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Business Law Basics:
What Every Businessperson
Should Know
By Salene Mazur Kraemer, Esquire, MBA, CTP-D
603 Washington Road, Suite 500
Pittsburgh, PA 15228
Phone: 412.427.7075 Fax:1-888-718-6752
www.mazurkraemer.com
salene@mazurkraemer.com
1MAZURKRAEMER LAW GROUP
Overview
• Getting Started
• Corporate Formation &
Formalities
• Hiring Employees or
Contractors
• Regulatory Compliance
• Raising Money
• Intellectual Property
• Corporate Counseling
• Contract Drafting &
Review
• Product Liability,
Warranties, Advertising
• Business Torts
• E-Commerce
• Exit Strategies
MAZURKRAEMER LAW GROUP 2
MAZURKRAEMER LAW 3
2015- Fall. Me with
little people at South
Park
A. Getting Started
• 1. Leave Current Employment
• 2. Startup, Acquisition
(stock or assets), Franchise
• 3. Business Plan
• 4. Location Selection
• 5. Hiring Professionals
• 6. Choose Business Entity
• 7. Forming the Board
4MAZURKRAEMER LAW GROUP
MAZURKRAEMER LAW 5
2015 Year End MazurKraemer Firm Collage
Leave Current Employment
• Covenant Not to Compete
• Trade Secrets
• Invention Assignment Agreement
• Misappropriation of Company Resources
• Non-Solicitation Agreement
MAZURKRAEMER LAW GROUP 6
MAZURKRAEMER LAW 7
Tilt Room Band Photo Shoot Chihuly Museum
Mary
Beth
Green
Photo
Shoot
Deer
Valley X
Country
Skiing
Location Selection
MAZURKRAEMER LAW GROUP 8
•Office share
•Commercial
lease
•Buy property
•Virtual office
•Location
visibility
Choose Business Entity
• Sole Proprietorship ***
• C Corporation
• S Corporation ***
• Partnership
• Limited Partnership (who is the GP and who is
the LP) ***
• Limited Liability Limited Partnership
• Limited Liability Company ***
MAZURKRAEMER LAW GROUP 9
MAZURKRAEMER LAW 10
TINY
Considerations
• Number of Owners
• Type of Owners
• Personal Liability Protection
• Tax status
• Governing Agreement
• Flexibility re: management/governance
• Flexibility re: profit/loss allocations, as well as
cash distribution
• Securities concerns- additional investors?
• Liquidation of entity
MAZURKRAEMER LAW GROUP 11
Halloween 2015 –Keira and Jackson
MAZURKRAEMER LAW 12
Hiring Professionals
• Accountant
• Graphic Design Artist
• Website developer/hosting
• IT consultant
• PR firm/social media
consultant
• Insurance
• Banker
• Lawyer (Corporate, IP, FDA, etc. )
• Printer
• Benefits Company
MAZURKRAEMER LAW GROUP 13
MAZURKRAEMER LAW 14
Play
Guitar since
age 15
B. Corporate Formation Documents
• Articles or Certification of Incorporation or Formation or Partnership
• Written Consent of Sole Incorporator
• Unanimous Consent of Board of Directors
• Corporate Minute Book
• Stock Certificates
• Docketing Statement
• Application for EIN
• Name Reservation in State Incorporated and Where Intend to Do Business
• Fictitious Name Filing
• Certificate of Authority to Do Business in Other States
• Publication of Authority to Do Business in State
• Voting Agreements,
• Necessary Tax Forms
• Shareholders Agreement, Partnership Agreement, Operating Agreement
• Buy-Sell Agreement
15MAZURKRAEMER LAW GROUP
MAZURKRAEMER LAW 16
Mom and Sister and MIL
C. HR Issues-
Hiring Employees & Contractors
• Employment Agreements
• Consulting Agreements
• Covenant Not to Compete
• Policy/Handbook
• Discrimination Prevention
• Pre-employment application/screening
• Wrongful discharge v. employee at will
• Equity compensation
17MAZURKRAEMER LAW GROUP
MAZURKRAEMER LAW 18
Lawyer Stuff
Employee v. Independent Contractor
• TEST IC: 1) control the outcome of a piece of
work and the means and manner of achieving the
outcome; 2) Offer services to public at large, not
just one business
• IMP: employer does not have to pay social
security or Medicare, unemployment insurance
or workers’ comp for employee, no benefits, no
retirement
• Lower paid, lower skilled often considered
employees
MAZURKRAEMER LAW GROUP 19
MAZURKRAEMER LAW 20
Brother Nathan
Disney 2014
Important Legislation
• Civil Rights Act
• OSHA
• National Labor Relations Act
• ADA
• Age Discrimination
• Family Medical Leave Act
• Fair Labor Standards Act
• EEOC
MAZURKRAEMER LAW GROUP 21
Mom dance
MAZURKRAEMER LAW 22
Reduce Litigation Risk
• Pre-employment recruiting materials
• Careful interview and screening process
• Consistent job evaluations during course of
employment
• Have written employment or independent
contractor agreements
MAZURKRAEMER LAW GROUP 23
MAZURKRAEMER LAW 24
Dad!!
