Fax. 919.782.9493

The Peck Law Firm, P.A.
7511 Mourning Dove Road, Suite 104
Raleigh, NC 27615

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The decision to purchase a home, perhaps the home of your dreams, can be one of the most exciting and meaningful decisions a person or family will make. Nothing is more important to us than assisting you in making the purchase of your dream home a reality. We coordinate and mange the title transfer process, and provide advice to our clients from start to finish, not just on the day of closing. While title certification, document review, coordinating the flow of information, and managing the exchange of funds are all important responsibilities of the real estate attorney, nothing is more important to us than ensuring that our client’s “dream come true” is fully protected. As part of our commitment to outstanding service, we typically do not charge our residential real estate clients any more than the typical closing fee to provide advice and counsel regarding your transaction, and to patiently answer any questions you may have regarding the purchase or sale.

WE ARE AVAILABLE TO HELP OUR CLIENTS WITH:

• The Proper Execution and Fulfillment of the Contract
• Ensuring That Title to the Property is Marketable
• Ensuring That our client's understand thediligence process and deadlines
• Ensuring That Closing Documents Reflect the Terms of the Purchase Agreement

AS YOU PREPARE TO CLOSE ON YOUR HOME, REMEMBER THESE TIPS:

Review your contract:  We encourage our clients to contact us early to discuss and review their Offer to Purchase and Contract. Timeliness in reviewing a proposed contract can save you money and prevent problems before they occur. For example, many contracts provide a time limit for a refund of the earnest money deposit. It would be a quite unhappy experience to have an inspection turn-up a serious defect and discover you missed the refund deadline.

Inspect the property:  Know the deadlines for inspecting the property. If you are purchasing an existing home, a qualified home inspector can catch defects that could result in serious repair bills in the near future. For new construction, buyers should review with the builder the warranty and make a “punchlist” of those final touches you want to be completed by closing.

Remember homeowner’s insurance:  This is an additional closing expense which often gets overlooked until the last minute. If you are financing your purchase, you will be required to provide proof of insurance before the closing. Even if you are paying in cash, you will want to protect your investment from the day of closing.

Have your property surveyed:  Recently an attorney called about a client who was preparing to sell her home. A survey revealed that a corner of her home was actually on her neighbors lot! The legal description of her property did not reveal this defect at the time of her original closing. Now, years later, a survey showed this serious encroachment which rendered the property unmarketable. Though extreme, her neighbor could have demanded the corner of the house be removed, by bulldozer!

Your new home may well be the most important investment of your life. Assuring that our client's investment is protected and that their dream is realized is our first priority.

The market for the puchase and sale of businesses in Raleigh, the Research Triangle, and throughout the state of North Carolina is very active, but the decision to acquire or sell a corporation, LLC, or other type of company, in any type of deal structure, is one that is complex and fraught with unseen risk. With any merger or acquisition, there are business law, financial, and tax ramifications which each require the incorporation of expert analysis and evaluation. At the Peck Law Firm, we not only provide advice and counsel, we also incorporate a collaborative approach to help our clients assemble a highly qualified and effective team whose collective knowledge and experience will guide them through due diligence and risk assessment, structure a favorable deal, provide advice on tax planning issues, and negotiate the many complex details inherent in nearly all merger and acquisition deals.

At the Peck Law Firm, we work hard on behalf of our business law clients to assist in the evaluation of all aspects of a potential merger or acquisition to make certain the proposed purchase or sale is in our clients’ best interest. We understand the motivations and concerns of the various participants in a wide range of transactions, and use this understanding to achieve and deliver creative and business-oriented results for our business clients. We prepare all documentation to comply with applicable business laws and satisfy all applicable regulatory requirements. We represent our clients' best interests and work to ensure that the merger or acquisition deal is fundamentally sound and that our clients understand both the risks and benefits of a proposed deal.

