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Kenneth Allyn Sprang

Kenneth Sprang’s Answers

762 total


  • I'm the owner of a recently incorporated C-Company in Delaware, why should I hire an attorney?

    The company has been just incorporated and we haven't issued stock yet. My question is which are the key points I'll need an attorney to work on?

    Kenneth’s Answer

    I do not know whether you turned to Legal Zoom or another third party or registered your C corporation yourself. Chances are pretty good either way, however, that your Certificate of Incorporation has only the state minimum requirements and none of the provisions an attorney usually adds to protect directors, etc.

    Another question in my mind is why you have a C corporation, unless you intend to file to be taxed as an S corporation. Of course, I do not know the business or your long term plans.

    If there are to be additional shareholders, then a shareholders agreement is all but imperative. Likewise there are decisions to be made about bylaws. There are stock bylaws but rarely does one size fit all.

    Those are just the beginning matters. I represent many start up companies and I regularly establish them in Delaware. When I work with a startup, however, I spend time with clients determining near and long term goals. We discuss corporate governance, how to minimize tax liability, etc. I also tend to direct clients to other resources they need, e.g., CPA, import-export expertise, etc.

    In my experience what commonly happens when people act without counsel is that some of the corporate essentials, e.g., adequate capitalization and record keeping, are overlooked. Few laypersons are going to read the entire Delaware Corporation Law. I also use a registered agent whose charges are a fraction of that charged by competitors.

    I understand your reluctance. I hate paying realtors and others for services I think I can handle on my own. However, inevitably I have found over several decades of practicing law (and buying and selling houses), that letting professionals do what they know how to do and what they do day in and day out is usually, at the end of the day, a more cost effective choice.

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  • Can an attorney be hired to represent an LLC member during mediation? I am one of two equal members in an LLC.

    The LLC is a very small business incorporated in Deleware. Our business is in Texas. LLC agreement stipulates the use of mediation for any member disputes.

    Kenneth’s Answer

    It is quite common for persons in mediation to be represented by counsel. So long as the operating agreement (or any other agreement) does not prohibit representation, the members or either of them should be able to have representation.

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  • What is the best way for a Foreign Company to set up an LLC in the NYC?

    This is a Brazilian Company and they need to set up quickly.

    Kenneth’s Answer

    I do a great deal of this work throughout the U.S. and I have a number of clients in New York. My firm has created a niche serving foreign nationals and foreign companies wishing to do business in the U.S.

    First, you must determine whether an LLC or a C corporation is the best structure. The question at the end of the day is a tax question. We work with a CPA firm that has extensive experience in dealing with foreign companies, transfer pricing and the like. The critical issue is to assure that you are not taxed twice on income generate by the American subsidiary.

    Further, I would want to discuss with you whether organization is preferable in Delaware or New York.

    I would be happy to speak to you without cost or obligation to discuss your options. We can do that with Skype or I am happy to ring you if you wish.

    We also, by the way, work with a freight forwarder and other outside resources to assure assistance in any import or export issues.

    Kindest regards,

    Ken Sprang
    Washington International Business Counsel, LLP
    Washington, DC

    ksprang@wibclaw.com

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  • Do I need to incorporate, create an LLC for a consulting business?

    Like a lot of folks, I'm "in between" jobs. I have some offers for consulting work and believe that might be my niche for the near term. Do I need to create a corporation or LLC? My work would mostly be web content, marketing and business strategy...

    Kenneth’s Answer

    I would strongly recommend that you create an S corporation or an LLC for three reasons. (I favor S corps for some tax savings, but at this point it may not matter much). First, it does provide liability for personal assets should any client become unhappy. Second, it helps to clearly establish you as an independent contractor with your clients. Finally, by setting up your business you may be able to take advantage of some desirable plans for saving money, plans superior to the garden variety 401(k). The cost of setting up the LLC is modest particularly when measured against the benefits.

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  • Import/Export Attorney for consultation in Chicago/ IL

    Hello, first of all my apologies as this is not a question. I'm requesting for help as I couldn't find any results while searching for business attorneys for import/export . Looking for an attorney in Chicago area who could provide overall consu...

