Optima Law Group Blog

Corporate Maintenance: I Incorporated – Now What?

Congratulations on making it through tax season! Just like filing taxes each year, there are other things required annually if you have a corporate entity, in addition to the standard tasks that must be completed initially after incorporating. You may think that after the entity is formed, everything is complete – this is not the case. Generally, it is advised that a corporation do the following after its initial formation:

1.       Conduct business as a corporate entity which means to reflect the corporation’s full legal name,       address and telephone number on invoices, correspondence and letterhead, signage, listings, lease agreements, etc.

2.       Check to see if local business licenses are required where you are doing business (E.g. city, county, etc.).

3.       Make required annual state filings and pay associated annual state fees (note: California also requires a filing within 90 days of incorporation).

4.       Hold, at least, annual meetings of the shareholders and meetings of the board of directors, and properly document these meetings.

5.       When offering, issuing, or selling securities be aware of and adhere to federal and state securities laws, especially given the broad definition of a security.

6.       Protect the corporation's valuable patent, trademark and trade name assets by taking the necessary steps to prevent against loss through improper timing, usage and infringement. This can be registering your corporation’s name or logo with the USPTO for example, or requiring employees to sign agreements guaranteeing the safekeeping of trade secrets, confidential information and ownership of intellectual property.

7.       Obtain appropriate insurance to match your business activities.

8.       Comply with local zoning laws.

9.       Acquire health, police, and fire permits, if applicable.

10.   Register the corporation with the Securities and Exchange Commission ("SEC") if you choose to raise capital, and then complete the necessary filings (blue sky, etc.) before or immediately after the first sale (as required by the states involved).

11.   Create an Equity Incentive Plan for employees in the form of stock options, if applicable.

12.   Establish and execute agreements such as employment agreements, board of directors agreements, advisory agreements, consulting agreements, confidentiality agreements, license agreements and the like.

13.   Document the corporation’s debt or expense obligations. Make the balance sheet, income statement, and a statement of changes in financial position for the fiscal year, etc., available for inspection, if required.

14.   Keep personal and business finances independent of one another at inception as well as moving forward. This starts by opening a bank account solely for the corporation. “Piercing the corporate veil” is legal slang to describe a situation when an entity’s legal existence is ignored because the owners neglected to treat the corporation as a true and separate entity (E.g. keep their personal expenses and finances separate from the corporation’s). This can be problematic because if a business comes up short and cannot pay their creditors due to the owners using the entity’s money to pay personal expenses, the creditors could be entitled to go after the owners directly.

That was just a summary of some of the numerous responsibilities a newly formed corporation must be cognizant of! As previously mentioned, annual maintenance, by way of annual “minutes” (described below) and annual state filings, must be done for a corporation in order to keep it in good standing. In order to stay compliant with federal and state laws, a business must ensure its maintenance for the duration of the entity’s life. Each year (depending on the state of incorporation), corporations must make an informational filing with its state of incorporation. This must be done regardless of whether there were any changes or not, and includes general information such as the names and addresses of corporate directors and officers, etc. Annual corporate maintenance requirements vary by state, but California law, for example, requires shareholders meet at least annually to vote on electing directors and discuss other key business decisions. A record, listing the issues that were presented and voted on during the meeting – known as “minutes” – must be documented and kept on file, and then certified by the secretary. This not only catalogs the results and decisions made during the meeting, it also serves as evidence that the meeting took place should compliance ever be questioned.

Although it is extremely important that a corporation comply with the annual requirements in a complete and timely manner, attending to this sort of maintenance can easily be overlooked or inconvenient to businesses. For these reasons, many of our clients prefer to hire our Firm to maintain their companies’ corporate records.  We offer a program of standard maintenance to keep your corporation compliant for a flat fee, which includes:

1.       Annual state informational filing in the state of incorporation, as needed;

2.       Preparation of standard minutes for one annual meeting of the shareholders, or an action by written consent in lieu of one annual meeting of the shareholders;

3.       Preparation of standard minutes or consents for one additional shareholders meeting, upon client’s request;

4.       Preparation of standard minutes for one annual meeting of the board of directors, or an action by written consent in lieu of one annual meeting of the board of directors; and

5.       Preparation of standard minutes or consents for one additional board of directors meeting, upon client’s request.
 

If you are interested in having us maintain your corporate records, please contact us, as we would be happy to answer any questions you may have. We can even catch you up if you are several years behind.

Please contact us at 858-964-4697 or info@optimalawgroup.com.

