Business Law & Corporate Law Pt. 2If you are seeking to start a business, are part of an emerging company, or running a mature business, you have probably needed a business attorney at some point. The below overview outlines some important considerations through a businesss life cycle and how a business attorney can help you think through those issues.
Continuing Your Business After Formation
While formation of a business involves a complex process including the artful drafting of numerous documents, the long-term success of a company along with its profitability and growth requires meeting ongoing challenges. Emerging and growing businesses tend to face more sophisticated legal challenges, involving diverse issues, such as employment, intellectual property, equity incentive arrangements, dispute resolution, real estate, and financing arrangements.
Some common documentation associated with the continuing operation of a business, include the following:
Continuing Your Business After Formation
Non-Disclosure Agreement (NDA) Employment Contracts Severance Agreements Distribution Agreements Funding Documentation Vendor Agreements Required Postings (e.g. workers compensation or
minimum wage notices) Intellectual Property Assignment Agreement Commercial Lease Promissory Note Security Agreement
Partner Dissolution Agreement Independent Contractor Agreement Demand for Payment Assignment of Agreement Breach of Contract Notice Cease and Desist Letters Equipment Lease Agreement Notice of Dissolution of Partnership Purchase Receipts Termination of Agreement and Release
Frequently Asked Questions Regarding Documents for Operation of a Business
When do I need a non-disclosure agreement (NDA)? What type of attorney do I need to create business documents? Are non-compete agreements enforceable?
When do I need a non-disclosure agreement (NDA)?
A non-disclosure agreement should be used prior to sharing access to your new product, innovative business idea, or other sensitive information with outsiders, such as prospective partners, customers, suppliers, collaborators, or employees. The function of an NDA is to specifically articulate that certain information that is being shared is protected from disclosure. While standard form commercially produced NDAs are available, you should not rely on these documents because meticulous drafting is needed to ensure your companys valuable information is protected. For example, we have seen NDAs that prohibit the disclosure but not the use of protected information.
What type of attorney do I need to create business documents?
While you can retain any attorney to create your business documents, the best choice is an attorney who focuses much or all of his or her law practice on providing legal counsel to businesses and preparing documents used to consummate business transactions. The attorney should have some familiarity with a broad range of businesses and industries, and specific experience with companies in your industry can be an advantage. When selecting an attorney you also will want to consider experience level, reputation in the legal community, ethical standards (e.g. state bar record), attorney fee arrangements, and professional awards, achievements, and/or accolades.
Are non-compete agreements enforceable?
The enforceability of non-compete agreements vary state by state. For instance, while New York courts will enforce non-compete agreements, these types of contracts must be skillfully drafted. Historically, New York distinguished non-compete agreements when the employee was terminated without cause. In these situations, a non-compete agreement was considered non-enforceable. However, recent case law has potentially opened the door to enforcement of non-compete agreements even in this context, depending on the specific circumstances. However, there is a significant risk associated with relying on a non-compete agreement that is not drafted by a skilled business law firm. Courts might refuse to enforce a non-compete agreement if the agreement contains overly restrictive language with respect to some provisions, which could make the entire agreement unenforceable.