Avoiding dissolution pitfalls and protecting against post-dissolution liability for company debts and claims

Steven H. Bergman
April 2019

Based on information contained in the Department of Commerce’s most recent annual report, there are currently more than 300,000 businesses operating in Utah, with approximately 60,000 new business filings each year. For the past decade, the most common form of new entity in Utah has been the limited liability company. The next most common is a DBA registration of a fictitious business name, followed by the corporation. Each of these new entities brings the promise of a new business venture, new ideas, new jobs, and potential success.

Although the overall number of businesses in Utah has been growing, the Department’s annual report suggests that on an annual basis, more 40,000 businesses either fail to file an annual report or dissolve. For the principals of these 40,000-plus businesses, the failure to file an annual report or the dissolution of the business triggers potential issues that if not managed properly can have adverse effects on the shareholders, members, directors, officers, and managers of these businesses.

Failing to file an annual report can eventually lead to administrative dissolution of a corporation or limited liability company. Once a corporation or limited liability company is administratively dissolved, any action taken by the directors, officers, or managers that is not related to the winding up of the entity can result in the personal liability of the acting director, officer, or manager.

Similarly, in those instances where the shareholders or members of a corporation or limited liability company elect to dissolve, or a court orders the dissolution of the entity, properly dissolving and winding up the entity can make the difference between the principals still enjoying some or all of the available liability protection after the entity is wound up and those same principals being exposed to personal liability for the debts of and claims against the entity. This is not a theoretical risk, as Utah Courts have found directors, officers, and managers of dissolved entities personally liable for actions taken after dissolution. In these instances, the director, officer, or manager who was found liable could have avoided that liability by complying with the annual reporting requirements under the Utah Revised Business Corporations Act or the Utah Revised Uniform Limited Liability Company Act or by following the dissolution and winding up procedures under those acts.

For example, when the dissolution and winding up process is in accordance with the provisions of the Utah Revised Business Corporations Act, officers are generally protected from post-dissolution liability, and shareholders can only be held liable for company debts and claims up to the amount they received in monetary distributions from the winding up process. Conversely, not following the procedures (for example, by distributing corporate property other than money), can expose the receiving shareholder to liability in excess of the limits set forth in the Utah Revised Business Corporations Act. Similar rules apply to limited liability companies wound up under the Utah Revised Uniform Limited Liability Company Act.

Another important part of the winding up process is the management of claims against the entity. Following the procedures under either act can lead to the early and final resolution of claims against the entity. Not following those procedures can result in claims against the entity. Furthermore, the former shareholders or members may also be exposed to liability for extended periods–up to seven years in the case of corporations and six years in the case of limited liability companies.

The attorneys in Richards Brandt’s Business Transactions and Corporate Governance and Business and Commercial Litigation practice groups know and understand the statutes, rules, and regulations that apply to corporations and limited liability companies. If you have a corporate or company governance issue, or are in the process of or soon will be dissolving and winding up a corporation or limited liability company, contact one of the attorneys in RBMN’s Business Transactions and Corporate Governance or Business and Commercial Litigation practice groups.

UCC Article 9: What You Need to Know, Part 5

Clint M. Hanni
April 2018

UCC Financing Statements

Once the loan documents have been signed, it is imperative from the lender’s point of view that a UCC financing statement be filed in the proper location to “perfect” its interest in the collateral. This is a routine task that is easy to overlook in the rush to close a loan. Multi-million dollar loans have been completely uncollectible because someone forgot to file the financing statement. The takeaway is simple: don’t forget to file!

Beyond simply filing the UCC financing statement, there are three fundamental issues that the lender must get right.

First, file in the right place. UCC Article 9 has a simple rule for finding the right place to file the UCC financing statement—file in the state where the debtor is located. For debtors that are business entities, such as corporations or limited liability companies, regardless of where they may have their corporate headquarters, they are deemed located in the state where they filed their organizing documents, such as articles of incorporation or certificate of organization.