Suggested article for additional information: https://smallbiztrends.com/2011/06/corporation-llc-in-compliance.html

 

CU New Venture Challenge R&D Track

The University of Colorado Boulder held its 9th New Venture Challenge (NVC) R&D Track Finals competition recently! 

The New Venture Challenge is a competition that gives aspiring entrepreneurs within the CU Boulder campus including students, faculty and staff the unique opportunity to work with business mentors in the area to develop and bring their innovative ideas to reality! Competitors then go head-to-head with other creative teams for the winning spot to receive awards, cash prizes and vouchers.

Optima Law Group sponsored the $5000 Grand Prize for the winner of the competition and Optima Law Group’s own Tom Jurgensen, served as both a judge and mentor for this year’s NVC. The competition featured amazing entrepreneurs and companies in all R&D related disciplines.

CONGRATULATIONS to Reform for winning this track of the competition. Now onto the finals for all tracks held this week on April 6, 2017.

 

For more information on participation, sponsorship and mentorship please visit:

http://www.colorado.edu/nvc/

Why You Should Not Wait to File Your Trademark Application

There are so many benefits to registering your trademark. The ability to protect your brand, distinguish your goods and/or services from potential competitors, and to build an increasingly valuable asset makes it a wonder why companies would ever risk waiting to file a trademark application. The costs to obtain a registered trademark are significantly less than the costs to obtain a patent, but they are equally important. Furthermore, the detriment of having to rebrand and pay damages for inadvertently infringing on another’s trademark rights far exceeds the monetary cost of trademark registration. Obtaining trademark protection should be looked at as a preventative measure to safeguard your company’s prospective success in addition to the benefits listed below. Being proactive early will help ensure your brand is not vulnerable and left without a leg to stand on should the use of your mark be contested.

 

1.      Receive immediate significant benefits.

  • When you register your trademark, you are automatically entitled to the legal presumption that you are the owner of the mark and have the exclusive right to use the mark. It notifies the public of your trademark’s ownership and lists the mark in the USPTO’s database which helps prevent a company picking a trademark too similar to yours. It prevents the importation of counterfeit foreign goods - U. S. customs will not accept any imported goods that may infringe upon your trademark. A registered trademark gives you the right to bring legal action concerning your mark in federal court. You can use your U. S. registered trademark as a basis for applying for registration in other countries. Finally, you can use the ® symbol to identify your mark as a federally registered trademark with the USPTO.

 

2.      Be the first one to the finish line.

  • Luckily the U. S. adheres to a “use-based” system, whereas most other countries follow a “first-to-file” system. With that said, If you do not register your mark and someone else comes along, who has been using an identical or similarly registered trademark in commerce prior to you, you could not only have to stop using your trademark, making your inventory, marketing materials, domain names worthless, and losing goodwill and online presence associated with your trademark, and you could be sued and ordered to pay pecuniary damages for infringing on the registered owner’s trademark rights. This could have all been avoided by way of a trademark search for conflicting or similar marks, had you first sought to register your trademark at the beginning.

 

3.      Increase value to your company.

  • The longer a trademark is registered the stronger it becomes and the less vulnerable it becomes to attacks from a third party claiming rights to that trademark or a third party claiming that your trademark infringes upon their trademark rights. Having a registered trademark increases the value of your company, regardless. Having a very strong trademark due to it being registered for many years makes it even more valuable to, for example, a potential acquirer of your company.  In fact, well known trademarks (Google, Apple, Facebook, Coca-Cola etc.) are easily worth in the multiple tens of billions of dollars.

 

4.      Squatters.

  • U. S. trademarks only provide protection in the United States, so the risks of waiting to file your trademark application for registration is not exclusive to the country you do business in, especially if you ever plan to expand and do business overseas. “Bad-faith trademark filing” or “trademark squatting” is a party that purposely and actively seeks registered trademarks in a country and then turns around and registers that trademark in one or more other countries where the trademark has not yet been registered, giving them ownership and the exclusive rights to use that trademark. The intention is to get monetary compensation from the true trademark owner when they expand to that market.

 

Being proactive and vigilant is key to the protection and branding of your company. Waiting to file a trademark application not only puts your company at risk, but it is a missed opportunity to create value and stability.  

Let us help you with your trademark needs so that you can start enjoying the benefits of a registered trademark and avoid the dangers of waiting too long to file your trademark application.

We would love to hear from you.  Please contact us at 858-964-4697 or info@optimalawgroup.com.

 

2016 SEC Crackdown

2016 proved to be a busy year for the U.S. Securities and Exchange Commission (SEC) – breaking records for filed enforcement actions in many areas and allocating the most money to whistleblowers in a single year. Accordingly, it is more important than ever to ensure compliance with applicable securities laws when raising capital and engaging in other securities related transactions. 
 
