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Category: llc

Business Ownership Deals (Part 6 of Series): How Many Different Attorneys Need To Be Involved?

Posted on May 22, 2024May 22, 2024 by g83js92js91
Categories: attorney, Business Law & Contracts, lawyers, legal assistance, limited liability company, llc

bigstock Group of Business Talking in a 428578823The “owners” of a Limited Liability Company are traditionally referred to by attorneys as the LLC’s “Members”. It’s important to realize that (with some variation from state to state) there can be “Members” but also what may be referred to as “Economic Interest Owners”, and those are not the same thing. However, for the rest of this article and related articles, we’re just going to use the terms “Member” and “Owner” as synonyms, and Owner is going to mean someone who has full rights in the Company (mainly meaning having voting and economic rights).

A very common question we get asked at our law firm of McGrath and Spielberger is “What do I need to do to add an owner to my company?” The answer to that exact question is similar to the related question of “How do we transfer the ownership interests of a Member who is leaving the LLC?”

The process and legal mechanics of changes to business ownership are largely discussed in the first 5 parts of this series. In this article, we’ll focus on questions such as the following.

  1.   Can (or should) an attorney represent both a buyer and a seller?
  2.   Can an attorney serve in a neutral role, essentially working on the transaction without representing a particular party?
  3.   Does each party involved in the deal need their own lawyer / law firm?
  4.   Can the same attorney / law firm represent the LLC and also give advice to individual members?

As is the case in most things “legal”, the devil is in the details, “it depends”, and “changing one fact about the situation may change the answers”. Having said that, here’s how it generally works, based largely on the professional regulations which apply to lawyers (which differ somewhat from state to state and which are typically called the “Rules of Professional Conduct”).

  1. Can (or should) an attorney represent both a buyer and a seller? NO. A single lawyer / law firm should not, and usually could not, represent the buyer and the seller.
  2. Can an attorney serve in a neutral role, essentially working on the transaction without representing a particular party? YES. In fact, this is an underutilized scenario. Realistically, this can be a bit tricky or even awkward, but in many instances this works just fine and can save everyone significant time and money.
  3. Does each party involved in the deal need their own lawyer / law firm? NO in the sense that nobody “has” to have an attorney at all (unless perhaps the Operating Agreement says otherwise). NO in the sense that a single attorney can usually represent parties who are aligned / have common interests. YES in the sense that an attorney should not, and typically could not, represent parties who have opposing interests (even if there is no “dispute”).
  4. Can the same attorney / law firm represent the LLC and also give advice to individual members? YES, NO, MAYBE? The answer to this one is similar to (C) above. Many non-lawyers (and even some lawyers) may not always clearly grasp that “representing someone” and “giving advice” are essentially the same thing. For example, this is not terribly uncommon:
    • LLC Member: “Hey Lawyer, I realize you don’t represent me, but can you just tell me if anything in this proposed Membership Interest Transfer Agreement is unfair to me?”
    • Lawyer: “I’m sorry, I can’t give you that advice (which would more or less make you my client, or at least blur that line), since I represent a different party in this situation, whose interests may not completely align with yours.”

    On the other hand, a lawyer typically would be allowed to represent (for example) the LLC itself and aligned owners, in particular owners who are not buying or selling. There are other combinations of parties who could be represented by the same lawyer in the same transaction / situation.

Another important aspect of this (not further explored here) is a “waiver of conflicts of interest”. In a high level sense, parties – to a certain extent – can waive some conflicts of interest or potential conflicts of interest. Doing so may allow a single attorney / single law firm to represent multiple parties when that perhaps could not happen without the conflict of interest waiver by those parties.

These sorts of LLC transaction issues are commonly dealt with by business law attorneys but can be tricky. Paying attention to these details, being careful, and planning ahead gets the best results for clients, which is what we do here at McGrath & Spielberger.

If you’d like assistance with business compliance services, please click here: https://mcgrathspielberger.com/business-compliance-services/.

