indemnity clauses so that if what you bought is different than what the seller represented and warranted, you have adequate protection to cover any losses as a result. From the seller’s perspective, you want to provide full disclosure and limit any liability going forward. There are also ancillary contracts that need to be prepared as part of the transaction. This could include employment contracts for key executives, financing agreements, non-compete agreements, licenses of intellectual property, consents from third parties, assignments of contracts, indemnity, and escrow agreements, and shareholder agreements.
As an acquisition, joint ventures are a way to grow your business through a formal relationship with another business. Joint ventures are usually for a specific, limited purpose, and that purpose, the scope of the business, and the rights and responsibilities of the parties must be clearly laid out. How the joint venture will operate, who will have control and management responsibility, how decisions will be made, must be negotiated and documented. Similarly, what events can lead to the termination of the joint venture must also be spelled out. Over the years, Ken has negotiated a variety of joint ventures, both domestically and internationally.

Risk Management.

One way to minimize potential problems and liabilities for your business is to have an effective risk management program tailored to your business and your markets. It is the process of understanding how the business operates, identifying areas of risk, identifying ways to mitigate the risk, regularly monitoring areas of risk, investigating problems as they develop, correcting deficiencies, and constantly working to improve risk mitigation. An effective risk management program is not just focused on specific legal concerns but all potential threats to the business, whether it be legal, financial, market conditions, accidents, natural disasters, outside forces, management errors, regulatory changes, and competition. An effective risk management program also looks for ways to transfer financial risk (e.g., insurance. We can help you develop a risk management program for your business, that minimizes risk to your business, people and property, and allows you to focus on growing your business.

Intellectual Property, Trademarks and Copyrights.

You invested a lot in developing your brand and growing your business through creativity and innovation. It is important that you protect your investment by protecting your intellectual property rights. What is intellectual property? It can take many forms and often can be some of the company’s most valuable assets. It can be your tradename, trademarks, service marks, or copyrights. Intellectual property also can include trade secrets, proprietary and confidential information for your business. In order to protect any intellectual property rights, you must take the appropriate steps. With things like trademarks, patents, and copyrights, it involves putting the world on notice of your claim through proper filings, designations, and use. With trade secrets and alike, it involves having the right internal processes and procedures in place to ensure that this information is secure, protected, and limited to only those people that have a need to know. Protecting intellectual property rights also involves enforcing those rights against infringers so you are not deemed to have waived or abandoned your rights. We can help you take appropriate steps to protect your valuable intellectual property rights.
Intellectual property also includes patentable developments. There are three general types of patents: utility patents, design patents, and plant patents. Patents are a highly specialized area of the law and are beyond the services that we provide. However. we can discuss with you the pro and cons of patents in general and refer you to specialists in this area.

Internal Investigations.

Internal investigations can arise for a number of different reasons. While often they arise in an employment context, such as harassment, discrimination, or wage and hour claims, they also can arise in another contexts such as allegations of fraud, corruption, bribery, embezzlement, safety concerns, misuse of company assets, government or regulatory actions, cybercrimes, or breach of fiduciary duty. When an issue does arise, it is important for many reasons, to conduct an appropriate thorough investigation into the allegations. Conducting the investigation properly, preserving records and testimony, respecting employee rights, protecting attorney/client privilege and work product, creating the proper report, making the proper disclosures to leadership and if required, government agencies, and taking appropriate remedial action if necessary, are all critical to the process and help minimize risk to the company. Ken has conducted many investigations over the years and can guide you through this process, advise you of the pros and cons of having an employee of the company or outside counsel conduct the investigation, and help you develop an appropriate response plan that is in the best interest of the company.

Compliance Policies and Programs.

What is an effective compliance program and why do you need it? In short, it starts with an effective Compliance Policy, which is a written document that sets out your company’s values and its commitment to conducting business in an ethical, responsible, and legally compliant manner. Sometimes this is called a Code of Conduct, or Code of Ethics. This document can be simple or incredibly detailed. But, as a minimum, it needs to convey enough information with enough specificity, so that employees and business associates know what is expected from them, and as importantly, what they can expect from you in the way you conduct your business. We can help you develop a code of conduct that is tailored to your business and reflects your values. But the best-written code of conduct is of little value unless it is part of a thoughtful and effective compliance program. This program identifies compliance risks and makes sure they are addressed properly. It requires communicating and educating employees on a continuous basis so that the values and requirements of the policy are clearly understood. It also involves monitoring and auditing compliance on a regular basis to be sure that people know, understand, and are abiding by those policies. It must provide for a mechanism for employees to report, confidentially, without fear of retaliation, potential violations and provide for a proper investigation of all claims. Finally, it must include appropriate remedial action and continuing review so that improvements can be made.

Having an effective compliance policy and the program is good for business. It mitigates the risk of violations of the law that can lead to financial losses for the company, and if there is a violation, the existence of a good compliance program can reduce any penalties you might be facing, or even act as a complete defense. A compliance policy also lets existing and prospective customers know that you are a good, ethical and responsible business committed to doing things the right way.

Commercial Lending.

Whether you are a commercial bank making the loan or a business in need of financing, our office can help you with that process. Ken has experience representing major lenders in asset-based commercial loan transactions ranging from a few hundred thousand to several million dollars. From commitment letter to closing, we can prepare and negotiate the agreements and documents necessary to make sure it is done properly and your interests are protected.