BUSINESS LAW, CONTRACTS & BUY-SELL AGREEMENTS
We help create new businesses and deal with the issues that arise in existing businesses. This includes interactions and agreements with partners, investors, the public, other companies, employees and the government. We counsel clients on entity formation and structure, and governance. We counsel on intellectual property, property taxes, sales and manufacturing agreements, employment matters, bankruptcy issues, and other matters. We also do transactional work, including business sales, asset purchases, stock purchases, and real estate contracts.
Many times we are hired for the purpose of avoiding future litigation. We use our litigation experience when structuring transactions and drafting contracts to minimize exposure to future litigation. This sort of strategic legal maneuvering can end up saving the company large sums of money.
Every business with multiple owners should have a buy-sell agreement. It provides a plan for separating the owners if an irreconcilable dispute arises between them. It provides how and when an owner can sell an ownership interest (whether it be represented by shares of common stock, membership interests, partnership interests or other measures), who can buy an ownership interest, at what price the ownership interest will sell, and how the purchase price is to be paid. The buy-sell agreement should provide a formula for valuing shares or interest to ensure a fair price for a departing owner. It is best to sign a buy-sell agreement before the business is started, but if you failed to do so, it is not too late. Without a buy-sell, angry partners usually end up in costly litigation and the decisions are left to a judge or jury that knows nothing about your business.
BUSINESS & COMMERCIAL LITIGATION
The Hill Law Firm, PLLC has been litigating business and commercial cases for over 28 years. We have appeared in state and federal courts, and before arbitration panels and administrative agencies. We will go to court for you and prepare you for all that comes with litigation. We will stand by your side and pro-actively advocate for you.
We will also counsel you and your executives, employees and representatives to determine preventive measures to minimize litigation risks. There is no substitute for careful and close review of contracts, policies and governing documents. We have the experience and attention to detail to create and implement effective and efficient risk management plans at your company.
We have had success in prosecuting and defending these and other litigation matters:
Breach of Contract Actions – purchase and sale agreements, contracts of sale, warranties, service agreements, and misrepresentations and omissions
Defamation and Deceptive Trade Practices Act Violations – consumer fraud, breach of warranty, unconscionable actions and tie-in statutes
Shareholder Disputes and Derivative Litigation – governance issues, fraud and fiduciary duty issues and derivative issues: self-dealing, corporate waste and oppression
Employment Disputes – trade secrets, confidential information, non-disclosure, non-solicit and non-compete provisions
Trademark/Copyright Disputes and Infringement Claims – cease and desist letters and statutory and common law causes of action
Construction Disputes – construction contracts, defects and trust account issues
Property Tax Disputes – assessment appeals to Appraisal Review Boards and courts
Real Estate Disputes – ventures, partnerships, sale contracts, restrictive covenants and declarations, homeowners associations, and trespass or encroachment
Foreclosures and Fraudulent Transfers – judicial and private foreclosures and litigation regarding the same, including claims under the Uniform Fraudulent Transfer Act and the Liz Pendens statute
LETTER OF INTENT / PURCHASE & SALE TRANSACTIONS / AGREEMENTS
The letter of intent is an important part of a purchase or sale transaction. It forms the obligations and rights during the due diligence period. It is important to make sure the buyer and seller are on the same page when it comes to what will be provided and allowed in due diligence.
After due diligence regarding a purchase proposal comes to a successful conclusion, it’s time to move into the final–and very important–negotiations that precede a sale closing. Now it’s time to reach consensus regarding price, payment structure, price allocation (and the resulting tax implications), and all the other details that comprise the final deal. Here are some examples of the issues involved: assets, liabilities, closing date, price, adjustments, seller agreements, payment terms, security agreements, inventory, accounts receivable, seller’s representations and warranties, buyer’s representations and warranties, seller’s covenants, employee termination clause, post-closing rights and obligations, default provisions, business transfer agreements, participation or absence of brokers, and obligation for fees. These items and more are negotiated and put into a legal document. Again, the task is to foresee and identify the issues and solve them before the purchase or sale if possible, to avoid future litigation and risk exposure.
REAL ESTATE LITIGATION & FORECLOSURE
The practice of commercial real estate litigation concerns income-producing real estate properties and projects of a wide variety, including office buildings, retail centers, apartment buildings and condominium developments, hotels, and industrial and specialty properties. Litigation can arise in any aspect of these projects from acquisition and financing to development and construction to management and leasing. The disputes can be as varied as the parties and the projects themselves.
Disputes regularly arise out of the often-complicated contracts of the various parties with interests in the property. Tort claims of many kinds may be asserted, from broad common law claims, such as fraud and tortious interference, to more real estate-specific claims, such as trespass, encroachment, and nuisance. Equitable considerations are often present due to the unique nature of real property rights. Special insurance rights, such as title and builder’s risk policies, may be implicated. We handle real estate related disputes for property owners, developers, investors, tenants, lenders, joint ventures and public-private partnerships, and many other parties, in and out of court.