Posted in attorney, Business Law & Contracts, lawyers, legal assistance, limited liability company, llc

Business Ownership Deals: Buying And Selling (Transferring) Membership Interests In LLCs – Part 5, Filings With The Secretary Of State

Posted on April 29, 2024July 9, 2024 by g83js92js91
Categories: Business Law & Contracts, business owners, business partners, limited liability company, llc

bigstock Businessman And Businesswoman 471976647

A very common question we get asked at our law firm of McGrath and Spielberger is “What do I need to do to add an owner to my company?” The answer to that exact question is similar to the related question of “How do we transfer the ownership interests of a Member who is leaving the LLC?” Of course, you can also have a situation in which a current Member is only transferring or selling some of that Member’s interests in the company.

This Part 5 of our ongoing series focuses on the filings that can or should be made with the Secretary of State as a result of a change in ownership / membership. See Part 1 of this series for a general overview of sale / purchase / transfer of company membership interests and the legal process, Part 2 for more information on the Purchase and Sale Agreement / Membership Interest Transfer Agreement, Part 3 regarding “Resolution” which should be a part of the membership interest (ownership) transfer process, and Part 4 for important information about Operating Agreement issues.

A transfer of membership / ownership interests in an LLC can, and sometimes should, result in new filings with the Secretary of State. The most common change, but not necessarily the only one, would be made by filing an Amendment to Articles of Organization. That Amendment could identify the changes in ownership structure. Similar information would be contained in the next-filed Annual Report, at least in states like North Carolina which require your typical limited liability company to file such reports.

Whether such an Amendment to Articles of Organization should be filed – and what exactly it should say – will depend on each specific circumstance. An Amendment document on file with the Secretary of State would be evidence of what information the Amendment contains.

An example of another appropriate filing with the Secretary of State would be for the LLC’s Registered Agent. (Click here for an explanation of Registered Agents.) If the Registered Agent has been an outgoing LLC Member, it would almost certainly be preferable to change the identity of the Registered Agent. That change is made by filing documentation with the Secretary of State, and of course the new Registered Agent (which could be our law firm, if the company is located in the Carolinas) has to have given permission.

These sorts of LLC filings are commonly worked on by business law attorneys. However, attorneys need to pay attention and have their brains and skill sets engaged even when performing straightforward work. Paying attention gets the best results for clients, which is what we do here at McGrath & Spielberger.

If you’d like assistance with business compliance services, please click here: https://mcgrathspielberger.com/business-compliance-services/.

Posted in Business Law & Contracts, business owners, business partners, limited liability company, llc

Business Ownership Deals: Buying And Selling (Transferring) Membership Interests In LLCs (Part 2)

Posted on March 4, 2024March 4, 2024 by g83js92js91
Categories: Business Law & Contracts, business owners, business partners, limited liability company, llc

The Purchase / Sale / Transfer Agreement Itself

Big Large White And Black Sign On Brick Wall Under New Managemen

A very common question we get asked at our law firm of McGrath and Spielberger is “What do I need to do to add an owner to my company?” The answer to that exact question is similar to the related question of “How do we transfer the ownership interests of a Member who is leaving the LLC?” Of course, you can also have a situation in which a current Member is only transferring or selling some of that Member’s interests in the company.

See Part 1 of this series for a general overview of sale / purchase / transfer of company membership interests and the legal process. This Part 2 focuses on the contract between the parties involved in the transaction, typically the Seller (Transferor) and the Buyer (Transferee), with the limited liability company itself often being a party to the agreement as well.

The agreement between the parties involved in the transaction is often called the “Membership Interest Transfer Agreement” or “Membership Interest Purchase and Sale Agreement” and states the terms of the agreement between the parties transferring ownership interests amongst each other. It’s important to note that the LLC itself may also want to be or need to be a party to such agreements.

Is this business contract a private document or does it become a public record? Typically, a Membership Interest Purchase and Sale Agreement is a private document and does not get “filed” or “recorded” anywhere. That doesn’t mean it can’t be ordered produced by a court, and of course there are other situations in which it must be or should be produced to certain government agencies or other private third parties.

What are the goals and purposes of a Membership Interest Transfer Agreement? There are many, and to some extent they will vary from situation to situation. The most common, most fundamental goal and purpose is to set forth in specific, clear detail what the

Here are some key issues which should definitely be covered in a Membership Interest Purchase and Sale Agreement, and of course this is not a complete list.