    Kenneth’s Answer

    • Selected as best answer

    Our firm does a great deal of work both with start-ups and with clients engaged in importing and exporting in the U.S. Our clients are coast to coast here and an increasing number abroad. My experience has been that a good freight forwarder can usually meet your needs at lower cost. You need a good accountant experienced in international transactions to advise regarding tax and related issues, and you need corporate counsel for your set up. Depending on the goods and services you are dealing with you may well find all your needs in import and export can be met by the CPA and freight forwarder.

    I would be happy to pass on the names of the CPA and freight forwarder to which I refer my clients.

    Best regards,

    Ken Sprang
    Washington International Business Counsel
    Washington, DC
    ksprang@wibclaw.com

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  • When an LLC gives away a portion of the company (either through sweat equity or investment), is everyone's percentage diluted?

    Does this new owner also get his shares diluted? For example, let's say we agreed to give him 40% for sweat equity (vested of course). He doesn't actually get 40% right because his shares would also be diluted? Also, does it matter whethe...

    Kenneth’s Answer

    The answer for the most part depends on how the company is structured. . If you promise someone 40% that would normally mean that only 60% is available to others. If one person or group of persons holds 60% of the authorized shares (or membership units for an LLC) then the new person will hold 40% and no more.

    Having said that, if you had 100,000 authorized shares and the new person received 20,000 shares while other owners held 50,000 shares, with 50,000 unissued, the new owner would have 40% of the company so long as no more shares were issued. Ownership is determined by issued and outstanding shares or membership units.

    When dilution occurs because of someone investing capital, the value of the remaining shares or units typically stays the same or increases. Here, of course, with no capital investment, dilution of value is a very real, indeed probable, result.

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  • In what situations is a contract draft review not necessary?

    It refers to Software quality assurance..I mean in the Software Quality Assurance context..

    Kenneth’s Answer

    Your question lacks context, so I raise that caveat first. Having said that, I could certainly tell you stories of clients who signed agreements without either understanding all of the terms and/or without having an attorney review them. If you are talking about an agreement in which you are buying or selling services or goods, or in which you have any possible exposure at all, money spent having counsel review the agreement is money very well spent. A few hundred dollars invested now could save you lots of aggravation and possible money later.

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  • What type of business entity is best fits the wholesale used car dealership in Delaware

    LLC, Incorporation, Corporation etc. wholesale of cars on different auctions.

    Kenneth’s Answer

    • Selected as best answer

    I generally prefer S corporations because they have tax advantages. At the end of the day if you are the only owner, the decision should be driven primarily by tax considerations. Many folks are intimidated by corporations, but in DE you can create a close corporation for your S corporation allowing you to run it almost like an LLC. Unless your accountant advises something else for tax reasons, you might want to seriously consider a Delaware close corporation and elect to be taxed as an S corporation. That could save you 15.3% tax on some of your income.

    Fortunately you are in the state I like best when setting up new companies. Delaware does this better than anyone else in my view.

    I do think you are best served by consulting with your accountant before deciding and using business counsel to set up the company, rather than one of the one size fits all companies that create new companies.

    I am happy to discuss with you of course without obligation.

    Best regards,

    Ken Sprang
    ksprang@wibclaw.com

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  • How does a corp. issue stock?

    If a corp. in the process of IPO gifts be 50k shares of common stock by writing a handwritten letter or making their own stock certificate, is this considered owning actual stock when it comes time to sell it?

    Kenneth’s Answer

    If you are in the process of an IPO, I strongly urge that you consult with your counsel. The articles of incorporation and/or bylaws (and/or the statute) may address the requirements as to a certificate. Typically a certificate is not required. It is the entry on the books of the corporation and the authorization by the Board of Directors that controls. What concerns me is that if you are gearing up for an IPO, you need to have all the t's crossed and i's dotted in your corporate records.

    I am happy to spend a few minutes explaining without cost if you don't have counsel. Of course, if you are at this point I am hoping that you in fact do have counsel in whom you have confidence.

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  • My company is not making any money at the moment and I wanted to add my parents as partners and give them a percentage?

    Because my company is not making any money will this pose a problem? My company has been in existence for less than 3 years.

    Kenneth’s Answer

    • Selected as best answer

    I agree with Ms. Jurado. If the company really has no value then you could issue the shares or membership interests with little or no tax consequence. The process is easy. The only question is the value of the company. If the company has value and you give them an interest there could be tax consequences, depending on how the numbers add up.

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