Love of
Sports
D. Regulatory Compliance
• Local, state (foreign or domestic), federal level
• Zoning approval, permits and licenses
• Insurance
• Government
25MAZURKRAEMER LAW GROUP
MAZURKRAEMER LAW 26
Life Long Friends
E. Raising Money
• Business plan
• Private placement memo
• Stock Purchase Agreement/Subscription
Agreement
• Securities Compliance (both Federal and States)
• Loan agreements (term v. revolver v. secured)
• UCC filings, Security Agreements
• Guaranty agreements
27MAZURKRAEMER LAW GROUP
*Private investors (self, friends, family, angel
investors)
*Venture capital financing
*Credit (term loan or revolver)
*Strategic alliances, joint ventures
*Loan funds
*Issue common stock, preferred stock,
bonds
Sources:
NYC impromptu
MAZURKRAEMER LAW 28
F. Intellectual Property
• Basic Forms
– Patents
– Trademarks
– Copyright
– Trade Secret
29MAZURKRAEMER LAW GROUP
MAZURKRAEMER LAW 30
St. Paul’s Parish- WEIRTON WV
IP Issues Continued
• Trade Secret Proprietary Information Program
– Confidentiality or non-disclosure agreements
– Non-competition and non-solicitation agreements
– Invention Assignment Agreement
• Trademark, Service Marks-brands, logos, packaging or
designs that are used to distinguish its goods and services
• Registered Internet domain name
• Copyright for text, graphic, software, audio or film
materials, such as manuals or promotional or training
materials
• Licensing Agreements
• International?
MAZURKRAEMER LAW GROUP 31
MAZURKRAEMER LAW 32
Weirton Collage
for United Way
G. Corporate Counseling
• Board Formation
– Legally required
– Selection, number, frequency of meeting, diversified,
outside v. interested, compensation
– Synergy, credibility
– Fiduciary Duty of Care to corporation and shareholders
(BIOTC)
• Duty of Loyalty (no self-dealing, no usurp corp opportunity)
• Duty of Care (“reasonable man” test)
• Business Judgment Rule (disinterested, informed, shifts burden)
– D&O Insurance
• Indemnity Agreement (officers)
33MAZURKRAEMER LAW GROUP
MAZURKRAEMER LAW 34Weirton-First Photo Project
H. Contract Drafting & Review
• Commercial Property Leases
• Equipment Leases
• Agreements of Sale for Property
• Loan Agreements
• Sale of Goods (Supply Agreement, Distribution Agreement,
Purchase Order)
• Engagement letters
• Customer Contracts
• Consignments
• Management Agreement
• Requirements and Outputs Contracts
35MAZURKRAEMER LAW GROUP
MAZURKRAEMER LAW 36
Me-Age 11
Contract Law Basics
• Basic elements (offer, acceptance, consideration)
• UCC v. Common Law
• Contract theories (breach of contract, unjust
enrichment, promissory estoppel, restitution)
• Oral, written, implied
• Statute of Frauds (goods over $500, real property,
contract longer than 1 years, pre-nup,
assumption of debt)
• Remedies
MAZURKRAEMER LAW GROUP 37
MAZURKRAEMER LAW 38
Entrance Turnstile-
Weirton Steel
Remedies
• $ or Equitable (specific performance,
injunction, recission)
• Expectation
• Reliance
• Restitution
• Consequential (foreseeable)
• Liquidation
• Punitive
MAZURKRAEMER LAW GROUP 39
Working parenthood
MAZURKRAEMER LAW 40
Material Contract Terms
• Who are the parties?