  • The full names of the parties; the full name of the LLC should be listed even if the LLC is not a party.
  • The date the transaction is effective.
  • The ownership structure before the transaction and what it will be after the transaction.
  • What items of value are being exchanged between the transacting parties (most often, Member A is selling ____% of the company’s membership interests in exchange for $_____).
  • What responsibilities / liabilities each of the parties has and doesn’t have as a result of the transaction, and the timing of the same.
    ○  For example, if Member A is selling all Member A’s interests, does Member A retain any responsibility or liability after the date of the transaction?
    ○  What happens if the new Member is subjected to negative consequences related to a new legal claim for events which occurred before becoming a Member, especially if Member A helped cause the claim?)
  • That the transaction has been approved, to the extent necessary, by other Members and/or the limited liability company itself.
  • Signatures of the parties (and sometimes of relevant other persons or entities).

We also point out that there are arguments to be made that the selling / transferring Member’s spouse (if there is one) should join in the Membership Interest Purchase and Sale Agreement.

Finally, we observe that if it’s a purchase / sale situation and the selling Member is not receiving all the purchase price up front, there are additional important items to add to the Membership Interest and Purchase Agreement and the use of a well-qualified attorney becomes even more important.

Look for more parts of this series to come!

Posted in Business Law & Contracts, business owners, business partners, limited liability company, llc

Business Ownership Deals: Buying And Selling (Transferring) Membership Interests In LLCs (Part 1)

Posted on February 9, 2024March 4, 2024 by g83js92js91
Categories: Business Law & Contracts, business owners, limited liability company, llc

 

The “owners” of a Limited Liability Company are traditionally referred to by attorneys as the LLC’s “Members”. It’s important to realize that (with some variation from state to state) there can be “Members” but also what may be referred to as “Economic Interest Owners”, and those are not the same thing. However, for the rest of this article and related articles, we’re just going to use the terms “Member” and “Owner” as synonyms, and Owner is going to mean someone who has full rights in the Company (mainly meaning having voting and economic rights).

A very common question we get asked at our law firm of McGrath and Spielberger is “What do I need to do to add an owner to my company?” The answer to that exact question is similar to the related question of “How do we transfer the ownership interests of a Member who is leaving the LLC?”

We’ll discuss which of these documents are public records filed with the Secretary of State vs. private records in a different article.

Whether you’re selling part of your LLC in North Carolina, buying into a limited liability company in South Carolina, or transferring membership to a family member in Tennessee, the steps are going to be similar. Of course, this article is not specific legal advice and you need to consult an attorney about the specifics of your situation.

  1. The agreement between the parties involved in the transaction. This might be called the “Membership Interest Transfer Agreement” or “Membership Interest Sale and Purchase Agreement” and states the terms of the agreement between the parties transferring ownership interests amongst each other. It’s important to note that the LLC itself may also want to be or need to be a party to such agreements.
  2. The LLC resolution. For key issues and situations, limited liability companies should generally hold votes or otherwise make decisions according to the law and the Operating Agreement and memorialize (record in writing) the issue and the outcome. In other words, what was decided / approved, if anything? An LLC decision to approve the transfer of ownership interests should be memorialized in a document called a “Resolution”.
  3. Operating Agreement: amendment or new agreement entirely? The changes in the LLC’s ownership structure should result in the Operating Agreement being formally amended. Sometimes the company doesn’t have a written Operating Agreement, meaning one needs to be created. In certain other instances, a change in membership structure for the limited liability company could or should result in a brand new Operating Agreement even when there was a written one in existence.
  4. Filings with Secretary of State. Some changes in company ownership will require new, updated, or different documents to be filed with the Secretary of State. Other instances should trigger such documents.
  5. IRS filings. We aren’t going to attempt to get into the many twists and turns of when changes in an LLC’s ownership may require X, Y, and/or Z changes with the IRS – just be aware that could need to occur.
  6. Beneficial Ownership Information Report filings / compliance with the Corporate Transparency Act. This article is not going to delve into this issue in any detail, although others will. Just be aware that changes to LLC ownership could require (updated) Beneficial Ownership Information Report filings.

Business Meeting.

This is not necessarily an all inclusive list; the more complex the ownership structure is and/or the more complex the changes are, the more likely there would be additional formal steps to take.

Also keep in mind the many business-oriented and practical changes and updates which can be required because of a change in ownership structure.

