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So You Signed a Non-Solicitation/Non-Complete/Non-Disclosure Agreement, Now What??

Monday, February 24th, 2020

Business clients often confuse the above terms, each of which protect business owners from a different type of harm.  I will summarize the three types of agreements below.

Non-compete agreement:

A covenant not-to-compete is an agreement whereby a party agrees not to compete against another party: 1) in a specific line of business; 2) for a definite period of time; 3) in a limited geographic area.

A non-compete agreement is usually found as part of a broader contract, such as an employment agreement or franchise agreement, and will take effect upon termination of the contract.   Maryland courts allow a covenant not-to-compete to be enforced provided it is “reasonable” in the activity it restricts, as well as in its geographic scope and duration.   A typical non-compete looks something like the following:

“Employee hereby agrees that for a period of one year following the date of termination of this Agreement for any reason, Employee shall be prohibited from acting, directly or indirectly, as an owner, manager, operator, consultant or employee of any business or business activity that is in the business of providing services similar to or competitive with Company.”

Non-disclosure agreement:

A non-disclosure, or confidentiality, agreement (“NDA”), is an agreement whereby a party pledges not to disclose the confidential and proprietary information of another party.  NDA’s are commonly used to protect confidential information not generally made available to the public such as trade secrets, customer lists, business and marketing plans and strategy, and financial information, so that such information does not fall into the hands of competitors or even the public at large.  NDA’s can be found in many employment and independent contractor agreements, as well as agreements where businesses are performing due diligence on one another prior to some type of relationship commencing.

Unlike the situation where covenants not-to-compete must be reasonable in all areas, non-disclosure agreements will be enforced by Maryland courts unless the person or company that is alleged to have violated the NDA is able to show that it learned of the confidential information from an independent, outside source.  Whatsmore, an NDA need not contain any geographic or time restrictions in order to be valid and enforceable.

A typical NDA will look like this:

“Employee acknowledges that Company may, in the course of Employee’s employment, provide Employee access to Company’s trade secrets, customer lists, business and marketing plans, financial information, and other confidential information related to the business of Company, including access to Company’s Employment Manual (the “Manual”).  Employee agrees to retain all such information as confidential and may not use such confidential information on his or her own behalf or disclose such confidential information to any third party during or at any time after the term of Employee’s employment.”

Non-solicitation agreement:

A non-solicitation agreement is an agreement whereby a party pledges not to solicit the clients and customers of another party.  Non-solicitation agreements are generally found in employment and independent contractor agreements, as well as vendor arrangements where one party is granted access to the clients list of another party.

Like an NDA, a non-solicitation agreement need not contain any geographic or time restrictions in order to be valid and enforceable in Maryland.  A common form of non-solicitation agreement follows:

“Employee hereby agrees that for a period of one year following the date of termination of this Agreement for any reason, Employee shall be prohibited from soliciting business from, or performing services for, or inducing or attempting to induce, any customer or client of Company, its subsidiaries or affiliates, to cease doing business with Company, or in any way interfering with the relationship between Company and any customer or client of Company.”

Many business contracts will contain one or more of the above agreements.  It is therefore important to be able to distinguish among them, and draft contracts that are specific to your business needs.  Contact a business lawyer for advice.

 

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Buy-Sell Provisions in Corporate Shareholder and LLC Operating Agreements

Monday, February 24th, 2020

I am often asked by clients who own their own businesses how to address the circumstances surrounding the transfer of ownership if one of the owners dies, becomes disabled, or whose employment in the business is terminated for-cause?  The answer is through the use of language addressing buy-sell situations that are included in an Operating or Shareholder Agreement.

A carefully drafted buy-sell provision will address the buyout of a deceased or disabled owner’s share of the business, usually through the use of the proceeds of life and disability insurance policies taken out by the business on the lives of the owners.  A buy-sell provision will also address termination of an owner’s employment with the business for-cause.  A sample buy-sell paragraph will read something like the following:

“Sale of Shares on Death, Disability or Termination of Employment.  If, during the term of this Agreement: a) a Shareholder dies or becomes permanently disabled (meaning the Shareholder becomes unable to carry out his duties as a Director or Officer of the Company for a period of 90 consecutive days or more); or b) a Shareholder who is also an employee of the Company has his or her employment terminated by Company for-cause, then the Company shall buy, and the Shareholder, his estate or the named representative of the Shareholder shall sell, the Shares of said Shareholder to the Company.”