• Duties and Obligations
• Payment Terms
• Duration
• Termination
• Warranties and Representations
• Indemnification
• Boilerplate provisions
MAZURKRAEMER LAW GROUP 41
MAZURKRAEMER LAW 42
Keira cut her hair off 2 days after this
picture
Boilerplate Provisions
• Notice provisions
• Governing Law
• Waiver of Jury Trial
• Amendment
• Assignment
• Attorneys’ Fees
• Litigation v. Arbitration or Mediation
MAZURKRAEMER LAW GROUP 43
MAZURKRAEMER LAW 44KENNYWOOD
I. Product Liability, Warranties,
Advertising
• Warranties (express (not puffing), implied
warranty of merchantability, implied warranty of
fitness for a particular purposes)
– Limitation of Liability, AS IS clauses
• Products liability for defective products sold in
dangerous or defective condition (strict liability,
chain of distribution, design defect, warnings)
• False or Misleading Advertising
• Successor Liability
• Defenses (comparative fault, assumption of risk)
45MAZURKRAEMER LAW GROUP
MAZURKRAEMER LAW 46
Lebo Halloween Parade in front of PGH Office for MAZURKRAEMER
J. Business Torts
• Negligence (duty of care, breach, cause,
damages)
• Intentional Torts (false imprisonment, IIEM,
defamation, appropriation, trespass, nuisance,
fraud/misrep, conversion, interference with K’l
relations, unfair competition)
• Vicarious Liability/respondeat superior
• Strict Liability (ultrahazardous and products)
• Toxic Torts (exposure to harmful substances)
• Defenses, Damages, J/S Liability, Contribution
47MAZURKRAEMER LAW GROUP
MAZURKRAEMER LAW 48
Plants at PGH Zoo
K. E-Commerce
• Basic terms of use (favorable linking, information
usage, disclaimers, liability limitation, dispute
resolution and forum selection provisions)
• Clickwrap agreements
• Passive or "brochureware" website vs. selling
goods or services online
• Cookies Permission
• Data security
• Illustrations or photos
• Restricted territories
49MAZURKRAEMER LAW GROUP
MAZURKRAEMER LAW 50
Sunset Hills, MT LEBO
Exit Strategies
• Bankruptcy
• Sale- whole or in part
• Liquidate and Dissolve
• Reorganize
MAZURKRAEMER LAW GROUP 51
Phone: 412.427.7075 Fax: 1-888-718-6752
www.mazurkraemer.com
salene@mazurkraemer.com
52MAZURKRAEMER LAW

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Business Law Basics: What Every Business Person Should Know

  • 1. Business Law Basics: What Every Businessperson Should Know By Salene Mazur Kraemer, Esquire, MBA, CTP-D 603 Washington Road, Suite 500 Pittsburgh, PA 15228 Phone: 412.427.7075 Fax:1-888-718-6752 www.mazurkraemer.com salene@mazurkraemer.com 1MAZURKRAEMER LAW GROUP
  • 2. Overview • Getting Started • Corporate Formation & Formalities • Hiring Employees or Contractors • Regulatory Compliance • Raising Money • Intellectual Property • Corporate Counseling • Contract Drafting & Review • Product Liability, Warranties, Advertising • Business Torts • E-Commerce • Exit Strategies MAZURKRAEMER LAW GROUP 2
  • 3. MAZURKRAEMER LAW 3 2015- Fall. Me with little people at South Park
  • 4. A. Getting Started • 1. Leave Current Employment • 2. Startup, Acquisition (stock or assets), Franchise • 3. Business Plan • 4. Location Selection • 5. Hiring Professionals • 6. Choose Business Entity • 7. Forming the Board 4MAZURKRAEMER LAW GROUP
  • 5. MAZURKRAEMER LAW 5 2015 Year End MazurKraemer Firm Collage
  • 6. Leave Current Employment • Covenant Not to Compete • Trade Secrets • Invention Assignment Agreement • Misappropriation of Company Resources • Non-Solicitation Agreement MAZURKRAEMER LAW GROUP 6
  • 7. MAZURKRAEMER LAW 7 Tilt Room Band Photo Shoot Chihuly Museum Mary Beth Green Photo Shoot Deer Valley X Country Skiing
  • 8. Location Selection MAZURKRAEMER LAW GROUP 8 •Office share •Commercial lease •Buy property •Virtual office •Location visibility
  • 9. Choose Business Entity • Sole Proprietorship *** • C Corporation • S Corporation *** • Partnership • Limited Partnership (who is the GP and who is the LP) *** • Limited Liability Limited Partnership • Limited Liability Company *** MAZURKRAEMER LAW GROUP 9
