All businesses in Morgan Utah are expected to preserve certain records and information. Failure to do so can prove costly. Speak to an experienced Morgan Utah Corporate Lawyer to know how your business can preserve its vital records.
The tidal wave of mergers, acquisitions, and takeovers of the eighties has subsided and changed somewhat in nature. Merger activity is focusing more on cross-border deals than domestic acquisitions, and is motivated more by long-term, strategic considerations than short- term, financial considerations. Strategic alliances are picking up where today’s mergers and acquisitions leave off. Other changes affecting business today are a continuing effort to be lean and mean through downsizing or restructurings in order to adopt the capabilities of new technologies or respond to changing market conditions. Facility moves also are under way as companies continue to search for better business or real estate conditions.
Managing change is complex and challenging, and a business needs responsive, supportive information systems. Business must be able to respond quickly to changing conditions and expectations among a wide range of constituents: customers, employees, government, stockholders, suppliers, and the general public. Good information systems help identify those changing conditions, and they support the necessary business response. The potential of a good record management support should not ignored. How well a records and information management program is designed will determine how well it supports the business throughout the change process from the point of conceptualization and decision-making through operations under the new business conditions. Records and information systems help ensure compliance with relevant laws and regulations, and the fulfillment of obligations to individuals and other entities. This becomes especially important during times of change, which tend to breed more litigation and government investigation. A business may need timely access to records created prior to the change, records that document the change process, and records after the change in order to defend itself against charges or to file any necessary claims.
Whenever joint ventures, strategic alliances, mergers, or acquisitions are considered, there will be the sharing of sensitive and valuable records and information between the parties involved. This information is disclosed to the potential buyers, who may be competitors, customers, employees, suppliers, or investors. Outside professional advisory services also may need access to extensive financial and proprietary information to assist buyers in their analysis of the proposal. These parties may be accounting firms, investment bankers, business brokers, acquisitions specialists, or business appraisers.
An enterprise will want to protect itself and its secrets in order to prevent the takeover of a joint venture, unfair advantages to another party, or unauthorized disclosure of the information to others. Encoding of certain information may reduce the risk somewhat, but every individual or organization that will be in possession of sensitive or valuable records should sign a confidentiality agreement that provides for the protection of the company’s privacy and intellectual property. Publicly held companies also will want to take special care in guarding information about the proposed venture. Improper disclosure of information to outside parties, or improper use of that information, may result in charges of insider trading. Before you disclose any information to outside parties consult with an experienced Morgan Utah corporate lawyer.
If you are planning to sell your business, properly maintained records can help with better valuation. To determine a fair asking price for the business, or the portion(s) of the business to be sold, records will be required to identify assets, liabilities, and any other obligations, such as warranties or other agreements. Even the archives of a business may be treated as an asset in the negotiation of a sale, or as a tax write-off if a decision is made to donate the archives to a nonprofit organization. A potential buyer will want to evaluate the past track record, present outlook, and future potential of the target business. Records will be assembled, processed, and created for the critical financial and legal audits necessary in this evaluation process. Also appropriate may be an analysis of external information regarding current and future market conditions that may impact the business. A legal audit also will require the review of a number of company records. Documents of title and public records may need to be scrutinized to confirm that the assets for sale are free of encumbrances and restrictions on their use. Are there any pending or foreseeable claims, lawsuits, or government investigations? Are there any contingent liabilities, such as warranted products? What is the extent of compliance with various government requirements for safety, labor, environment, wages, taxes, retirement plans, and more? What are the rights and obligations stipulated in contracts, agreements, leases, permits, and licenses? Among the documents and information required for other legal considerations are:
• a list of all states where the target company is qualified or authorized to do business
• deeds and titles
• intellectual properties, including trademarks, patents, and copyrights
• product or service agreements and warranties
• powers of attorney
• contracts for the purchase of materials, supplies, and equipment
• lists of creditors
As the analysis and negotiation process continues, additional records are processed and created on top of the existing records made available for review. Financial models may be developed to evaluate a number of different scenarios. The effects of alternative structures or the timing of a transaction on taxation may be documented for study. There may be other records created in support of certain legal considerations, and records may be produced for disclosure to certain parties or filed with a government agency in order to comply with a government requirement.
Government Requirements and Legal Considerations
If your business is in the process of an acquisition or merger, consult an experienced Morgan Utah corporate lawyer. Throughout the analysis of a proposed acquisition or merger, government requirements or other legal considerations will compel the review, creation, or disclosure of certain records. The burden of compliance with antitrust, securities, taxation, environmental, consumer protection, and other legislation must be assessed. Issues of timing, financing, and other strategies must be considered.