Second, get the name of the debtor right. The general rule is that a UCC financing statement is effective only if a searcher could find it by searching the state’s database with the debtor’s correct name. What this means in practice is that you must list the exact legal name of the debtor on the UCC financing statement. This includes commas, periods, spaces, hyphens and all other incidental characters. For corporate entities, the best way to get the name right is to request that the debtor provide you with a good standing certificate from its state of organization, which will list the debtor’s exact legal name. DBA’s are not good enough. There are endless horror stories of misspelled debtor names that spelled disaster for lenders.

Third, get the collateral description right. All UCC financing statements must include an indication of the collateral. If the collateral is all the debtor’s assets, then you can simply list “all assets” in the collateral box (but remember that this approach does not work in the security agreement itself). If the collateral is a subset of the debtor’s assets, consult the signed security agreement and use its collateral description for the financing statement.

When it comes to UCC Article 9, small errors can be catastrophic. It will be well worth your time and money to consult an attorney with UCC expertise.

Clint M. Hanni is Of Counsel to Richards Brandt Miller Nelson. He is a member of the Business Transactions & Corporate Governance, Banking and Finance Law, Business Bankruptcy and Creditor Rights, and Real Estate Transactions & Litigation practice groups.

UCC Article 9: What You Need to Know, Part 4

Clint M. Hanni
April 2018

Security Agreements – For Debtors

Let’s say that you have approached a bank about getting a loan for working capital purposes. You have inventory and accounts receivable to offer as collateral to secure the loan. After agreeing to basic terms, the bank sends you a loan agreement, a promissory note and a security agreement. The bank has assured you that these are all “standard documents” and encourages you to quickly sign and return them so the loan can be funded and you can get your money. Before you sign the security agreement, however, it’s important to understand that there’s really no such thing as a “standard document” when it comes to security agreements. There are only short-form minimalist documents that cover the basic elements necessary for the creation and attachment of a security interest and long-form documents that describe the lender’s remedies in exhausting detail.

The debtor should take care to review the obligations that are secured by the collateral. Generally, the obligations to be secured should be limited to obligations arising under the loan agreement itself. Lenders often will extend the obligations to include any and all obligations owing from the debtor to the lender at any time in the past or future. As a debtor, make sure you are comfortable with this approach or push back to place limits on the secured obligations.

Every security agreement will have a collateral description, and the debtor should review it carefully to confirm the collateral is as agreed. This is less important where the debtor has agreed that all its assets will constitute collateral. It is more important where the debtor has multiple lenders each with different collateral. Lenders often include over-inclusive collateral descriptions and depend on the debtor to trim them back. It is worth being careful on this point. An over-inclusive collateral description can throw the debtor into default under prior loan agreements and result in the waste of time and money to fix.

A security agreement gives the lender the right to seize the debtor’s collateral upon the occurrence of certain listed “events of default.” A debtor should review these events of default carefully to confirm they will not be triggered unexpectedly. For example, it is customary for the debtor’s failure to make a payment to the lender to be deemed an event of default, but only after all cure periods have been exhausted.

A smart debtor will insist that any loan documents it receives be reviewed quickly and efficiently by experienced counsel, even if the lender claims they are “standard documents.”

Clint M. Hanni is Of Counsel to Richards Brandt Miller Nelson. He is a member of the Business Transactions & Corporate Governance, Banking and Finance Law, Business Bankruptcy and Creditor Rights, and Real Estate Transactions & Litigation practice groups.

UCC Article 9: What You Need to Know, Part 3

Clint M. Hanni
March 2018

Security Agreements – For Lenders

Security agreements lie at the heart of loan transactions. If you are a lender, the security agreement is the document that insures you will be repaid. Security agreements are most often stand-alone documents, but they don’t have to be. Language creating a security interest can be embedded in any other agreement, such as a loan agreement, a purchase order, a promissory note or a deed of trust. The key to creating a security interest is including language whereby the debtor “grants a security interest” to the lender in named collateral. Beyond that, there are two elements of utmost importance in a security agreement that, surprisingly, are often overlooked.