Other interesting questions related to business owner deals are “Can (or should) just 1 attorney do all this work? Does each party involved in the deal need their own lawyer? Can the attorney represent the LLC and also give advice to individual members?” We’ll address those sorts of issues in a different article.

Most experienced business law attorneys can handle this sort of work. It’s not always that complicated from an attorney perspective, but it takes time and dedicated effort, and the attorney needs to keep the brain engaged instead of lapsing into cruise control. Paying close attention helps the client get the best results.

Posted in Business Law & Contracts, business owners, limited liability company, llc

Comparison of Subchapter K v. Subchapter S

Posted on July 25, 2022December 18, 2023 by g83js92js91
Categories: business, internal revenue code, IRS, Life and the Law, limited liability company, llc, small business, starting a business, subchapter K, subchapter S, tax, tax attorney, Tax Issues, Tax Law
Depositphotos 7352892 s

Both Subchapter K and S of the Internal Revenue Code (IRC) are pass-through tax structures in which the members of the entity are taxed for the entity’s income, gains, losses, and expenses on their individual tax returns. That is where the similarities end.

There are several differences discussed below that make Subchapter K seem more taxpayer friendly than Subchapter S. Much of the popularity of the LLC is attributable to the fact that LLCs offer limited liability to all investors combined with the more flexible partnership tax regime. In some situations, however, the goals of the business owners may be better achieved with an S corporation.

Subchapter S places very strict restrictions on the ownership and capital structure for S corporations.  S corporations are limited to 100 shareholders (although members of a “family,” broadly defined, are counted as one shareholder), and they may not have more than one class of stock.  Additionally, all shareholders much be individual U.S. citizens or residents and other corporations or partnerships cannot be shareholders of the company.  Anyone can be a member or partner of an entity taxed under Subchapter K.

Partnerships and LLCs taxed under Subchapter K may make special allocations of income and deduction items, while shareholders of an S corporation must include corporate income and loss on a pro rata share basis.  Thus, partners/members may agree to share certain income or deductions disproportionately, and the agreement will be respected for tax purposes if it reflects their economic business deal.  Additionally, in most cases, partnerships and LLCs taxed under Subchapter K, can distribute appreciated property in kind without immediate recognition of taxable gain.

In a business with only a few owners, an S corporation may be the entity of choice because the flexibility of Subchapter K is not needed.  S corporations are often used by owners that prefer to conduct their business as a state law corporation instead of a partnership or limited liability company because they are more comfortable with the corporate governance structure.  S corporations are also often used by service providers to minimize their exposure to employment taxes.  S corporations are not viable options in many situations – a business with foreign investors would not be able to make the S corporation election because foreign investors are not permissible S corporation shareholders.  Additionally, many institutional investors (e.g., tax-exempt pension funds and charitable organizations) are discouraged by the tax system from investing in any type of active business that is operated as a pass-through entity.  Venture capital funds, which provide a large source of capital for start-up companies, appear to be more comfortable using the familiar C corporation capitalized with several classes of stock, a structure not available in an S corporation.

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For a complete analysis of the tax implications of C Corporations, Partnerships, and S Corporations click here for the Joint Committee on Taxation’s publication entitled “Choice of Business Entity: Present Law and Data Relating to C Corporations, Partnerships, and S Corporations.”

Contact us regarding your business law matter. Click here

Posted in business, internal revenue code, IRS, Life and the Law, limited liability company, llc, small business, starting a business, subchapter K, subchapter S, tax, tax attorney, Tax Issues, Tax Law

Letter of Good Standing and Certificate of Existence

Posted on July 24, 2019April 20, 2022 by g83js92js91
Categories: attorney, business, Business Law & Contracts, Certificate of Existence, corporation, Jason A McGrath, Letter of Good Standing, llc, McGrath amp; Spielberger, North Carolina, small business

This video contains helpful information for those going into business within the state of North Carolina including:

  • Certificate of Existence from the N.C. Secretary of State
  • Letter of Good Standing from the N.C. of Revenue

Business law attorney Jason McGrath discusses Letters of Good Standing and Certificates of Existence for North Carolina businesses in this informational video.

Click here to view on YouTube – https://youtu.be/EFhxSwkVy2E

If you are in need of legal assistance for your business in North Carolina, South Carolina, Tennessee, Georgia, Florida or Ohio, please fill out our confidential client intake form.