Foreclosure is a legal process where a lender attempts to recover the balance of a loan from a borrower who has stopped making payments to the lender by forcing the sale of the asset used as the collateral for the loan. Foreclosure by power of sale, also called nonjudicial foreclosure, is authorized by a deed of trust in Texas. This process involves the sale of the property by the mortgage holder without court supervision. This process is generally much faster and cheaper than foreclosure by judicial sale. As in judicial sale, the mortgage holder and other lien holders are respectively first and second claimants to the proceeds from the sale.
Foreclosures can result in litigation, so it is important that it be a last resort and done properly. Creditors and owners can make claims of fraudulent transfer regarding sales, so it is not an easy prospect. We have handled foreclosures, as well as defended fraudulent transfer claims arising out of foreclosures.
SHAREHOLDER, PARTNERSHIP & COMPANY AGREEMENTS
Whether you call it a Shareholder Agreement, a Partnership Agreement or a Company Agreement, if you work with others in the operation of your business, you need a plan in place regarding management, day-to-day operations, death or disability, divorce or retirement. We help identify risks and draft agreements that ensure you are protected and your company continues to operate and ride the storms that owning a business brings.
ESTATE PLANNING AND PROBATE
The Hill Law Firm actively advises clients in the area of estate planning.
Our services include:
Preparations of wills
Preparation of testamentary trusts
Statutory durable powers of attorney
Preparation of lifetime trusts and family limited partnerships
Preparation of medical powers of attorney and directives to physicians
Planning for minimization of estate taxes
Business succession planning and all aspects of gifting and asset disposition.
We have experience with asset protection planning and work with clients on the implementation of family limited partnerships and irrevocable trusts.
Finally, we assist clients in the probate of wills, the administration of trusts and estates and guardianship procedures.
TRADEMARKS & COPYRIGHTS
Some people confuse patents, copyrights, and trademarks. Although there may be some similarities among these kinds of intellectual property protection, they are different and serve different purposes.
A copyright protects words fixed in a tangible form from being copied, but it does not protect the idea or subject matter of the writing. Copyright law does not protect a bare phrase, slogan, or trade name.
A trademark is a word, name, symbol or device which is used in trade with goods to indicate the source of the goods and to distinguish them from the goods of others. A “servicemark” is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product.
We handle trademark and copyright applications all the time, as well as enforcement of copyrights and trademarks. With the rise of the internet, these rights are infringed upon every day. We will come up with a plan that suits you best for protecting your intellectual property at a price you can afford. Your rights and recoveries vary depending on whether you have properly filed and obtained registration of your copyrights and trademarks.
Understanding and dealing with franchising legal considerations is essential for potential franchisees. The two main franchising legal documents are:
THE DISCLOSURE DOCUMENT (also known as the FDD) The purpose of the FDD is to provide prospective franchisees with information about the franchisor, the franchise system and the agreements they will need to sign so that they can make an informed decision. In addition to the disclosure part of the document, the FDD includes the actual franchise agreement as well as other agreements the franchisee will be required to sign, along with the franchisor’s financial statements. The FDD is designed to give you some of the information you need in order to make an informed decision about investing in a particular franchise. By law, a franchisor cannot sell a franchise until the franchisor has presented the prospective franchisee with a Disclosure Document. In fact, 14 states require franchisors to register their FDDs with the state or to notify them that they will offer franchises before they begin to conduct any franchising activity in the state. The FDD includes 23 items of disclosure,
THE FRANCHISE AGREEMENT The franchise agreement the legal, written document that governs the relationship and specifies the terms of the franchise purchase. A prospective franchisee should closely review the franchise agreement and consult with a professional advisor, like an attorney or an accountant, before making a final decision.
There are also laws outside of the franchise agreement that must be understood before opening a franchise. Many individual states have defined franchising laws that go beyond that of the federal government. Some have state registration fees and some require registration of the Franchise Disclosure Document.
We have drafted Franchise Disclosure Documents, Franchise Agreements and Franchise Policy and Procedure Manuals and stand ready to help you begin a franchise, review an offering you are considering, or look at exit strategies under your agreement.
ARBITRATION & MEDIATION
Mediation is an informal process in which parties with a dispute, assisted by a neutral and impartial third party, attempt to reach a voluntary, negotiated resolution. The mediator will facilitate the communication process and will assist you in making your own decisions to settle your differences. You may have a lawyer present to give you legal advice throughout the mediation process.
Mediation allows the parties involved to control the outcome of their dispute before resorting to the courts to render an outcome. Mediation is about compromise.
Bob holds the Certificate of Completion of Mediation Training in accordance with Section 154.052(a) of the Texas Civil Practices and Remedies Code. Bob has training in Alternative Dispute Resolution, including Mediation, and welcomes the opportunity to help you by representing you in the mediation of a dispute, or by acting as a mediator.
Arbitration is a legal process for resolving a dispute without resorting to the court system. In arbitration, the parties with a dispute refer it to an arbitrator or panel of arbitrators for resolution. The process includes a presentation by each side to support their claims or defenses, and legal arguments. The third party arbitrator reviews the presentations and renders an opinion. The opinion can be advisory or binding depending on the agreement. Arbitration clauses are popping up in all types of contracts these days. If you need representation in an arbitration proceeding or are looking for a lawyer to serve as an arbitrator, Bob has experience in arbitrations before the American Arbitration Association and the National Association of Securities Dealers, now known as the Financial Industry Regulatory Authority.