There may be a requirement of prior notification to the Department of Justice or the FTC regarding a merger or acquisition. The shareholdings of a target business may need to be traced to ensure compliance with SEC regulations or appropriate blue sky securities laws of the state(s) involved. A merger may require approval by the seller’s shareholders and the shareholders of the buyer, unless the buying corporation already owns a majority of the stock. There are a number of federal and state laws that require a franchisor to disclose designated information to a potential buyer within certain time frames associated with the payment of deposits and the signing of an agreement. Mergers of companies that are competitors or that produce similar goods or services will need to pay more careful attention to antitrust regulations than mergers of companies that will form a conglomerate. An advance review of business plans for proposed operations or mergers by the Department of Justice will ascertain whether they involve risks of criminal prosecution. Document filings with the Department of Justice’s antitrust division or the FTC will be required when a merger or acquisition meets certain legal criteria, including transaction size and the degree of control being acquired. There may be other legal or government actions necessary before final closure of a deal. Businesses may need to be prepared to justify their actions in response to government investigations or complaints from competitors, suppliers, customers, or shareholders. There may be actions taken by others against one or more parties that result in a temporary restraining order or preliminary injunction, litigation, or further government investigation. The existing records and new documents that may be required for any litigation or investigation will need to be organized, indexed, duplicated, and forwarded to the appropriate government agencies or a court.
Contracts and Agreements
When one business takes over another business, it typically takes over its assets, customer base, data processing systems, product and environmental liabilities, tax exposures, and other hidden liabilities. A business sale contract typically specifies:
• Assets to be sold
• Assignment of responsibility for various liabilities
• Purchase price
• Financing Arrangements
• Non Competition or consulting arrangements
• Provisions for arbitration
A sale agreement may or may not stipulate that certain or all debts and liabilities will be assumed by the buyer or will be retained by the surviving organization. However, clarification of which assets and liabilities are and are not part of the agreement is critical to the avoidance of lawsuits further down the road. Separate employment contracts often are used in supplement to a sale agreement to ensure the retention of key personnel. It is highly recommended that a clause be included in a sale contract that specifically addresses the responsibilities of each party for the business records in all forms–paper, microfilm, electronic, and so on. In the absence of a clause that speaks to records responsibilities, the assumption is that records responsibilities will go to the party that assumes the relevant assets, liabilities, or obligations as designated in the terms and conditions of the sale contract. Any large volume of inactive records should be mentioned in the agreement, as it may represent a significant expense to the party who will be responsible for the maintenance of those records for as long as they may be needed for legal or government purposes. Under the agreement, the target company may be responsible for preparation of records for the new owner by organizing, consolidating, segregating, and even duplicating and packing the affected records. Time frames should be established for any duplication and transmittal of the records to support the acquired portions of the company. Procedures and responsibility should be determined for any necessary records and information searches resulting from the fact that designated records were not provided at the time of cut-over.
Post Merger or Acquisition
The newly formed organization will need immediate access to important company data from all acquired segments in order to support its assumed customer base, assets, legal liabilities, and other terms and conditions of the agreement. Timely integration of the various information systems into efficient, well-functioning systems is critical to the reconciliation of differences between the old and new organizations while simultaneously maintaining stability and effectiveness. Information from each company is required to identify and resolve transition issues, including:
• identification and notification of all customers and suppliers
• elimination or consolidation of redundant or obsolete business functions and activities
• determination of personnel requirements for the new organization and qualifications of existing personnel
• management and resolution of different employee pay scales, benefits programs, and retirement plans
• disposition of duplicate assets, including equipment, vehicles, and properties
• collection and indexing of documents relevant to pending and potential litigation and government investigation regarding the merger, as well as activities of the individual acquired companies
• development of budgets and realistic timetables for transition activities
Disposition of Records
The parent company, former board of directors, general partners, or owners normally are personally responsible for the maintenance of a company’s records when an organization is totally dissolved. The records to be maintained are those that may be required by government regulations or court proceedings, and they must be maintained for the time period necessary to meet those obligations. These individuals may be sued or fined for any violations of legal record-keeping requirements.
When the disposition of the acquired company’s records is not clarified by an agreement, that responsibility normally is determined by default. Records related to specific legal responsibilities, debts, and obligations should be retained by the organization that assumes those burdens. Certain records may be required by more than one organization if assets and obligations are divided among the organizations. The new owner should identify records associated with the assets, liabilities, and other business functions it now has assumed, based on the sale agreement, to determine the proper disposition of records.
If the acquired records are well indexed, it may be possible to compare those records with the new owner’s records inventory to identify any duplicate or similar files that may be easily consolidated–especially customer or vendor files. All other active records must be clearly and accurately indexed and labeled so they may be merged with those of the new owner and maintained in the same manner as those records.
Corporate Lawyer in Morgan Utah Free Consultation
When you need legal help for a business or corporate matter in Morgan Utah, please call Ascent Law for your free business law consultation (801) 676-5506. We want to help you.
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506