Archives for December 2013

December 15, 2013 By Wesley Jones

ASSET PURCHASE AGREEMENTS: Closing Considerations in North Carolina

Depending upon the type of Business Assets involved, the following are just a few of the documents that a potential Buyer and Seller may want to include in an Asset Purchase Agreement at Closing:

The Parties will need a Bill of Sale and Assignment of Property.

The Buyer should determine if it needs to form a new Business Entity with which to buy the Seller’s assets.

The Buyer should consider whether it wants or need a Noncompetion Agreement with the Seller and/or the Seller’s Shareholders/Members, and/or Key Employees.

If Intellectual Property is involved, the parties will need an Assignment of Trademarks, Patents, and/or Copyrights, as applicable.

If the Seller’s website domain, email addresses, and/or telephone numbers are involved, the parties will need an Assignment Agreement to cover these items.

The parties will need an Assignment of Contracts, Leases, and/or Liabilities as applicable.

If the Buyer wants the Seller’s owners and/or Key Employees to assist Buyer with Buyer’s new business for a period of time after Closing, the Buyer will need an Employment/Consulting Agreement with these parties.

If the Buyer is not paying cash at Closing, the Seller will at a minimum want a Promissory Note signed by the Buyer, and a Seller should consider whether additional security is needed in the form of a Personal Guarantee Agreement signed by the Buyer’s individual Owners, a Security Agreement on transferred personal property, or a Deed of Trust on transferred Real Property.

The Buyer will want appropriate Approvals by the Seller’s Stockholders/Members and Board or Directors/Members.

The Seller will want appropriate Approvals by the Buyer’s Stockholders/Members and Board of Directors/Members.

If you are planning to Purchase the Assets of an existing business, the foregoing documents are just a few that a potential Buyer and Seller may want to include in an Asset Purchase Agreement. If you need help or advice, call an experienced Business Attorney. Call Wesley Scott Jones now at 910-256-5800 for a free telephone consultation.

Wesley Jones is a Business Lawyer serving in Wilmington, North Carolina serving all of Southeastern North Carolina including New Hanover County (e.g. Wilmington, Kure Beach, Wrightsville Beach, Carolina Beach and the areas of Ogden, Masonboro, Myrtle Grove, Landfall, and Mayfair), all of Pender County (e.g. Burgaw, Surf City, Hampstead and Topsail Beach) and all of Brunswick County (e.g. Bald Head Island, Bolivia, Calabash, Leland, Shallotte, Southport, Saint James, Ocean Isle, and Oak Island).

The following are just a few of the Business Services that Wesley Scott Jones provides to clients: Annual Meeting Minutes, Annual Reports, Assignments, Board of Director’s Meeting Minutes, Business Entity Startup and Formation, Buying or Selling a Business, and Business Dissolution and Liquidation, Bylaws, Contract Review and Drafting (including Non-Compete or Noncompetition Agreements, Confidentiality Agreements, and Nondisclosure Agreements), Due Diligence Research, Drafting Shareholder and Operating Agreements, Drafting Shareholders and Directors Meeting Minutes, Leases, Licensing, Limited Liability Company Formation, LLCs, Meeting Minutes, Non-Profit Corporations, Non-Solicitation Agreements, Organizational Minutes, Partnership Formation, Professional Malpractice, Promissory Notes, Regulations, Shareholder Agreements, Shareholder’s Meeting Minutes, and Starting and Operating a Franchisee Business.

December 14, 2013 By Wesley Jones

ASSET PURCHASE AGREEMENTS: Pre-Closing Considerations in North Carolina

Depending upon the type of business assets that you want to purchase, the following are just a few of the things that a potential Buyer should consider:

Do you need a Nondisclosure Agreement with the Seller?

Is there an existing Broker/Finder Agreement that affects the transaction?

Have you determined all of the Related Parties on which due diligence should be performed (Seller, Stockholders/Members, Subsidiaries, or other Affiliated Entities)?

What is the Lien Status of the property to be conveyed?

Can the Seller produce a Certificate of Good Standing from the Secretary of State?

Are there any Third Party Consents required by Contracts with third parties that are to be assigned by Seller and assumed by Buyer?

Have you reviewed the Seller’s Financial Information?

If you are planning to Purchase the Assets of an existing business, these are just a few of the considerations that must be thought through and preferably verified prior to Closing on an Asset Purchase transaction in North Carolina. If you need help, call an experienced Business Attorney for advice and help. Call Wesley Jones now at 910-256-5800 for a free telephone consultation.

December 11, 2013 By Wesley Jones

OPERATING A FRANCHISE BUSINESS IN NORTH CAROLINA

Operating a franchise business is a great way to operate a business provided you begin the process properly and stay compliant with all relevant laws. A franchise business typically comes with a set framework for how the business will be conducted, products or services offered, pricing, and special promotions. Franchisors also give franchisees very specific guidelines for everything from advertising to how services or products are offered to the public. For many, running a franchise business is ideal – they are provided with a business formula with a proven track record of success.