A buy-sell provision will go on to address how to arrive at the price at which an owner’s shares may be sold for, as well as whether such price will vary depending on the circumstances surrounding the owner’s departure from the business.

A well-drafted buy-sell provision will also address an owner’s potential divorce, so as to prevent remaining owners from having to own and operate the business with the spouse or other family member of a former owner.

Every LLC Operating Agreement and Corporate Shareholder Agreement should address the buy-sell provisions referenced above.  This will go a long way towards solving many potential disputes involving circumstances associated with the transfer of ownership of a business before they arise.

 

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Post Judgment Oral Examination of a Judgment Debtor

Monday, October 29th, 2018

Following up on my earlier blog posts that included post-judgment interrogatories and requests for documents, a judgment holder can also request that the debtor appear before a court-appointed examiner and answer questions under oath from the judgment holder’s counsel.  Failure of the Debtor to appear for the exam or answer the questions truthfully could lead to imprisonment of the Debtor.

Here is a sample of some of the questions I ask in an oral examination:

Background

  1. Please provide your full name, including aliases.
  2. What is your soc Sec No.
  3. What is your Driver’s License Number.
  4. What is your date of birth.
  5. How many children do you have?
  6. What are the names of your children and their ages?
  7. Provide your children’s social security numbers.
  8. What is your current home telephone.
  9. What is your current cell phone numbers?
  10. Provide all email addresses you have used during the past 3 years?
  11. Provide the name, address and phone number for your 3 closest relatives not living with you?

Residence

  1. What is your current residence as of this morning?
  2. Do you own or rent?
  3. Are you current on your mortgage payments?
  4. Name all other real property owned by you or your spouse jointly or individually.
  5. Name all other real property rented by you or your spouse jointly or individually.
  6. [If renting, give name/address/phone number of the estate agent/landlord.]
  7. Have you recently moved?
  8. Name all addresses where you and/or your spouse have slept over the past 90 days.
  9. Provide all of your previous addresses utilized by you or your spouse over the past 7 years.
  10. Is your current residence up for sale?
  11. How much are you asking for it?
  12. How much is owed on it?
  13. Are you planning on moving?
  14. Are you in the process of purchasing or renting a new residence?
  15. If so, what will be your new address?
  16. How much did the new house cost?
  17. Provide the names of all persons currently living in the same location with you. 

Vehicles

  1. Name all motor vehicles owned by you or your spouse.
  2. Owned or leased?
  3. Year/make/model/condition?  Registration number?  License plate number?
  4. Are the vehicles owned outright or are they financed?
  5. If so by whom?
  6. Are you in the process of buying a motor vehicle?
  7. What are the vehicles worth today?
  1. List the automobiles purchased by you or your spouse within the past 7 years.
  2. Do you or your spouse own a boat? If so, follow up.

I also ask detailed questions about current employment and employment history, bank accounts, general financial questions dealing with stocks and other investments, IRAs, retirement, life insurance, wages and income, tax returns, and any other sources of income or assets.

 

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Post Judgment Request for Documents

Monday, October 29th, 2018

Following up on my earlier blog post that included post-judgment Interrogatories, whereby a judgment holder can require a debtor to answer certain questions about the debtor’s assets and wages, a judgment holder can also request that the debtor turn over documents.

Here is a sample of some of the documents I request.

  1. Defendant’s federal and state income tax returns for the years ____, ____, and ____, including any Schedules thereto, whether such returns were individually filed or jointly filed.
  2. For all automobiles which Defendant has any ownership interest, exercise control or possession or have any financial responsibility for, provide the following documents for each vehicle:
    1. Copies of the official vehicle Titles;
    2. Copies of the Vehicle Registration document;
    3. Any documents showing the Tag number;
    4. Any documents showing the VIN number;
    5. Copies of loan statements for past 12 months;
    6. Copies of records indicating payments made during the last 12 months; and,
    7. Copies of all loan agreements and notes.
  3. All documents concerning payments, loans, exchanges, sales, distributions or transfers of cash or assets (including automobiles, boats, jewelry, electronics, etc.) with value of $2,000 or greater made by Defendant since __________ through the present.
  4. All documents and bank account statements from any financial institution where Defendant has, or had within the past 3 years, an account.
  5. All documents and brokerage account statements from any bank, financial institution, or brokerage firm, where Defendant has, or had within the past 3 years, a brokerage or stock account.
  6. For any real estate owned by Defendant either individually or jointly with another person or entity at any time since __________, provide all documents related thereto, including any rental/lease agreements, rental receipts, deeds, purchase contracts, mortgage contracts, mortgage notes, and mortgage statements.
  7. For any income earned by Defendant during the past 3 years, provide copies of documents related thereto, including pay stubs, checks, receipts, statements, work orders, bank documents, including deposit slips and wire transfers, related to any payment to Defendant.
  8. For any business entity, corporation, company, partnership, (“Entity”) for which Defendant has or had an ownership interest or management control at any time during the past 3 years, provide all documents concerning any bank or investment account of the Entity, all documents concerning any loans or disbursement made by the Entity to Defendant or one of your family members, and all financial statements including general ledgers, accounts receivable, accounts payable, income statements, balance sheets and profit and loss statements concerning the Entity.
  9. For any Entity for which Defendant has or had an ownership interest or management control at any time during the past 3 years, provide copies of the Articles of Incorporation or Organization, By Laws, Shareholder Agreement, Operating Agreement, Partnership Agreement and Minutes of any Board or Shareholder meetings.
  10. Provide all documents concerning any financial agreements, transactions or loans made between Defendant and any other individuals or entities during the past 3 years.