WE PROVIDE

• Counsel regarding Mergers, Acquisitions, and Divestitures
• Representation of Buyers or Sellers Through all Stages
• Preparation of Acquisition Agreements, Security Instruments
• Promissory Notes, Leases, Licenses, and other legal documents
• Assistance with Franchises and Commercial Real Estate
• Management of Due Diligence; and Assistance with Financing

We understand the pressure that parties are frequently under pressure to complete a transaction quickly, and generally the staff at the Peck Law Firm can accomodate a quick turnaround time. However, we also believe our business clients should be aware that taking short cuts through the initial letter of intent phase, or through due diligence, can lead to serious strategic problems or even catastrophic financial distress. By working closely with our clients at the very outset and through every phase of a transaction, The Peck Law Firm can effectively assist you to close in a timely manner and protect significant financial interests.

Buying an Existing Business or Professional Practice

Often one business may seek to acquire another to complement or to diversify its business interests. If you are considering buying an existing business or professional practice in North Carolina, or particularly in the Raleigh or Research Triangle area markets, there are a number of actions you need to take to protect yourself before signing any documents or contracts. We will assist you in determining the appropriate legal entity, i.e. whether forming an LLC, a Corporation, or some other entity, that should buy the business and we will negotiate the terms and conditions of the sale. As part of the buying process, client's will then go through what is known as the “due diligence” process, which means inspecting the books and records of the business you intend to buy to confirm their accuracy, as well as examining liens, judgments, environmental matters, as well as other factors affecting the seller or any property that is included in the sale such as equipment, land and buildings.

Selling an Existing Business or Professional Practice

If you are considering selling an existing business or professional practice, there are a number of actions that should be taken before offering the business for sale in order to maximize the sales price and reduce problems during a pending sale. A potential seller will want to review the operational structure and personnel of the existing business or professional practice before selling. We recommend that a “business audit” be conducted on your business prior to its sale. The purpose of the audit is to determine if there are any issues that can adversely affect a sale of the business. It is always better to find out prior to a sale if there are issues that need to be corrected. We will assist you in establishing an offering price for your business and in negotiating the sale agreement. The Peck Law Firm can also assist you in your efforts to effectively market your business to qualified buyers. For both business enterprises and professional practices, we regularly work with a number of experienced business brokers who can bring qualified buyers to the table.

WHEN A SIGNATURE MAY NOT BE ENOUGH

A corporate or limited liability company signature on a letter of intent or offer to purchase may not be enough. In North Carolina, it is essential that a resolution of the board of directors or a resolution from all of the members and mangers of an LLC is also executed authorizing such conveyance.

The North Carolina Business Corporations Act, NCBCA only authorizes fundamental corporate changes if there is approval by a majority of shareholders and the board of directors. A change is fundamental if it is a merger or share exchange, a sale/disposition of substantially all assets not in the ordinary course of business, amendments to the articles of incorporation, dissolution, or revocation of dissolution proceedings. At the Peck Law Firm we will provide the guidance needed to ensure full compliance with all applicable corporate laws and that your contracts will be enforceable.

For additional information concerning Mergers and Acquisitions, please click on the following link:

Introduction to Mergers and Acquisitions

Intellectual property rights are a Bundle of exclusive or non-exclusive rights which are typically owned by the creators of both artistic and commercial works. Artistic works and performances are covered by Copyright laws These laws protect creative works, such as books, movies, music, paintings, photographs, dance, and software, and gives the copyright holder exclusive right to control reproduction or adaptation of such works for a certain period of time. (Please see our Resource Page link to the U.S. Copyright Office for general questions)

A second category is sometimes referred to as "commercial properties", as they are typically created and used for industrial or commercial purposes. A Patent may be granted for a new, useful, and non-obvious invention and gives the patent holder a right to prevent others from using the invention without a license from the inventor for a certain period of time. A Trademark or service mark is a distinctive sign, name or “mark” which is used to prevent confusion among the various products in the marketplace. Such marks generally cannot be merely descriptive of the goods or services, and the strongest marks are those which are completely new words in the language, such as “Xerox,” “Snapple,” and “Reebok" (each of which are registered trademarks.