  • 11. Considerations • Number of Owners • Type of Owners • Personal Liability Protection • Tax status • Governing Agreement • Flexibility re: management/governance • Flexibility re: profit/loss allocations, as well as cash distribution • Securities concerns- additional investors? • Liquidation of entity MAZURKRAEMER LAW GROUP 11
  • 12. Halloween 2015 –Keira and Jackson MAZURKRAEMER LAW 12
  • 13. Hiring Professionals • Accountant • Graphic Design Artist • Website developer/hosting • IT consultant • PR firm/social media consultant • Insurance • Banker • Lawyer (Corporate, IP, FDA, etc. ) • Printer • Benefits Company MAZURKRAEMER LAW GROUP 13
  • 15. B. Corporate Formation Documents • Articles or Certification of Incorporation or Formation or Partnership • Written Consent of Sole Incorporator • Unanimous Consent of Board of Directors • Corporate Minute Book • Stock Certificates • Docketing Statement • Application for EIN • Name Reservation in State Incorporated and Where Intend to Do Business • Fictitious Name Filing • Certificate of Authority to Do Business in Other States • Publication of Authority to Do Business in State • Voting Agreements, • Necessary Tax Forms • Shareholders Agreement, Partnership Agreement, Operating Agreement • Buy-Sell Agreement 15MAZURKRAEMER LAW GROUP
  • 16. MAZURKRAEMER LAW 16 Mom and Sister and MIL
  • 17. C. HR Issues- Hiring Employees & Contractors • Employment Agreements • Consulting Agreements • Covenant Not to Compete • Policy/Handbook • Discrimination Prevention • Pre-employment application/screening • Wrongful discharge v. employee at will • Equity compensation 17MAZURKRAEMER LAW GROUP
  • 19. Employee v. Independent Contractor • TEST IC: 1) control the outcome of a piece of work and the means and manner of achieving the outcome; 2) Offer services to public at large, not just one business • IMP: employer does not have to pay social security or Medicare, unemployment insurance or workers’ comp for employee, no benefits, no retirement • Lower paid, lower skilled often considered employees MAZURKRAEMER LAW GROUP 19
  • 20. MAZURKRAEMER LAW 20 Brother Nathan Disney 2014
  • 21. Important Legislation • Civil Rights Act • OSHA • National Labor Relations Act • ADA • Age Discrimination • Family Medical Leave Act • Fair Labor Standards Act • EEOC MAZURKRAEMER LAW GROUP 21
  • 23. Reduce Litigation Risk • Pre-employment recruiting materials • Careful interview and screening process • Consistent job evaluations during course of employment • Have written employment or independent contractor agreements MAZURKRAEMER LAW GROUP 23
  • 25. D. Regulatory Compliance • Local, state (foreign or domestic), federal level • Zoning approval, permits and licenses • Insurance • Government 25MAZURKRAEMER LAW GROUP
  • 26. MAZURKRAEMER LAW 26 Life Long Friends
  • 27. E. Raising Money • Business plan • Private placement memo • Stock Purchase Agreement/Subscription Agreement • Securities Compliance (both Federal and States) • Loan agreements (term v. revolver v. secured) • UCC filings, Security Agreements • Guaranty agreements 27MAZURKRAEMER LAW GROUP *Private investors (self, friends, family, angel investors) *Venture capital financing *Credit (term loan or revolver) *Strategic alliances, joint ventures *Loan funds *Issue common stock, preferred stock, bonds Sources:
  • 29. F. Intellectual Property • Basic Forms – Patents – Trademarks – Copyright – Trade Secret 29MAZURKRAEMER LAW GROUP
  • 30. MAZURKRAEMER LAW 30 St. Paul’s Parish- WEIRTON WV
  • 31. IP Issues Continued • Trade Secret Proprietary Information Program – Confidentiality or non-disclosure agreements – Non-competition and non-solicitation agreements – Invention Assignment Agreement • Trademark, Service Marks-brands, logos, packaging or designs that are used to distinguish its goods and services • Registered Internet domain name • Copyright for text, graphic, software, audio or film materials, such as manuals or promotional or training materials • Licensing Agreements • International? MAZURKRAEMER LAW GROUP 31