Posted in attorney, business, Business Law & Contracts, Certificate of Existence, corporation, Jason A McGrath, Letter of Good Standing, llc, McGrath amp; Spielberger, North Carolina, small business

Where Does an Arbitration Physically Take Place?

Posted on May 27, 2019April 20, 2022 by g83js92js91
Categories: arbitration, business, Business Law & Contracts, Business Law Disputes, Continuing Series, contract law, contracts, Jason A McGrath, lawyer, Litigation, llc, North Carolina, series, video

Attorney Jason McGrath shares some information about where you can expect an arbitration proceeding to physically take place in this short video and summarized in this blog post.

Understand the practical logistics of an arbitration that may arise from a dispute about your business contract.

Here are some of the key points contained in this informational video:

Where will the arbitration physically take place? What city or county? An attorney’s office? The courthouse? City hall?

  • As far as city or county, arbitration often takes place where a related lawsuit would be (or is) taking place.
  • Some arbitration agreements will dictate what city or county the arbitration must occur in.
  • Arbitration can usually occur anywhere that the parties agree.
  • The arbitration hearing could take place at a private law office or the arbitrator’s office.
  • Arbitration doesn’t usually occur in the courthouse.

Occasionally a court will enter an order as to the logistical specifics of arbitration, such as the hearing location. You should get advice from a contract attorney to assist in handling litigation issues like arbitration.

If you need legal services in North Carolina, South Carolina, Georgia, Florida, Ohio or Tennessee, we invite you to fill out our confidential client form for possible legal assistance.

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Posted in arbitration, business, Business Law & Contracts, Business Law Disputes, Continuing Series, contract law, contracts, Jason A McGrath, lawyer, Litigation, llc, North Carolina, series, video

What Factors Should You Consider When Starting a Business?

Posted on March 7, 2018April 20, 2022 by g83js92js91
Categories: business law, corporation, forming business, Life and the Law, limited liability, llc, North Carolina, online legal services, partnership, s corporation, single member llc, start-up business
Startup Business People Group 251096971When you decide to start a business venture, there are a myriad of things to consider.  You have possibly already chosen the purpose of your venture and what it is you are going to make, do, or sell.  You have probably also played around with what to name your business.  Now what?  Where do you go from here?

We regularly assist small business owners, especially start-up businesses, walking them through the steps that need to be taken in order to make the business official and legal.  There are many ways a business can be organized and there are non-tax factors, tax factors, and state statutory requirements that need to be taken into consideration when embarking on this exciting journey of starting a business.

This article focuses on a few of the non-tax factors that need to be considered.  A follow-up article will discuss the tax factors of organizing your business.  Much of the information in this article relates to the laws in a majority of jurisdictions along with examples of specific instances where North Carolina law is different from the majority of jurisdictions.  The statutory requirements of starting a business are state specific, therefore it is important to seek the assistance of a professional who knows the law in your jurisdiction.  There are also state and local licensing as well as registration requirements that will need to be met depending on the jurisdiction your business will be located in.

In the tables below the entities are listed from the broadest/most flexible to the most restrictive.

limited liability3 pt 1

Limited liability is probably the most sought after attribute of business owners forming a new business venture.  New business owners wish to protect their personal assets from the claims of business creditors.  This can usually be achieved by organizing the venture under a state law that limits the owners’ liability to the amount of capital the owner has invested in the entity.  Be very careful when capitalizing the business and applying for loans.  Some lenders may require that the owner(s) of the business provide a personal guarantee for the business obligations, thereby making the owner liable to those creditors of the business and defeating the purpose of the limitation of liability.

management and control1 pt 2
capital structure pt 3
transferability of interests pt 4
transferability of interests pt 4 1

The business lawyers McGrath & Spielberger, PLLC assists clients with all sorts of tax, business, and estate planning matters in North Carolina.  Click here to contact us about your tax, business, or estate planning matter today.

Posted in business law, corporation, forming business, Life and the Law, limited liability, llc, North Carolina, online legal services, partnership, s corporation, single member llc, start-up business

How Do You “Transfer” Your Company Into North Carolina From Another State?