 

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Reviewing a Commercial Lease

Monday, October 29th, 2018

When reviewing a commercial lease on behalf of a business tenant client, my goal is twofold: to obtain the most favorable terms possible for my client in the short term, while also protecting the client’s long term interests by limiting risk and personal exposure in the event of an unforeseen event that hurts or derails the business.

These are some of the issues I look to in my review:

  1. Make sure all lease terms mirror the terms found in the Letter of Intent executed by my client and the landlord.
  2. Attempt to obtain an abatement of rent for a period of a minimum of 60 days, to as much as 180 days if possible. Regardless of the rent abatement, at minimum we also want to make sure that the rent commencement date, which is the first date rent is due, is pushed far enough out to make sure we are open and operating at that time.
  3. Attempt to obtain tenant improvement money, which is money paid by the landlord to my tenant client and which the tenant must use to build out and renovate the premises. The amount of any TI money can fluctuate dramatically depending on how much work the space needs, and the business of the tenant.
  4. Understand whether we are dealing with a gross (“all-in”) lease where the tenant makes one monthly payment including everything due, or a triple net lease (“NNN”) where rent and CAM fees and taxes and insurance are broken out separately, or a hybrid of the two? Oftentimes a client can be confused about what the monthly payments actually are and not understand terms like additional rent, operating costs, and CAM fees.
  5. What about the HVAC unit, which in many instances can be a costly repair or replacement in the event the tenant takes on the responsibility to maintain and replace the HVAC if it breaks down. I recommend an inspection of the HVAC prior to signing the lease, as well as some warranty period where the landlord guarantees the operation of the HVAC.
  6. Is the tenant free to sublease a portion of the premises without landlord interference?
  7. Is there a liquidated damages clause in the event the lease is terminated early? This would mean that the tenant is on the hook for the entire remaining term for rent and all other expenses due and owing in the event of default.
  8. If this is a retail establishment, does my client tenant have exclusivity? In other words, is the landlord prohibited from permitting the operation of another wings place in the same plaza that my client who sells wings is in?
  9. Finally, there is most likely a personal guaranty.  Do spouses and even silent partners have to sign it? Is there a cap on it or is it unlimited?  I normally try to negotiate some type of cap on the guaranty.  Six months to one year’s worth of rent is oftentimes a manageable “out” for a tenant looking to get out from under a lease for a dying business.

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Forming a Benefit Corporation/LLC in Maryland

Monday, October 29th, 2018

A Benefit corporation/LLC is formed to create a public benefit, in addition to creating profit for its shareholders. In Maryland, a company can be recognized by the state as a benefit corporation/LLC by stating in its corporate charter that it is a benefit corporation/LLC, getting certified as providing a public benefit, taking into consideration more than just profit, and submitting an annual benefit report to each stockholder or member.

How to Form a Benefit Corporation/LLC with Maryland SDAT:

1.  Draft or amend existing Articles of Incorporation/Organization by making reference to the election to be a benefits corporation/LLC at the top of the charter document, or the amendment to the charter document;

2.  State in the Articles or the amendment to the Articles that the corporation/LLC is a benefit corporation/LLC and has the purpose to create a general public benefit, defined as a “material, positive impact on society and the environment, as measured by a third-party standard, through activities that promote a combination of specific public benefits.”

