The following case studies are presented as illustrations of the types of projects Couch White's Business and Commercial Group has recently completed.

• Bringing Ideas to Market
• Selling Stock of a Third-Generation Corporation
• Purchasing Interest from Disgruntled Shareholder
• Purchasing a Controlling Interest of an Out-of-State Corporation

Bringing Ideas to Market

A local start-up company with beginnings at one of Albany's universities contacts our Commercial and Transactional Law Practice Group for advice on how to bring one of its ideas to market.  Our Commercial and Transactional Law Practice Group sets our counseling process in motion:

We start by fully understanding our client, our client's business, it's market and our client's goals and limitations.  We analyze existing agreements and other arrangements that may already exist, and we offer substantive alternatives to our client.  We help our client develop an overall strategy and plan for its business, and we help our client navigate the pitfalls of compliance.

We counsel our client on entity selection, for limitation of liability, keeping in mind regulatory and tax consequences of any such decision.  We work with our client in forming the proper type of entity, and we draft and file any required documentation.

Finance is important to any business, and we offer assistance by suggesting and analyzing financing alternatives from among private investment, venture capital and government incentives.  Our task is to serve as our client's advocate through any financing process.  We walk our client through negotiating a term sheet with a local bank, for instance, while drafting and negotiating loan documents and closing the loan transaction.

Understanding the tax consequences of any business decision is a necessity.  Our attorneys develop a plan with our client and our client's accounting professionals to develop a roadmap for maximizing state and federal taxation efficiencies.  We also assist our client with tools for establishing business succession planning, if necessary.

Our client will need counseling regarding its intellectual property.  Our team is well situated to help our client understand the different types of intellectual property it has and to establish the proper protections for that intellectual property.  We assist our client in the analysis, negotiation and drafting of license agreements and the preparation and filing of trademark applications.

We might assist our client with negotiating and drafting employment and independent contractor agreements.  We will assist our client in analyzing, drafting and negotiating manufacturing and distribution agreements for its product.  In short, we work with our client to develop a strategy for bringing its product to market consistent with our client's overall strategy and plan.

If our client needs space from which to operate, we counsel our client and negotiate a lease agreement on our client's behalf.  We may help our client take advantage of government sponsored incentives such as the Empire Zone Program.

Finally, we remain committed to our client after the last contract is negotiated, after the last lease is signed and after the final loan is closed.  Our aim is to become a trusted business advisor to our client; we are a long-term partner in navigating the complexities of the business world for our client.

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Selling Stock of a Third-Generation Corporation

Our clients owned a construction corporation that was formed in the mid-1930s. Couch White had provided general counsel and litigation counsel to the corporation for over a decade. Our clients had listed their corporation as a company for sale with a broker acquainted with Couch White.

Our clients contacted us about an offer that they had received from a potential buyer to purchase all of the stock of their corporation. We analyzed the offer, advised our clients regarding their options, and our clients chose to accept the offer.

The transaction involved a substantial number of parcels of real estate.  We assisted our client in obtaining surveys and environmental studies, and in resolving issues concerning mortgages and taxes.

We also assisted our client in negotiating a stock purchase agreement. We drafted consulting agreements for the selling shareholders, and an employment agreement for a key executive with a formula for incentive compensation. We assisted our clients in resolving issues concerning the pledge of life insurance. We also negotiated the terms of seller financing in the form of promissory notes.

We also assisted the buyer in coordinating financing. In the end, we closed the transaction and confirmed wire payments to our clients.

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Purchasing Interest from Disgruntled Shareholder

Our clients presented us with a summons and complaint by a family member who had just sued them in court to dissolve their second-generation, family-owned corporation.

The corporation was doing well. It was profitable. In fact, profits had been increasing in recent years. However, a member of our clients' family who had inherited one-third of the stock had become, over the years, increasingly passive and hostile in his management and ownership of the family corporation.

Our first step was to counsel our clients regarding their options. Our clients' options included making a formal election to buy out the hostile shareholder, to defend the dissolution lawsuit, or to negotiate a settled buyout while defending the dissolution lawsuit. Based on the pros and cons of each option, our clients chose to negotiate a settled buyout and to defend the lawsuit.

Our next step was to coordinate appraisals of our clients' business assets. We obtained appraisals of mineral reserves, real property, equipment, and the business as a whole, after discussing with our appraisers the applicability of various discounts based on the governing case law.

After exchanging appraisals, we engaged in extensive negotiations with the dissenting shareholder's counsel. As a result of those negotiations, we procured a settlement agreement providing for our clients to buy out the dissenting shareholder for cash and certain real property interests, bringing the lawsuit to a close.

We then assisted our client in obtaining bank financing for the cash portion of the buyout. We worked extensively with a surveyor and a title company to coordinate the conveyance of the negotiated real property interests. We also negotiated real property licenses between our clients and the dissenting shareholder.

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Purchasing a Controlling Interest of an Out-of-State Corporation

A client of the firm contacted us in connection with his plan to purchase a controlling block of stock of a family-owned out-of-state corporation. We first conferred with our client about his objectives, and we prepared an action list mapping out our strategy for obtaining his goals.

We drafted a letter of intent, outlining the terms of the transaction that our client was ready to proceed with. We negotiated with the seller's attorney, and finalized the terms of the letter of intent.

After the letter of intent was executed, our next step was to form an acquisition vehicle for our client. After conferring with our client, we formed a New York State company as an entity for our client to accomplish the acquisition while minimizing the exposure of our client and his existing companies and maintaining the most tax-advantaged entity for owning the controlling block of stock.

After forming the acquisition entity, we proceeded to perform our due diligence regarding the corporation to be acquired. We performed a search with the corporation's state's department of state for all filings of record. We performed a search for UCC financing statement. We procured a title search concerning the seller's real property.

While performing our due diligence, we drafted and negotiated a stock purchase agreement, outlining the terms of the transaction. Issues that we negotiated included provisions of the agreement outlining the seller's obligation to indemnify our client in the event that any liability ever surfaced stemming from the seller's pre-closing actions. We also drafted and negotiated an employment agreement, providing for the seller to remain with the company as an executive. The employment agreement set forth the terms of his employment and provided a formula for his regular and incentive compensation.

We also assisted our client in procuring financing for the transaction. We arranged for our client to procure bank financing and assisted him with that process, including providing information to the bank, reviewing loan documents, and closing on the loan. We also assisted our client in procuring seller financing, including the drafting, negotiation, and execution of a promissory note, providing for the seller to lend our client part of the funds needed to buy the controlling block of stock.

Lastly, after preparing checklists for closing, we assisted our client in closing the transaction, wiring funds and procuring stock certificates, and drafting new bylaws and minutes of shareholder and board of director meetings establishing the corporation's new internal rules and regulations.

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