Posted on November 3, 2016April 25, 2022 by g83js92js91
Categories: attorney, business, business law, Business Law & Contracts, contracts, florida, Jason A McGrath, llc, North Carolina, small business
Transferring Your Company Into North Carolina From Another State, moving

As a business attorney, one of the most frequent questions I am asked is some variation of “How do I transfer my out-of-state company to North Carolina?” I’ll address the most common scenarios and the reasonable options available. I’m using Florida as the other state just for example purposes (I also practice in FL), but the same general process is true regardless of which state your company originated in or currently exists in.

Scenario A: “I live in Florida, where my company was formed, but I’m moving to North Carolina and going forward I will be doing business out of North Carolina instead of Florida. What should I do and how do I do it?”

Option 1: convert your Florida company into a North Carolina company.  NC allows a company formed in another state to convert to become a NC LLC. The company would need to follow the law of the state it is coming from as far as winding down any business and otherwise wrapping up affairs in that state, and would typically need to have passed a resolution or similar approving the conversion to a NC company. The LLC can then file its Articles of Organization/Conversion with the NC Secretary of State.

Option 2: shut your Florida company down and start a new one in North Carolina. You would “wind up” your Florida LLC and dissolve it, such that it no longer exists. While the timing of the steps in North Carolina may vary to some extent, you’d go ahead and create a North Carolina LLC. The name would not have to be the same, but there are advantages to using the same name, if possible (this article does not attempt to address those issues).

Option 3: keep your Florida company open and register it with the State of North Carolina as a foreign business authorized to transact in North Carolina. You’d obtain a “Certificate of Good Standing” or similar from Florida. You then provide that to the NC Secretary of State as part of your North Carolina Application for Certificate of Authority (to conduct business in North Carolina). Assuming you are approved by NC, you’re now good to go to conduct business in both states, or either state, and you can have your principal place of business in either state. You will likely be required to pay annual fees to each state and file taxes in each state, which are important factors to consider.

Option 4: start an affiliated company or subsidiary in North Carolina. In certain specific instances, you may keep your Florida LLC open, and instead of registering it with North Carolina, you’d prefer to create and register a separate but related business entity in North Carolina. This is typically referred to as a “subsidiary” or an “affiliated company”. You will likely be required to pay annual fees to each state and file taxes in each state, which are important factors to consider.

Additional notes. Under any of the above options, you’ll have to have a registered agent with a “continuous presence” in NC. Many law firms (like mine) agree to provide that service for a small annual fee, but your company’s “RA” doesn’t have to be a lawyer or law firm. Of course, we also provide the very services needed to transfer your business overall.

These actions can be accomplished without an attorney, but you should at least consider consulting with an attorney any time you make a significant change to your business entity. Good luck!

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Posted in attorney, business, business law, Business Law & Contracts, contracts, florida, Jason A McGrath, llc, North Carolina, small business

Requests for Admissions In a Lawsuit

Posted on September 6, 2016May 2, 2022 by g83js92js91
Categories: attorney, Business Law & Contracts, Business Law Disputes, discovery, interrogatories, Jason A McGrath, lawsuit, Litigation, llc, NC Rules of Civil Procedure, North Carolina
Litigation Attorney Jason McGrath explains Requests for Admissions in a lawsuit under the rules of civil procedure in this short video.

https://youtu.be/f6iMEvfSr_A

If you are dealing with a lawsuit in North Carolina please fill out our confidential client intake form for legal assistance.

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Posted in attorney, Business Law & Contracts, Business Law Disputes, discovery, interrogatories, Jason A McGrath, lawsuit, Litigation, llc, NC Rules of Civil Procedure, North Carolina

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Recent Posts

  • Business Ownership Deals (Part 6 of Series): How Many Different Attorneys Need To Be Involved?
  • Business Ownership Deals: Buying And Selling (Transferring) Membership Interests In LLCs – Part 5, Filings With The Secretary Of State
  • Business Ownership Deals: Buying And Selling (Transferring) Membership Interests In LLCs – Part 4, Operating Agreement (“OA”) Changes
  • Business Ownership Deals: Buying And Selling (Transferring) Membership Interests In LLCs – Part 3, The Company Resolution
  • Business Ownership Deals: Buying And Selling (Transferring) Membership Interests In LLCs (Part 2)

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info@mcgrathspielberger.com

1.800.481.2180


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