First, the security agreement must indicate what the collateral is. There doesn’t have to be an exhaustive description of each separate item of personal property of the debtor that constitutes collateral. It is enough to identify the category or type of collateral, such as equipment, inventory, accounts receivable, deposit accounts and the like. UCC Article 9 identifies the generally recognized types of personal property collateral in which a security interest can be taken. You should always consult a qualified lawyer to review any collateral description in a security agreement to confirm it is adequate (for the lender) and not overreaching (for the debtor).

A common pitfall is to identify the collateral by simply referencing “all assets” of the debtor or “all personal property” of the debtor. Many lenders have tried this, thinking that it will get them the most collateral, only to find out that UCC Article 9 specifically disqualifies this approach. Such lenders end up with no security interest, no collateral and a difficult path to repayment if the debtor becomes insolvent. To create an effective security interest, the collateral must be identified by specific type or category.

The second element of utmost importance is that the security agreement must be signed by the debtor. This is a simple matter, but often overlooked. An unsigned purchase order with embedded language about the creation of a security interest is not sufficient. The mere filing of a UCC financing statement (which, as a rule, is not a signed document) is not sufficient. Without the debtor’s signature on a written (or electronic) security agreement, no security interest will be created.

As you can see, the requirements of a security agreement are complicated. Before providing a security agreement to a debtor, it’s wise to have it reviewed by a competent attorney with UCC expertise.

Clint M. Hanni is Of Counsel to Richards Brandt Miller Nelson. He is a member of the Business Transactions & Corporate Governance, Banking and Finance Law, Business Bankruptcy and Creditor Rights, and Real Estate Transactions & Litigation practice groups.

 

UCC Article 9: What You Need to Know, Part 2

March 2018

What is a security interest?
At the heart of UCC Article 9 is the concept of a “security interest.” The UCC itself defines a security interest as “an interest in personal property or fixtures which secures payment or performance of an obligation.” The definition goes on for another eight lines, but the gist of it is that a lender receives security for its loan by getting an interest in the debtor’s collateral. In other words, a security interest is a type of lien that allows a lender to take collateral from a debtor that defaults on an obligation. Under UCC Article 9, a security interest only attaches to personal property collateral. Personal property essentially includes everything but land and buildings (the latter are called real property).

When it comes to security interests, two important concepts come into play. First, in order to be of any effect, a security interest must be created and attach to personal property. Second, in order to be enforceable against a debtor, a security interest must be properly perfected.

In order for a security interest to be created and attach to collateral, there are three basic requirements. The debtor (the one owing the obligation) must sign a security agreement, which will be discussed in more detail in future blog segments. The secured party (the one receiving the obligation) must give value to the debtor, for example, in the form of a loan. Lastly, the debtor must have rights in the collateral, which generally means that the debtor owns or is leasing the collateral.

Even though a security interest has attached to collateral, it is of little value until it has been perfected, or in other words, can be legally enforced, a matter of great importance for lenders. The way to perfect a security interest depends on the type of collateral. For most types of collateral, perfection of a security interest is generally done by filing a UCC financing statement with the central filing authority in the state, which is often the secretary of state. In Utah, the place to file is the Division of Corporations and Commercial Code. For certain types of collateral, the only way to perfect a security interest is for the lender to take control or take possession. In other cases, the lender can perfect its security interest in any one of several ways, but with possibly differing priorities. It is possible, for example, for two lenders to perfect a security interest in the same collateral, but with different resulting priorities. If you are a lender wanting to perfect a first priority security interest in collateral, it is essential to consult a lawyer with expertise in UCC Article 9 so that you perfect the security interest in the proper manner and comply with other legal requirements for a legally enforceable interest.

Clint M. Hanni is Of Counsel to Richards Brandt Miller Nelson. He is a member of the Business Transactions & Corporate Governance, Banking and Finance Law, Business Bankruptcy and Creditor Rights, and Real Estate Transactions & Litigation practice groups.