3.  A business has the option of stating in the Articles or the amendment to the Articles a specific public benefit that the business seeks to provide, for example:

    • providing individuals or communities with beneficial products or services;
    • promoting economic opportunity for individuals or communities beyond the creation of jobs in the normal course of business;
    • preserving the environment;
    • improving human health;
    • promoting the arts, sciences, or advancement of knowledge;
    • increasing the flow of capital to entities with a public benefit purpose; or
    • the accomplishment of any other particular benefit for society or the environment

 

4.  A business may also change its name to “xyz, Benefit corporation/LLC” or “xyz, A Benefit corporation/LLC”.

5.  Also, the company must deliver an annual benefit report to each stockholder/member, which must include:

  • the ways the a general public benefit was pursued and to what extent one was created;
  • the ways the any specific public benefit was pursued and to what extent one was created;
  • any circumstances that hindered the creation of the public benefit; and
  • an assessment of the societal and environmental performance of the benefit corporation prepared in accordance with a third-party standard applied consistently with the prior year’s benefit report or accompanied by an explanation of the reasons for any inconsistent application.

The report must be delivered by the company to each stockholder/member within 120 days of the end of each fiscal year, and must publish it on the company’s public website.

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Subcontracting Agreements / Master Agreements

Friday, October 26th, 2018

How do business owners handle subcontracting agreements when the subcontractor may work on several different projects for several different clients of the Contractor, simultaneously or over a period of years?  The answer is to tweak the standard Subcontractor Agreement to make it a “master” agreement, so that it covers not just the first project, but future projects as well.  Here is some language I add:

WHEREAS, Contractor and Subcontractor (the “Parties”) agree that for mutually agreed upon Clients, Contractor may choose to utilize Subcontractor with respect to certain Services specifically set forth herein and in any Statement of Work attached to this Agreement;

WHEREAS, Contractor and Subcontractor desire to enter into a master agreement that sets forth the terms and conditions pursuant to which Contractor and Subcontractor shall, for mutually agreed upon Clients, provide certain Services to one or more of Contractor’s clients;

Statement of Work.  The parties will memorialize the Subcontractor work in the attached Statement of Work (a “Statement of Work” or “SOW”) that is entered into between the parties and is incorporated into and made a part of this Agreement.  Contractor may issue a purchase order (“Purchase Order”) with the mutually agreed upon and signed Statement of Work attached for all work to be performed by Subcontractor under this Agreement.  A SOW, if and only to the extent then followed by a Purchase Order, constitutes the only authorization for Subcontractor to take any action that will result in any expense to Contractor.  Any SOW shall be substantially in the form of the representative SOW attached as Exhibit A to this Agreement and shall reference this Agreement and shall specify: (a) the overall project description and Subcontractor’s requirements for the services; (b) the services to be performed, including materials to be provided, by Subcontractor; (c) the charges or billing rates and payment milestones for the services performed by Subcontractor; (d) the location(s) where the services are to be performed;  (e) the acceptance criteria and warranty provisions for such work; (f) anticipated start and finish dates; and (g) any other information and/or associated terms and conditions that may be required by the circumstances of a particular Statement of Work.

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Collecting on a Judgment in Maryland – Post Judgment Interrogatories

Friday, October 26th, 2018

A common misconception that many business owners have about litigating a dispute is the belief that just because a party wins at trial, the money won in the judgment automatically is transferred to the winner.  Usually, that is far from the case.  While it is never easy to go to trial and win a money judgment against another party, sometimes winning is actually easier than collecting on the money judgment won.  A judgment is simply a piece of paper from the Court stating who won and who lost.  However, if the losing party is not financially ready and willing to pay you, a judgment holder has to be prepared to continue to work. Maryland law permits a judgment holder to take certain steps to collect.  One of these steps is the use of post-judgment interrogatories, which are questions the winner may ask of the losing party, known as the debtor, about the amount and location of his/her/its wages, assets, bank accounts and property.  Here is a sample of some of the questions I ask.  Once the amount and location of the debtor’s assets are revealed, an experienced collections attorney will be able to pursue the amounts you are owed.