These marks typically receive the strongest deference from the courts in enforcement actions. The rights trademark holders can also be applied to a Franchise, to protect the form of appearance, style or design of an establishment from being copied (think of the interior of a"Subway" restaurant for example). Our IP clients include many small to mid-sized businesses that have designed logos, websites, and business names that need to be protected, along with independent record labels, songwriters, authors, and musicians. We work with all of our business clients to assist in identifying and putting into place protection for the valuable IP that they have created, or will be creating.

Protecting intellectual property such as trademarks, copyrights, and trade secrets is an essential part of establishing and operating any business.

At The Peck Law Firm, P.A. we work hard to understand our clients’ business and financial goals to ensure the most beneficial type of business entity is selected. Whether you are seeking to limit personal liability or to improve your tax situation, our attorneys can guide you through the myriad of available entities and their relative benefits. Regardless of the size of the business, from a single member LLC to a multi-investor nested corporation, our attorneys are prepared to help you build the business you desire.

WE PROVIDE Choice of Entity Counseling Drafting and Filing Articles Filing Business Elections Filing Application for Employer ID # Ordering and Preparation of Company Record Books Continued Representation

CHOICE OF ENTITY

In the Raleigh and Research Triangle area, we regularly advise our clients as to the differences between an LLC and a corporation as well as the type of entity that will best serve their current and future business needs. The following is a brief list of the business entities that are available: Corporation, S-Corporation, C-Corporation, General Partnership, Limited Partnership, Limited Liability Partnership, Limited Liability Company (LLC), Non-Profit and Proprietorship. The variables that drive the determination of type of entity include: tax treatment, limitation of personal liability, perpetuity of existence, managerial responsibility, transferability of ownership, and capital contribution. We use our business law experience and knowledge regarding the pros and cons of each type of organizational structure, to assist our clients to choose an entity that is right for their business plan and goals. If you are seeking assistance with incorporating your businss, we can provide the information you need to make the right choice.

WHY S-CORPORATION TAXATION MAY BE GOOD FOR YOU?

If a client has sufficient revenues, incorporating and electing S-Corporation taxation can provide benefits not available for partnership or sole proprietorship taxation. Particularly, under S-Corporation taxation, an owner can pay himself or herself a “reasonable salary,” and the balance of profits may be distributed as a dividend. This has the potential to save a business, and its owner(s), thousands of dollars in annual social security (“self employment”) type taxes. The IRS has recently expanded tax treatment benefits to the LLC, So, now an LLC can now elect to be taxed as an S-Corporation. In Raleigh and the Research Triangle area, The Peck Law Firm has the experience, knowledge and insight to advise our clients as to whether an LLC or a corporation would best serve their current and future business needs.

OPERATIONAL MATTERS

LLC's and corportions experiencing rapid growth or decline, can often lose sight of important legal priorities, particularly in the case of contracts and agreements. Many company's in Raleigh and the Research Triangle area are expanding rapidly and are seeking to get products to market quickly. Without the right business law advice, many LLC's and corporations fail to carefully assess arrangements made with suppliers, distributors or retailers. Companies experiencing an economic slow down seek to cut costs, which sometimes includes legal counsel. In both of these instances, sound business judgment is often impaired, which can give rise to costly legal mistakes. We work closely with our clients to ensure that no matter what level of economic prosperity an LLC or corporation is experiencing, their legal rights and obligations are being protected. We also frequently review and create a variety other contracts for our business law clients, such as franchise agreements and uniform offering circulars (UFOC's), license agreements, employment contracts, non-disclosure agreements, non-compete agreements, and joint ventures.

The Peck Law Firm is dedicated to understanding our clients’ businesses and to providing legal guidance over the life of the entity. As your business grows and the competitive environment changes you can depend on The Peck Law Firm to be on your side anticipating and fulfilling all of your business law needs.