The results can be attributed to former SEC Chair Mary Jo White’s promise to make big companies and executives as well as minor violators accountable for illegal actions, coupled with new data analytics implemented in 2016 used to uncover fraud.
 
 
2016 was also a year of firsts for the SEC as the following violations were never charged before then:
 
a firm solely for failing to file Suspicious Activity Reports when appropriate 
an audit firm for auditor independence failures predicated on close personal relationships with audit clients 
municipal advisors for violating the fiduciary duty for municipal advisors created by the 2010 Dodd-Frank Act and the municipal advisor antifraud provisions of the Dodd-Frank Act
a private equity adviser for acting as an unregistered broker; and an issuer of retail structured notes for misstatements and omissions
 
Other areas the SEC focused on in 2016 include:
 
Combating Financial Fraud and Enhancing Issuer Disclosure
Holding Gatekeepers Accountable
Ensuring Fairness Among Market Participants
Rooting Out Insider Trading Schemes Through Innovative Uses of Data and Analytics
Uncovering Misconduct by Investment Advisers and Investment Companies
Fighting Market Manipulation and Microcap Fraud
Halting International and Affinity-Based Investment Frauds
Policing the Public Finance Markets
Cracking Down on Misconduct Involving Complex Financial Instruments
Combating Foreign Corrupt Practices
Standing Up for Whistleblowers
Demanding Admissions in Important Cases Enhancing Public Accountability
Successful Litigation
 
 
With the SEC’s compliance enforcement practices increasing and rigorous prosecution of violators, it is imperative that businesses stay compliant with the ever-changing standards.  
 
We would love to answer any questions you may have about federal or state securities compliance to ensure that your business is adhering to SEC and state laws. 
 
Please contact us at 858-964-4697 or info@optimalawgroup.com.
 
For more information please visit the SEC’s website: https://www.sec.gov/news/pressrelease/2016-212.html
 

The Dangers of Waiting Too Long to File Your Patent Application

You are an inventor, and you think you have developed the NEXT BIG THINGTM. You are sure that your product will be popular, and so you think you will want to file a patent to protect it eventually, but you are less sure that you want to file for a patent right now. You have spoken with friends and poked around online and you think you have a pretty good idea of when you would like to file your application. While lot of the “advice” in this area isn’t inherently wrong, it does tend to gloss over or ignore many of the dangers that are associated with waiting too long to file a patent application. Below, we attempt to clearly articulate the biggest problems that can arise if you wait too long to file your application.

1.       Getting scooped.

  • Under the new “first inventor to file” system in the United States, if someone independently comes up with your invention, or some critical part of it, they will be free to file for a patent of their own. If they do so, not only will it prevent you from patenting your idea, it will prevent you from profiting from it AT ALL. This is obviously the worst case scenario, so you need to ask yourself, what are the odds that no one else IN THE WORLD is trying to solve the same problem that you are?

2.       The Ticking Clock.

  • If you want to earn an enforceable patent in the United States, you must file your application within one year of the day you publically disclose your invention. The problem is that it is very easy to accidentally disclose your idea.
  • Have you described it in a printed publication, used it in public, or offered to sell it? All of these will likely start the 1-year clock. The important thing to remember is that whether or not something counts as a disclosure is very “fact dependent.” Did your Kickstarter campaign count as a sale or offer to sell? What about the market research you did using your prototype? Or what about your discussions with a potential manufacturing partner? Depending on the facts, any or all of these scenarios can start the clock. For this reason, it is always a good idea to call a patent attorney before you tell anyone new about your invention.

3.       Global rights.

  • Unlike the United States, most foreign countries do not have a one-year grace period following a public disclosure. If you disclose your idea, even accidentally, before you file a patent application, you will NEVER be able to protect that invention in those countries. While you can certainly still try to sell your invention in those foreign markets, there will be nothing to stop your local competition from swooping in and knocking off your product.

While there are certainly good reasons to wait before filing a patent application, it can be helpful to know the risks involved in doing so. The good news is that there are a number of options available, beyond a standard Utility Patent Application, which can help you avoid these problems without a substantial upfront cost. A good patent attorney will be happy to walk through your options and help you avoid the potential pitfalls described above. While it may still be in your best interest to delay in filing your patent application, it is never too early to fully explore your options.

Don’t hesitate to contact us about your NEXT BIG THING. We would love to hear from you at 858-964-4697 or info@optimalawgroup.com.

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