  • 32. MAZURKRAEMER LAW 32 Weirton Collage for United Way
  • 33. G. Corporate Counseling • Board Formation – Legally required – Selection, number, frequency of meeting, diversified, outside v. interested, compensation – Synergy, credibility – Fiduciary Duty of Care to corporation and shareholders (BIOTC) • Duty of Loyalty (no self-dealing, no usurp corp opportunity) • Duty of Care (“reasonable man” test) • Business Judgment Rule (disinterested, informed, shifts burden) – D&O Insurance • Indemnity Agreement (officers) 33MAZURKRAEMER LAW GROUP
  • 35. H. Contract Drafting & Review • Commercial Property Leases • Equipment Leases • Agreements of Sale for Property • Loan Agreements • Sale of Goods (Supply Agreement, Distribution Agreement, Purchase Order) • Engagement letters • Customer Contracts • Consignments • Management Agreement • Requirements and Outputs Contracts 35MAZURKRAEMER LAW GROUP
  • 37. Contract Law Basics • Basic elements (offer, acceptance, consideration) • UCC v. Common Law • Contract theories (breach of contract, unjust enrichment, promissory estoppel, restitution) • Oral, written, implied • Statute of Frauds (goods over $500, real property, contract longer than 1 years, pre-nup, assumption of debt) • Remedies MAZURKRAEMER LAW GROUP 37
  • 38. MAZURKRAEMER LAW 38 Entrance Turnstile- Weirton Steel
  • 39. Remedies • $ or Equitable (specific performance, injunction, recission) • Expectation • Reliance • Restitution • Consequential (foreseeable) • Liquidation • Punitive MAZURKRAEMER LAW GROUP 39
  • 41. Material Contract Terms • Who are the parties? • Duties and Obligations • Payment Terms • Duration • Termination • Warranties and Representations • Indemnification • Boilerplate provisions MAZURKRAEMER LAW GROUP 41
  • 42. MAZURKRAEMER LAW 42 Keira cut her hair off 2 days after this picture
  • 43. Boilerplate Provisions • Notice provisions • Governing Law • Waiver of Jury Trial • Amendment • Assignment • Attorneys’ Fees • Litigation v. Arbitration or Mediation MAZURKRAEMER LAW GROUP 43
  • 45. I. Product Liability, Warranties, Advertising • Warranties (express (not puffing), implied warranty of merchantability, implied warranty of fitness for a particular purposes) – Limitation of Liability, AS IS clauses • Products liability for defective products sold in dangerous or defective condition (strict liability, chain of distribution, design defect, warnings) • False or Misleading Advertising • Successor Liability • Defenses (comparative fault, assumption of risk) 45MAZURKRAEMER LAW GROUP
  • 46. MAZURKRAEMER LAW 46 Lebo Halloween Parade in front of PGH Office for MAZURKRAEMER
  • 47. J. Business Torts • Negligence (duty of care, breach, cause, damages) • Intentional Torts (false imprisonment, IIEM, defamation, appropriation, trespass, nuisance, fraud/misrep, conversion, interference with K’l relations, unfair competition) • Vicarious Liability/respondeat superior • Strict Liability (ultrahazardous and products) • Toxic Torts (exposure to harmful substances) • Defenses, Damages, J/S Liability, Contribution 47MAZURKRAEMER LAW GROUP
  • 49. K. E-Commerce • Basic terms of use (favorable linking, information usage, disclaimers, liability limitation, dispute resolution and forum selection provisions) • Clickwrap agreements • Passive or "brochureware" website vs. selling goods or services online • Cookies Permission • Data security • Illustrations or photos • Restricted territories 49MAZURKRAEMER LAW GROUP
  • 50. MAZURKRAEMER LAW 50 Sunset Hills, MT LEBO
  • 51. Exit Strategies • Bankruptcy • Sale- whole or in part • Liquidate and Dissolve • Reorganize MAZURKRAEMER LAW GROUP 51
  • 52. Phone: 412.427.7075 Fax: 1-888-718-6752 www.mazurkraemer.com salene@mazurkraemer.com 52MAZURKRAEMER LAW