UCC Article 9: What You Need to Know, Part 1

Clint M. Hanni
March 2018

Introduction

If you’re a business owner, you’ve been using the Uniform Commercial Code (UCC) even if you’ve never heard of it. The UCC is a model body of law adopted by all 50 states and US territories in a generally uniform manner that governs commercial business transactions, although there are slight differences between the states. The UCC is divided up into eleven separate sections or “Articles” that each govern a different set of transactions.

What kind of transactions are governed by the UCC? Here’s a short list: selling goods, leasing equipment, issuing promissory notes, sending purchase orders, writing checks, opening bank accounts, shipping goods, and finance transactions where a loan is secured by collateral. This blog series will deal with finance transactions, which are covered by UCC Article 9.

As a business owner, why should you care about UCC Article 9? The answer is simple: whenever you enter into a financing arrangement, equipment lease or any transaction where an obligation is secured by collateral, UCC Article 9 is there in the background to protect you as long as the documents and agreements comply with its provisions. If you are entering into a transaction where you will provide financing, you’ll need to have a basic understanding of how UCC Article 9 helps protect your interest in the collateral. As you might expect, UCC Article 9 is a complicated statute, and you’ll need the help of a professional to navigate it. If you’re a lender, you’ll want to make sure the documents you are using have been vetted by an attorney so they comply with the UCC in your state. If you’re a borrower, you’ll want to hire a lawyer to confirm the documents aren’t overreaching and include the protections offered by the UCC.

Because UCC Article 9 touches so many different kinds of transactions, a general understanding of how it works and what to look for will benefit you regardless of whether you’re a lender, borrower, buyer or seller.

Clint M. Hanni is Of Counsel to Richards Brandt Miller Nelson. He is a member of the Business Transactions & Corporate Governance, Banking and Finance Law, Business Bankruptcy and Creditor Rights, and Real Estate Transactions & Litigation practice groups.

 

 

Contracting 101 – Choice of Law and Borrowing Statutes

Steven Bergman
November 2017

This is another in a series of posts about negotiating, executing, performing, and enforcing contracts, whether commercial or individual. This installment focuses on choice of law issues and how choice of law can affect your right to pursue a remedy on a contract default or the defenses available to you or your business in the event of a default.

Many contracts today contain provisions establishing where a lawsuit can be filed (or arbitration can be heard if there is a mandatory arbitration provision) and what law applies. For contracts that are silent on choice of law and forum selection, statutes or court rules govern the appropriate forum, and the controlling law is determined based on a complex body of law known as conflicts of law. Which law applies can have a significant effect on the outcome of the case. One area where these provisions or the choice of law analysis can be critical concerns the statute of limitations. A statute of limitations is a law that establishes the maximum amount of time a party can wait before it pursues a potential claim. Depending on the type of claim, there are different statutes of limitation. To illustrate this point, a few examples follow.

In Utah, the statute of limitations for written contracts is typically six years. For oral, or unwritten, contracts, the statute of limitations is four years. By contrast, in other states, the statute of limitations varies from three to fifteen years on written contracts and from two years and up on oral contracts. These differences can come into play, even on a contract with a Utah forum and choice of law clause or even where a Court determines under choice of law principles that Utah law applies. This is because Utah, like most states, has a borrowing statute for the application of the statute of limitations where another state’s law may be implicated. Put another way, a Utah court will adopt the other state’s law as Utah law for purposes of the dispute in certain circumstances, such as when performance under the contract occurred in that other state. This can result in a shortening of the statute of limitations, which if you are a defendant is a potential defense, and if you are a plaintiff, a potential bar to recovery.