An introduction to Mergers and Acquisitions

When buying or selling a business the transaction will generally be structured either as an acquisition (by way of an asset purchase or a stock purchase) or as a merger.

Asset Purchase:  One of the easiest structures for buying a business is to purchase the seller's assets, free and clear of any and all liabilities. The purchaser is not actually buying the business entity itself, but instead will acquire the businesses name, goodwill (business relationships), equipment. Thus, an asset purchase is much like buying the seller's inventory and equipment without the necessity of being saddled with the liabilities that seller may also have.

Often, a buyer may prefer an asset purchase agreement for one or more of the following reasons:

• The buyer has the ability to acquire assets only, without assuming any liabilities of the seller. More likely, the buyer will pick and choose which assets to acquire and which liabilities to assume. For instance, the acquisition of certain intellectual property (“IP”) rights or lease rights may be central to the buyer’s desire to purchase. Acquiring such rights, however, often entails a willingness to assume certain corresponding liabilities. And, conversely, from the seller’s perspective the seller can choose which assets to sell and which to keep. For instance, it is not unusual for the seller to retain cash, certain receivables and sometimes some select IP rights.
• The buyer receives a "stepped-up" tax basis on the assets being acquired based upon the allocation of the purchase price.
• The buyer will typically retain the option but not the obligation to hire some or all of the employees of the seller's business.
• The buyer also has the ability to pick and choose which contracts to assume.

Stock Purchase:  In simple terms, a stock purchase may require only that the selling shareholders swap their stock certificates for a check from the buyer. In contrast to an asset purchase, the buyer is actually taking over the seller's entity and everything it owns and owes, and not just purchasing its assets. In essence, the buyer steps into the shoes of the selling shareholders.

• Sellers will usually prefer a stock purchase agreement because of favorable tax treatment of this type of transaction. They may be able to realize capital gains treatment on the sale of stock. This avoids "double taxation" that can result with an asset purchase where the business entity is first taxed on sales proceeds, and the shareholders are then taxed again on distributions that may then be made to them.
• The result can be a seamless change of ownership. The "business entity" may look like it is under new management but title to corporate assets and everything else can remain the same. Thus, there is a better chance of preserving the status quo. Employees can remain in place. It may not be necessary to change title to assets or assign existing contracts to a different business entity. Good will and other intangible assets remain with the seller's business.
• Buyers are wary of stock purchases because they end up assuming liabilities of the seller. Thus, a seller must anticipate that a buyer will expect some concessions. The buyer may, for example, insist on very strong indemnification language from the seller or may require that funds from the purchase may be set aside in escrow to satisfy “unforeseen liabilities.” The purchase price may also be adjusted accordingly.

Merger:  A merger is a combination of two or more business entities. It has many of the characteristics of both an asset purchase and a stock purchase. In it’s simplest form a "surviving" company will issue cash, new stock or a combination of cash and stock to shareholders of a "disappearing" company in exchange for the stock in the disappearing company. The surviving company then takes title to all the disappearing corporation's assets and liabilities, and the disappearing company ceases to exist. While mergers can proceed in various different forms depending on specific needs, objectives and circumstances, in general the following observations apply:

• A merger is the time-tested transaction vehicle for recognizing the strength of combining two or more business entities into a single venture.
• A merger can allow for the recognition of economies of scale. While employees in duplicate positions may be laid off, the intent is often to improve the bottom line by cutting overhead and increasing efficiencies.
• Tax consequences can be neutralized or deferred. Properly structured, swapping stock will not result in any taxable gain to the shareholders of either of the merging organizations.
• A merger can be a particularly useful where certain contractual relationships of the target need to be preserved in order for the buyer and seller to realize full value from the transaction.

Regardless of the structure, we will use all of our business law experience to help you to accomplish your goals.

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The information presented on this website may not reflect the most current legal developments. Further, this site may contain technical inaccuracies or typographical errors. The Peck Law Firm, P.A. periodically may change the information on this site without obligation.