As an attorney for numerous business owners in and around the Wilmington area, Wesley Scott Jones knows that it can potentially be easier and less stressful to operate a franchise as opposed to a solo enterprise. Another plus is the fact that around the country, franchises seem to have a higher survival rate compared to other similar ventures. Having the financial backing and name recognition of an established business certainly doesn’t hurt.

However, starting and operating a franchise business can be daunting, complicated and unnerving. One of the problems that can arise is the iron-clad nature of the contracts that large franchisors want franchisees to sign. What should be the proper term for the contract – 5, 10, 20 years? What kind of Security Agreements, if any, should you be willing to sign in favor of the franchisee? Do you fully understand all of the terms and conditions of the Franchise Agreement and will you be able to comply with all them? Should you operate the new business as a sole proprietorship or under a new Business Entity? That’s why anyone considering a franchise business should discuss his or her plans with a business law professional, like Wesley Jones.

Wesley Jones also has experience with taking a business from private ownership to franchise, including consulting on and drawing up Contracts and all legal paperwork involved in the transaction.

To schedule an appointment with attorney Jones, please give his office a call at 910-256-5800. Initial phone consultations are free. Call now!

The office is located in Lumina Station, just before the Wrightsville Beach drawbridge. The address is 1904 Eastwood Road, Suite 301. Parking is free parking!

Wesley Jones is a Business Law Attorney serving all of Southeastern North Carolina including New Hanover County (e.g. Wilmington, Kure Beach, Wrightsville Beach, Carolina Beach, Landfall and Mayfaire), all of Pender County (e.g. Burgaw and Topsail Beach) and all of Brunswick County (e.g. Bolivia, Southport, Ocean Isle, and Oak Island).

December 8, 2013 By Wesley Jones

RESIDENTIAL CONSTRUCTION CLAIMS IN NORTH CAROLINA

Residential Construction Claims come about within a variety of contexts depending upon who you are in the process:

1. Homeowners:

Common claims that existing or potential Homeowners can have include claims against the General Contractor, a Design Professional (Architects, Engineers, Landscape Architects, Surveyors, etc.), a Subcontractor, a Material Supplier or a Real Estate Agent, among others.

Claims against the General Contractor include: Breach of Contract, Delayed Performance, Breach of Express Warranties, Breach of Implied Warranties, Breach of Warranty of Workmanlike Performance, Breach of Warranty of Habitability, Negligence, Negligent Construction, Negligent Supervision, Negligent Inspection of the Work, Negligent Selection of Materials, Misrepresentation, Fraud, Unfair and Deceptive Trade Practices, and Failure to Be Properly Licensed.

Claims against a Design Professional include: Breach of Warranty of Plans and Specifications, Negligent Preparation of Plans and Specifications, Negligent Supervision, and Negligent Inspection.

Claims against a Subcontractor or Material Supplier include: Negligence, Breach of Implied Warranty of Merchantability and Negligent Selection of Materials.

Claims against a Real Estate Agent include: Breach of Contract, Breach of Fiduciary Duty, Breach of Duty of Loyalty and Obedience, Breach of Duty of Skill, Care and Diligence, Failure to Disclose Material Facts, Improper Accounting of Funds, Negligence, Fraud, and Unfair and Deceptive Trade Practices.

2. Builders and Contractors:

Common claims that Builders and Contractors can have include claims against the Homeowner, a Design Professional, a Subcontractor, or a Material Supplier, among others.

Claims against the Homeowner include: Breach of Contract, Failure to Pay, and Interference with Performance of Contract.

Claims against a Design Professional include: Breach of Contract, Breach of Warranty of Plans and Specifications, Negligent Preparation of Plans and Specifications, Negligent Supervision, and Negligent Inspection.

Claims against a Subcontractor or Material Supplier include: Breach of Contract, Breach of Implied Warranty of Merchantability, Negligence, and Negligent Selection of Materials.

3. Subcontractors and Material Suppliers:

Common claims that Subcontractors and Material Suppliers can have include claims against the Homeowner, claims against the Builder/Contractor, and claims against each other.

Claims against the Homeowner include: Failure to Pay, Claim of Lien On Funds, Claim of Lien On Real Property, and Signing a False Lien Waiver.

Claims against the Builder/Contractor include: Breach of Contract, Failure to Pay, Claim of Lien On Funds, Claim of Lien On Real Property, and Signing a False Lien Waiver.

Claims against each other include: Breach of Contract, Failure to Pay, Claim of Lien On Funds, Negligent Selection of Materials, and Product Liability.