Utah’s borrowing statute is codified at Utah Code Ann. Section 78B-2-103 and states: “A cause of action which arises in another jurisdiction, and which is not actionable in the other jurisdiction by reason of the lapse of time, may not be pursued in this state, unless the cause of action is held by a citizen of this state who has held the cause of action from the time it accrued.” The first part of this statute means that if the statute of limitations on a claim has expired in another state, that claim generally cannot be pursued in Utah, even if the statute of limitations in Utah has not expired. For example, if a Utah company enters into a contract with a company from California, and the contract provides for payments to be made in California, California’s shorter statute of limitations periods may apply, even if the contract calls for litigation in a Utah court and application of Utah law. For Utah defendants in contract actions, this is a potentially dispositive defense, meaning it will terminate the action. The exception is if the plaintiff is a Utah citizen and has held the claim from the time of inception, then the borrowing statute does not apply.

Read Contracting 101 – Introduction

Contracting 101 – Introduction

Steven Bergman
October 2017

Business and individuals enter into contracts on a regular basis. When entering into a contract, it is important to make sure you know and understand every term in the contract, not just the major provisions, such as the parties, the price, the terms and conditions of performance, and the time and place for performance.

In addition to the major provisions, virtually every written contract contains what most people refer to as “boilerplate,” which are the standardized terms that are included in most agreements. These might include assignment clauses, severability clauses, notice clauses, choice-of-law clauses, and arbitration clauses, among many others. The so-called “boilerplate” is found in commercial leases, license agreements, purchase orders, loans, real estate purchase contracts, employment contracts, and guaranties. And it is true of consumer agreements, such as credit card agreements, residential leases, cell phone contracts, and more. The reality is that most people gloss over the “boilerplate” without even attempting to understand what it is they are agreeing to in the contract. Whether a commercial or consumer contract, not knowing and understanding every term and provision, including “boilerplate” provisions, can have far-reaching consequences. As the Utah Supreme Court recently stated, “it is not the judiciary’s role to draft better agreements for parties than those they draft for themselves.” PC Riverview, LLC v. Cao, 2017 UT 52, ¶ 23, n.2.

Additionally, for those contracts that do not contain sufficient terms of conditions, the law will often impose those terms and conditions based on the course of performance of the parties and/or the terms and conditions that are standard for that industry or transaction. Other terms and conditions, if not stated in the contract or agreement, are based on the Utah Uniform Commercial Code in many instances.

Over the next few months, we will be posting about some of the important provisions of a contract or agreement that many business and individuals overlook – often to their detriment. The time to get a contract right is before it is signed – not after an actual or threatened dispute exists. Examples of these provisions, and the effect they can have on a contract dispute, include the right to receive or requirement to give notice in the event of a default, the manner of that notice, what remedies are available to the parties in the event of a dispute or failure to perform, whether a lawsuit can be filed, where a lawsuit can be filed, and what law applies in a lawsuit or arbitration.

The attorneys at Richards Brandt Miller Nelson have decades of experience preparing, negotiating, litigating, and defending contracts. If you or your business are preparing or negotiating a contract, or you or your business are now facing an actual or threatened contract dispute, please contact us with your contract questions to ensure that you or your company have the most protection and strongest contract rights possible under the circumstances.

Read Contracting 101 – Choice of Law and Borrowing Statutes

Website Hack? What are the legal issues?

Someone is trying to hack your site. In fact, if your site is built on WordPress, which more than 75 million websites are, there are bots constantly trying to gain access to your site – perhaps even as you read this post. This isn’t because WordPress has security flaws. It is because most sites are built on WordPress, so that is the Content Management System on which most hackers focus. Thus, after you have taken reasonable steps to secure your site, you should have a plan in place in case a hack is successful despite your security measures. Here is a short list of steps to take in the event your site is hacked. A word of warning: this will sound pretty simple, but it could get messy.

