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Bradley William Miller

Bradley Miller’s Answers

127 total

  • How do I properly change an officer in a corporation?

    I just formed an Ohio corporation and one of the officers wants to resign. How do I go about properly changing officers on my paperwork? I need to know what paperwork needs to be changed. I know that my paperwork at the bank has to be changed, but...

    Bradley’s Answer

    This is primarily an internal matter for the corporation. You need corporate resolutions showing the resignation of the officer and the vote on his/her replacement. This is likely what the bank will want to see when you go to them. These should be in the same form as the initial resolutions/actions you drafted when you installed the first directors, approved the bylaws/code of regulations, named the initial officers, and approved shares of stock of the corporation for sale. If you don't have those documents, you need to go back and create them as they are part of the corporate formalities required by the corporation statutes -- it might not be a bad idea to have a lawyer draft them so you have a general template for them going forward.

    Generally speaking, the state doesn't care who the officers are. Ohio does not require you to register or submit a list of officers with them.

    I hope that helps. Let me know if you have any further questions.

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  • Should I have this document reviewed before I sign?

    My company just passed out a 7 page document I have to sign by Monday entitled, "Amended and restated agreement of confidentiality, non-competition and non-solicitation". It seems to prevent me as a bookkeeper from working out of my own home if I...

    Bradley’s Answer

    The answer to your first question is yes, you should definitely have the document reviewed by an attorney before you sign it. Based just on its title, it sounds like it would significantly impact your right to work if you quit or are fired. That is something I would want to be sure I understood before signing it.

    The second question can only be answered by the attorney who looks over the document for you. Generally in Ohio non-compete and related agreements are valid, as long as their aren't overly restrictive. Whether that is the case, and whether you would have an argument against it being enforced against you, will depend on the specific language since these are looked at on a case-by-case basis.

    Good luck.

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  • Is is possible to remove someone's name as an incorporator of your LLC?

    When I initially filed my incorporation papers I listed myself and another party as the incorporators as we were supposed to be working together. The partnership never materialized and she never did anything with the company beside sign her name ...

    Bradley’s Answer

    Mr. Studnicki is correct. In Ohio an "incorporator" is merely someone who helped form the business entity. I sometimes do this for my clients in fact. That does not make me an owner, nor give me any interest in the business. My name being listed on the SOS website just means I signed the articles of organization to form the company.

    I have heard of some people (namely banks) who look at who the incorporators are to help them determine if you are really an owner of the business. However, a quick letter from myself or a company resolution corrects this.

    I understand you don't want her associated with the business is any way going forward, but as I tell my clients, being an incorporator on the SOS website doesn't mean anything. That said, if you really want to get the other person "unlisted" as an incorporator, you may be able to do so by filing amended articles of organization (not just an amendment, but essentially resubmitting the entire articles). I don't know if this works for certain, however, as I have not had a client do it.

    More importantly, as Mr. Studnicki pointed out, is making sure she doesn't come back and try to make a claim against the company (think the Winklevoss brothers with Facebook). The best way to do that is to sit down with a business attorney and go through all the details of formation and how to best protect your interests.

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  • I have registered and incorporated my business name but would like to change the name. Can I do this, and if so, how?

    My business was created and registered last year and is listed as a corporation. I would like to remain a corporation but with under a different business name.

    Bradley’s Answer

    Yes, you can change the name of your business. You will need to amend the articles of incorporation. The Ohio Secretary of State has a form for doing this.

    Alternatively, you could file a fictitious or trade name. This would allow you to do business under a different name than your corporation name. For example, if your company is "Best Used Cars Inc.", you could use the fictitious name (also called a DBA) "A+ Autos" instead. The benefit of doing using a fictitious name like this is that you don't have to change the business name with the IRS, your bank, various state and federal agencies, etc.

    There are other options, such as those the others have previously mentioned, and I would suggest talking directly to a business lawyer to discuss them and determine which option is best based on your situation and goals.

    Hopefully you found this helpful, and good luck.

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  • What are the legal issues with acquiring apartments in this manner?

    Refinance/LLC Transfer Steps for apartment complexes 1.A new member is added to the LLC or Company (Myself). 2.Asset based, Non-Recourse Refinance to the property. (Titled in the company name) 3.Old financing is paid off with n...

    Bradley’s Answer

    I agree with Mr. Jaap that this is much too complex to try to get an answer to on Avvo. You need to talk specifically to an attorney and have him or her help you walk through the potential legal issues. He or she can then also help advise you on the best way to accomplish your goals for the transaction.

    I will also say that you normally don't quit claim an interest in an LLC. Quit claims are usually for real estate title. Interest to an LLC is sold or transferred through some sort of purchase or interest transfer agreement.

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  • What should i do to buy a business

    I want to buy a business. However the business is llc with 2 members. 1 of the member in llc agree to sell and the other doesnt want too. However the lease was sign by the one who want to sell the business to me. Can i buy the business or not?

    Bradley’s Answer

    The short answer is that you can probably buy the interest of the one member, but unless there is language in the operating agreement or another contract between the members that allows one to force a sale by the other, that other member would be your new "partner."

    In addition, you need to look at the operating agreement as there may be restrictions on the sale of interests in the company. So even if one member was willing to sell, there may be a requirement that all sales must have the consent of both members. If that is the case, unless you can get the other person to agree, you are likely out of luck.