If you anticipate or are experiencing a Construction Law Dispute with respect to the construction or sale of a Residential Home, call an experienced construction attorney for advice and help. Call Wesley Jones now at 910-256-5800 for a free telephone consultation.

Wesley Jones is a Construction and Litigation Lawyer serving all of Southeastern North Carolina including New Hanover County (e.g. Wilmington, Kure Beach, Wrightsville Beach, Carolina Beach and the areas of Ogden, Masonboro, Myrtle Grove, Landfall, and Mayfair), all of Pender County (e.g. Burgaw, Surf City, Hampstead and Topsail Beach) and all of Brunswick County (e.g. Bald Head Island, Bolivia, Calabash, Leland, Shallotte, Southport, Saint James, Ocean Isle, and Oak Island).

December 7, 2013 By Wesley Jones

NORTH CAROLINA NONCOMPETITION AGREEMENTS

1. Buying a New Business:

If you are buying a new business, either by an Asset Purchase or Stock Purchase, you should consider whether you should require the Seller and its owners and affiliates to sign a Non-Compete Agreement.

When you buy an existing business, part of what you are buying is the established know-how and goodwill that the Seller has accumulated through the years that makes the business successful.

You will be making an enormous investment into this business so you probably want to make sure the Seller, to whom you just paid a lot of money, will not set up shop right across the street in competition with you.

2. Starting a new Business or Operating an Existing Business:

Even if you are starting a new business or operating an existing business, you do not want Key Employees to steal your proprietary secrets and know-how that you have perfected over the years.

Way to often, employees will work for an employer for a number of years, acquire their customers lists, pricing guides, and other business operation methods, only to decide that they can do it better.

Why work for the owner when you can be the owner? Most businesses can benefit from have Key Employees sign a Non-Compete Agreement.

The terms of a Noncompetition Agreement will vary based upon your particular situation. However, all Noncompetition Agreements in North Carolina must be supported by adequate and New Consideration and they must be reasonable in scope as to Geographical and Time restrictions.

If you are Buying a New Business and want to protect yourself from the Seller competing directly against you and the new business OR if you have a New or Current Business where key employees have access to all of your proprietary business information, call an experienced lawyer to help you through the process. Call Wesley Jones now at 910-256-5800 for a free telephone consultation.

Wesley Jones is a Business Law Attorney serving all of Southeastern North Carolina including New Hanover County (e.g. Wilmington, Kure Beach, Wrightsville Beach, Carolina Beach and the areas of Ogden, Masonboro, Myrtle Grove, Landfall, and Mayfair), all of Pender County (e.g. Burgaw, Surf City, Hampstead and Topsail Beach) and all of Brunswick County (e.g. Bald Head Island, Bolivia, Calabash, Leland, Shallotte, Southport, Saint James, Ocean Isle, and Oak Island).

December 1, 2013 By Wesley Jones

ASSET PURCHASE AGREEMENTS IN NORTH CAROLINA

A well drafted Asset Purchase Agreement should address the following topics:

Both parties must clearly define which Business Assets are being sold/purchased (the Purchased Assets) and which Business Assets are not being sold/purchased (the Excluded Assets).

Asset Purchase Agreement

Both parties must clearly define what liabilities, if any, are being assumed by the Buyer (the Assumed Liabilities) and which liabilities will remain with the Seller (the Excluded Liabilities).

The Purchase Price, how it will be paid, whether a deposit will be required, if required, what kind a Security Agreement will be required by the Seller, and the date, time and place of Closing.

How the Purchase Price will be allocated among the Purchased Assets.

Representations and Warranties from the Seller that: The Seller has the requisite power and authority to execute the Asset Purchase Agreement and to carry out the acts contemplated thereby; and The Seller has good and marketable title to all of the Purchased Asset, free and clear of any liens.

Representations and Warranties from the Buyer that: The Buyer has the requisite power and authority to execute the Asset Purchase Agreement and to carry out the acts contemplated thereby.

The Agreement should list all the Conditions Precedent that must occur prior to Closing.

Optional Provisions may include an Indemnification clause, a Risk of Loss clause, a No Broker clause, a Best Efforts clause, a Non-Competition Agreement, and a Governing law and Venue clause.

If you are planning to sell the assets of your business and to purchase the assets of another business, call an experienced lawyer to help you through the process. Call Wesley Jones now at 910-256-5800 for a free telephone consultation.

Wesley Jones is a Business Law Attorney serving all of Southeastern North Carolina including New Hanover County (e.g. Wilmington, Kure Beach, Wrightsville Beach, Landfall, and Mayfair), all of Pender County (e.g. Burgaw and Topsail Beach, etc.) and all of Brunswick County (e.g. Bolivia, Southport, Ocean Isle, and Oak Island).