  1. Provide the address and fair market value of all real estate owned by Defendant either individually or jointly with another person or entity.
  2. Provide Defendant’s federal and state income tax returns for the years x, y and z, including any Schedules thereto, whether such returns were filed individually or jointly.
  3. Detail Defendant’s net worth, including all such assets owned jointly.
  4. Provide the year, make, model, mileage, blue book value, and VIN number of all vehicles owned by Defendant.
  5. Detail the name and address of each financial institution where Defendant has an account, including the routing number and the account number for each.
  6. Detail the balances for each account detailed in your response to Interrogatory #5.
  7. Provide Defendant’s bank statements for each account specified in your response to Interrogatories #5 from x through the present.
  8. Detail all other assets owned by Defendant not yet mentioned and the fair market value for each.
  9. Detail whether Defendant has disposed of or transferred any asset within the last 180 days. If yes, give the name and address of each person or entity who received any asset and describe each asset.
  10. Detail any ownership interest Defendant has in any corporation, partnership, or limited liability company. In so doing, identify the name of the corporation, partnership, or limited liability company, the state of incorporation or organization, the amount or percentage of the ownership interest, and the fair market value of the ownership interest.
  11. For any corporation, partnership or limited liability company named in your response to Interrogatory #10, provide any shareholder, partnership or operating agreement to which Defendant is a party.
  12. Detail all income, wages, or other compensation of any kind received by Defendant within the last 180 days.

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Sample Confessed Judgment Note for Commercial Use

Thursday, October 23rd, 2014

CONFESSED JUDGMENT NOTE

[SAMPLE]

 Amount –

Date –

            The undersigned __________________________ (hereinafter referred to as “Maker”) hereby promises to pay ________________________________(“______________”), located at [Address], the sum of ___________________ ($_______________) to resolve a dispute over monies owed to ______________________ related to _________________________________.

 NOW, THEREFORE, in consideration of the foregoing, the covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Maker hereby agrees as follows:

 1.   Payment by Maker Upon Execution of this Note. Maker agrees to pay the sum of $_________________ to ____________________ upon execution of this Note.

 2.   Balance of Sum to be Paid by Maker. Maker agrees to pay the balance owed of the Sum in the amount of $_______________ on or before _________________ (the “Due Date”).  

 3.   Default. Maker shall be in default of this Note should Maker fail to make any payment due to ______________ under this Note, or fail to pay in full all amounts owed under this Note, on or before the Due Date. Upon default, the Entire Sum owed to ______________ of $__________________ shall be then immediately due and payable by Maker, less any amounts previously paid by Maker to _______________ in settlement of this matter.

 4.     Prepayment. Maker may prepay the principal amount outstanding in whole or in part at any time without penalty. 

5.  Confession of Judgment. Should Maker default under this Note, Maker appoints _______________________ as its duly authorized attorney-in-fact with authority, in its name, place, and stead, to confess judgment in the office of the clerk of any Court of any city or county in the state of ____________________ against Maker, in the amount of the $________________, less any amounts previously paid by Maker to _________________ in settlement of this matter.

 6.  Waiver. Maker waives presentment and demand of payment. The failure of ______________________ to exercise any of its rights hereunder in any instance shall not constitute a waiver thereof in that or any other instance. Any notice to Maker shall be given by mailing such notice by first class mail, postage prepaid, addressed to Maker at ____________________________________, or to such other address as Maker may designate by written notice to _____________________. Notice of non-payment is not required by the terms of this Note.

 7.  Costs and Expenses. Maker shall pay __________________ for all costs and expenses, including, but not limited to filing fees, investigative costs and reasonable pre- and post-judgment attorney fees, incurred by __________________ in enforcing and collecting this Note.

 8.  Obligations and Benefits. The obligations and benefits of this Note shall be binding upon and inure to the benefit of the Maker, _____________________ and their respective heirs, successors and assigns.

MAKER

____________________________             

By: _________________________

Title: ________________________

Date: ________________________

 

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Here is a Sample Document for a Corporate Supplier Diversity Program

Thursday, October 23rd, 2014

COMPANY NAME

Supplier Diversity Program

COMPANY NAME takes its social and environmental responsibilities seriously. A good example is our strong and longstanding commitment to a diverse supplier base.

The businesses we categorize as diverse suppliers are Minority-Owned, Women-Owned, Veteran-Owned, and Service-Disabled Veteran-Owned Small Businesses, as well as businesses located in Historically Underutilized Business regions (HUBZone) and Small Disadvantaged Businesses (SDB).

A business joins our Supplier Diversity Program by contacting _________ at ______________________ and requesting an application. Following a verification and screening process to ensure a good fit between supplier strengths and capabilities and our current and future requirements, we review the supplier information. The business then becomes a potential supplier who may be used in the procurement process as business needs dictate.

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