    Ultimately you should get an attorney to help you with this. The purchase of a business can be very complicated and filled with hidden liabilities. An experienced business attorney can help you navigate the purchase and minimize your risks in the transaction as much as possible.

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  • I am leaving my company which is an s-corporation and my partner wants to continue the business.

    We have agreed to an amount on which he will purchase my stock in the company. what kind of paperwork is needed so I will no longer be liable for any debt or equipment leases in the company?

    Bradley’s Answer

    Is the company a corporation or an LLC? If a corporation, then you will need a stock purchase agreement for your co-owner to purchase your shares in the company. If it's an LLC, you will need a membership interest purchase agreement. While it is generally true that simply being a shareholder or member of the company doesn't make you liable for the debts of the company, and selling your shares or interest will additionally separate you from the company, I always recommend you get indemnification language in the agreement so that if someone would try to come after you your co-owner would be contractually required to defend you.

    Another issue is if there are any debts or contracts that you signed in your own name (as opposed to on behalf of the company) or that you personally guaranteed. Either of these can create personal liability for you regardless of the fact you have the company set up. While an indemnification agreement can help, you ultimately may need to go to each creditor or vendor and try to get your name off the contracts.

    As has been suggested, you really should talk to an attorney about this. The cost of getting help is much lower than what you may be facing if you don't properly separate yourself from the company.

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  • Who owns my business? Incorporator or statutory agent?

    My mom helped me start an s corp 2 years ago, she is listed as statutory agent, treasurer,me as incorporator. I am and have been pres/ ceo, and own 100% of stock. She is now trying to claim ownership of my bussiness. She was only supposed to help ...

    Bradley’s Answer

    Neither the incorporator nor the statutory agent owns the business (at least because of the person holding that role). The business is owned by the shareholders.

    An incorporator is a person who has the authority to "incorporate" the business. That usually means filing with the Secretary of State, getting the EIN, and some other initial start-up tasks. The incorporator can be anyone - they could be a shareholder, but don't have to be. I will often act as the incorporator when one of my clients wants to start up a new company. That doesn't mean I have any ownership interest in the business though.

    The statutory agent is the person who has agreed to accept service (mail) on behalf of the company. So if someone sues the company, they can send the complaint to the statutory agent. The statutory agent is then supposed to forward the paperwork on to the appropriate person. The statutory agent can be anyone who is a resident of Ohio. The statutory agent can also be another company, as long as they have an Ohio place of business. The statutory agent can be a shareholder - but they don't have to be.

    The best way to show who the shareholder(s) of the business is/are: who has claimed the business profits or losses on their tax returns? If you have claimed the business on Schedule C of your personal tax return, that is good evidence of you being a shareholder. If your mother has claimed the business on her personal tax return, that is good evidence of her being a shareholder. If you both claimed the business profits or losses, then either you have some tax issues (if you both claimed all profits or losses) or you are both shareholders in the percentage that you claimed the profits or losses.

    This is all assuming that you have no other corporate paperwork showing you as the sole shareholder.

    Unfortunately, you are probably going to need to talk to an attorney about your situation. If your mom continues to claim ownership, you might have to ask the court to intervene and definitively state you are the owner of the business.

    Good luck.

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  • Employer owes back pay to 4 employees close to 30K, owes close to 100k to other contractors/vendors, just rents, LLC, What to do

    Company lives pay to pay, cash on hand is close to 77 dollars when salaries, rent, insurance, ect is paid.

    Bradley’s Answer

    First thing is that the employer needs to get caught up on the employee back pay and any associated taxes. This is an area that forces many companies out of business. There are both state and federal wage laws that provide protections to employees to make sure they get paid. Minimum wage laws, as an example, not only ensure that employees get paid at least minimum wage, but allow employees to get triple damages and their attorney's fees paid. So while you might only owe each employee $5k, for example, you could end up paying them $15k plus another couple thousand in attorney's fees. You can see how quickly this can ramp up and bankrupt a company. And when you are dealing with wages and taxes, often the employer can be personally liable for these, not just the company. So these need to be taken care of first.

    After that you can worry about paying contractors and vendors, as those are liabilities of the company and not the employer - unless the employer personally signed or guaranteed any of the amounts.

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  • Should I agree to this term in a contract?

    I own a company and am looking to enter into a contract with a client. My company is incorporated in Ohio as an LLC. The client lives in another state. The client wants the contract to state that the contract law will be governed under the laws of...

    Bradley’s Answer

    Yes, you can write out a contract and have it governed by the laws of any state you choose. Except in contracts with consumers (because most states have pro-consumer protections in place that can limit what you can agree to), generally you can have the terms of a contract say whatever you want and it will be enforceable.

    I think the real question you have is whether you can avoid this provision. You have listed several important reasons why using another state other than Ohio would not be beneficial for you. Ultimately, how important is this provision to you? How hard are you willing to fight for it? And what is your bargaining power relative to the other party? If this is important to you, you might want to ask that be changed to Ohio. If you are in a strong bargaining position, or this isn't as important to the other side as it is to you, they may be willing to make the change, possibly in exchange for a concession by you on another issue. At the end of the day though, if they won't change the state to Ohio, is it a deal-breaker for you?

    Every contract is the result of a series of negotiations (even if the negotiations are one-sided, such as a credit application,the other party still had to agree to the terms). Try to negotiate that point and see what happens. You'll never get what you don't ask for.

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