A significant portion of our practice involves corporate and commercial law for small and medium sized businesses. We represent several hundred such businesses, many of which are incorporated, while others take the form of partnerships or sole proprietorships.
Our lawyers can provide legal advice and assistance in a variety of business-related areas, including the formation and structure of a new business; the acquisition or sale of an existing business; the amalgamation of multiple existing businesses; corporate rollover transactions and reorganizations; compliance with government and regulatory controls; labour and employment issues; and commercial leasing and financing transactions.
Buying and Selling
Letters of Intent
Many business purchase transactions start with a Letter of Intent. A Letter of Intent can be a binding, non-binding, or partially binding, letter agreement between the parties. It will set out the basic provisions of the transaction, including the purchase price and how it will be paid; a description of what is intended to be purchased (e.g. assets or shares); and other conditions or criteria that the parties determine to be essential to the transaction.
A Letter of Intent is often used to set out the basic elements of a transaction, and to authorize the purchaser to conduct its due diligence regarding the business before committing fully to the transaction. As such, it can be a useful tool in protecting the rights of both parties, while facilitating the negotiation of the terms of a formal Purchase Agreement.
Asset and Share Purchase Transactions
If your business is incorporated, its sale can be completed as either an asset-based transaction, or as a share sale. The choice is an important one for both parties, for both tax and other reasons. Sellers usually prefer a share sale structure for tax reasons; whereas purchasers often prefer an asset-based structure, whether for tax, liability or other reasons. We can assist in negotiating an agreement that will address the concerns of both parties on a fair and reasonable basis; and, when the transaction closes, we can prepare all the necessary documentation to ease the transfer of the business to its new owners.
Sole Proprietorships and Partnerships
A Sole Proprietor is an individual operating an unincorporated business. The Sole Proprietor owns his business assets, and owes his business debts, personally. As a result, the Sole Proprietor’s personal assets (e.g. family home, vehicles, bank accounts, etc.) may be exposed to business creditors.
As a result, although setting up a Sole Proprietorship is the simplest, and least expensive way to start your business, there are some obvious disadvantages with running a business as a Sole Proprietor. For instance, you will have neither the limited liability, nor certain tax advantages, that are available through incorporation. Nonetheless, you may opt to defer these corporate advantages in order to set up your business quickly and inexpensively as a Sole Proprietorship. Then, once you have established and grown your business, you can incorporate, and receive the full benefit of limited liability and corporate tax advantages.
A Partnership is very similar to a Sole Proprietorship, except that it involves two or more people carrying on business together. In a Partnership, business decisions are made by the Partners collectively. As in a Sole Proprietorship, the Partners are personally liable for the business obligations, and the Partnership does not enjoy the tax advantages that are available to Corporations.
In General Partnerships, the Partners’ liability is termed “joint and several”, meaning that each Partner is fully responsible for all of the business liabilities. In Limited Partnerships, some Partners are General Partners with joint and several liability, while others are Limited Partners with liability limited to the amount of their investment in the Partnership. In some areas of business, legislation authorizes the establishment of Limited Liability Partnerships, which can protect the personal assets of an innocent Partner from business liabilities arising from the actions of a negligent Partner.
Let us help you decide the best avenue to establish your business.
We can provide the necessary advice and assistance to incorporate your business, and to create the requisite supporting documents to properly organize your corporation. Whether you are just starting out, or are converting your existing business from a sole proprietorship or partnership, we can guide you through what needs to be done.
There are distinct advantages to incorporating your business, including limited liability and certain tax advantages; however, these advantages do come at a cost. Call us to discuss these advantages and costs, as they apply to your circumstances.
Let us guide you to the best avenue to grow your business.
We incorporate businesses both provincially and federally, and we can advise you on the preferred jurisdiction for your incorporation, based on your current circumstances and future business plans. We have the facilities to file Articles of Incorporation electronically, thereby speeding the creation of your corporate vehicle.
We also incorporate non-share corporations for those clients who want to create non-profit organizations, such as social and service clubs, trade associations and non-governmental representative organizations. We also prepare and file the requisite federal documentation to acquire charitable status for your non-profit organization. Call one of our corporate lawyers to discuss your needs in this regard.
Partnership and Shareholder Agreements
Although Provincial legislation regulates Partnerships, that legislation sets out only the basic requirements on a “one-size-fits-all” basis. As a result, most Partnerships are governed by a Partnership Agreement. By tailoring a Partnership Agreement to the specific needs of the Partners and the business, we can create a structure that suits your particular business needs. Whether you need an agreement that provides for different ownership interests, distribution rights, or liabilities among the Partners; requires unique provisions for capital contributions by the Partners; stipulates the Partners’ specific buy-out and/or sale rights; defines the parameters of a non-competition clause that becomes effective upon the departure of a Partner; or otherwise takes your business needs away from the standard provisions of the Partnerships Act, we can help you craft an agreement that will address your specific requirements.
If you and your Partners have incorporated your business, you will need to define your respective rights and responsibilities, vis a vis the business through a Shareholder Agreement. A Shareholder Agreement will both address corporate governance matters and assist Shareholders to resolve disputes that may arise. A typical Shareholder Agreement will include provisions regarding Shareholder meetings; Shareholder capital contributions (and repayment); share transfers and sales; mandatory buy-outs; arbitration or mediation of Shareholder disputes; and the retirement, disability or death of Shareholders. We can prepare a Shareholder Agreement that will help to make the governance of your business, and the resolution of any disputes, significantly easier.
Let us help you create an agreement that will suit the needs of your business.
For more information on any of the following areas, click on this link https://www.bdc.ca/en/articles-tools/pages/default.aspx, and select any of the following articles:
- Business Structures
- The advantages of incorporating your business
- Pull together an effective business plan
- Buying a business
- Acquiring a franchised business
- Selling a business
Contact any of the following lawyers for legal advice and assistance regarding your Business needs.