  1. Fix the problem – The first thing you must do is stop the bleeding by identifying the problem and repairing the breach. The longer the site is up and running after it is hacked, the more data you are going to lose. Have someone who knows what they are doing identify the breach and fix it. Your in-house tech support may be able to take care of this, but it is still a good idea to get an outside IT expert to take a look before you call it good.
  2. Get the facts straight – While you are repairing the security issue and restoring the site, you should be keeping detailed notes on exactly what took place. You may be explaining what happened to customers, security breach victims, attorneys, board members, law enforcement, or even the press. Having a clear, concise knowledge of the facts will make this easier and ensure your story is not altered. At the same time you are determining what to say, you should be deciding on who will be saying it. It is important that the person who is giving the explanation has a firm understanding of what happened so that they are prepared for follow-up questions.
  3. Call your attorneys – Your attorneys will be able to identify your legal obligations at this point. Most importantly, they will be able to advise you who you need to contact. This includes third parties whose information may have been stolen. It may even include banks if credit card information was stolen. Your attorneys can help mitigate the problem by outlining what legal steps need to be taken to avoid or minimize lawsuits. Data-breach legislation differs from state to state, so your attorneys can identify which states’ laws affect your situation and what those laws are.
  4. Develop a hack strategy for the future. You battled through this one – good for you. Now is not the time to sit back and wait for it to happen again—now is the time to put a plan in place that will A) prevent future attacks and B) alert you as soon as a breach is taking place (before any real damage is done).
  5. Communicate. It is critical that the first news of the breach come from you or your company—the last thing you want is for it to appear that you were trying to hide what happened. You may be legally obligated to alert certain people, such as shareholders, board members, clients, customers, etc. so that they can mitigate the damage at their end. Include the steps you have taken to fix the problem and what your plan for security in the future.

There is no such thing as a hack-proof website. As security technology improves, hackers are constantly thinking of new ways to circumvent it. Many computer security experts suggest the most effective thing you can do to keep your site secure, as simple as it seems, is to use complex usernames and passwords. Login pages are typically the easiest way for a hacker to get into your site, and they usually use bots that simply guess usernames and passwords. It is also important to back up your data every night and keep an eye on unusual activity on the site.

Tips for Borrowers Negotiating a Loan: Part 6 After the Closing

Clint M. Hanni

April 2017

It’s a great relief for the borrower when the documents are signed and the money is wired. What happens after the loan has closed is critical to a successful loan.

  1. 1. Post-closing matters. The lender may have a laundry list of items for the borrower to provide after the closing. It almost goes without saying, but it’s in the borrower’s interest to complete all post-closing matters as promptly as possible. The borrower will usually be paying for the attorney’s fees of the lenders. The longer post-closing items drag on, the higher the attorney’s fees will be. Getting the post-closing items done quickly will save the borrower money and get the borrower-lender relationship off to a good start.

2. Prompt financial reporting. Many loan documents require ongoing reporting of financials, usually on a quarterly and annual basis. Borrowers that miss financial reporting deadlines (usually 45 days after each quarter and 60 days after the end of the year) put themselves at risk of getting a default notice from the bank. If the borrower won’t be able to get financials to the lender on time, they should give the lender notice before the due date.

3. Keep the lender in the loop. There will be times when a borrower fails to reach a financial covenant set by the bank in the loan documents. Sales may be down, and unforeseen expenses may lower net earnings. In times of financial distress, it’s in the borrower’s interest to contact the bank early and give them notice. Most borrowers tend to wait until the last minute to report bad news to their lender, but this will only erode trust between them. The borrower should strive to be as open and transparent with the lender as possible. By doing so, the lender will be more flexible and accommodating if the borrower misses a financial covenant or a payment. Lenders will often go the extra mile to assist cooperative borrowers. Without such trust, the Lender may quickly seek to enforce its rights against the borrower when the borrower can least afford it.

4. Keep your lawyer engaged. After the loan is closed, borrowers tend to drop their lawyer off the radar screen until an angry letter arrives from the lender. The better approach is to call your lawyer at the first indication of trouble. A good finance lawyer will be able to help a borrower frame a solution and formulate a proactive plan for dealing with its lender when difficulties arise. Visit https://www.richardsbrandt.com/practice-areas/utah/bank-finance-attorney

 

 

 

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