Financial Post
SIGNED, SEALED, SAFE
Jim Middlemiss, Financial Post
Monday, February 11, 2008
Early in her career, author Margaret Atwood says she became the "negative beneficiary of a bad film contract." It left its indelible mark on her and was a mistake she vowed not to repeat.
So when she started her most recent company, Unotchit Inc., which makes the LongPen technology that enables long-distance document signing, she sought legal and accounting advice right from the beginning to make sure she had her T's crossed and her I's dotted. After all, she was taking her business from her garage to the market. That meant building the right foundation and ensuring she had correct contracts and infrastructure in place to support the business.
"When a relationship is going well, you don't need a contract. It's when people start to disagree that you have to go back to that contract and see what you both signed," Ms. Atwood says.
Because she was building a technology firm from the ground up, which would involve hiring staff, including Don Marshall as chief executive, she elected to use two law firms, one to handle corporate matters, Fraser Milner Casgrain, her long-time corporate solicitors, and Miller Thomson, which handles issues related to technology and patents.
That type of attention to detail caught the attention of Mr. Marshall, who on his first meeting with Ms. Atwood to discuss joining her company, was met with a "stack of patent filings. I was impressed. At startups, that usually doesn't happen," he says.
But it should, say legal, accounting and business experts, who stress it is critical entrepreneurs take the time at the beginning to properly paper their company from both a legal and accounting perspective.
Ted Shoub, a lawyer, at Fraser Milner, says a key failing of business owners is they don't spend enough time thinking about how to structure their company from the start. "They fly by the seat of their pants."
Owners need to understand the best strategy: Should it be a partnership, a company or remain as a sole proprietor.
"Clients don't sit down with an accountant or tax lawyer to figure out how they want to structure the company, they leave that 'til later." By waiting, he says, the owner misses out on opportunities to minimize the tax implications of business ownership.
If it's a corporation, "you need to figure out the loan component at the outset. There are income-splitting opportunities if family members have shares. "Each of these decisions come with tax implications. The Canada Revenue Agency doesn't let you go back in time and fix things. The best thing is to get it right from the beginning."
Deb MacPherson, a tax partner at KPMG in Hamilton, says owners should beware that the structure they use has "some flexibility in it." For example, "if you know that you'll have startup losses, you don't want those trapped in a corporation." By using a sole proprietorship or partnership, "those losses can be used against other income."
If you are doing business with a partner, Mr. Shoub says, it's important to make sure you paper that relationship with an appropriate shareholder's agreement. It should take into consideration how decisions will be made in the company and how the business will deal with differences in opinion among shareholders, so the agreement needs a mechanism to deal with disputes. It should also have some way to determine the value of the business, "whether it's a formula or an agreement on who to use to value the company. It's helpful to decide that before you get into a dispute," Mr. Shoub says.
Papering your company from the get-go also means dealing with accounting issues, Ms. MacPherson says. That means obtaining a business number from the government so you can pay GST and payroll taxes and making sure that you are properly set up to pay your corporate taxes and remit any provincial sales tax if necessary.
It also means keeping proper books and setting up your accounting system so everything is above board for tracking your company's expenses and revenues. "Books and records don't have to be fancy," she says. It could be as easy as a spreadsheet. Entrepreneurs might consider hiring a bookkeeper. "You want to be able to sleep at night."
If you have developed special technology, as with Ms. Atwood's case, lawyer Anthony de Fazekas of Miller Thomson, says it's critically important to deal with it right from the beginning and obtain patent protection. Otherwise, you risk losing ownership of it.
Moreover, don't discount foreign markets, such as Europe or Asia, he says. While they might not seem important at the beginning, they could become critical markets down the road. If owners only protect there technology here in North America, they could find that competitors take their ideas" and sell them in other markets.
"Sometimes what we have to do is try to turn back the clock and improve these things. It can be very challenging and end up costing a lot more than having the proper protections in the first place," Mr. de Fazekas says.
Contracts can also be an area of concern, Mr. Shoub says. Make sure they are iron clad and get contracts reviewed by a lawyer. "It will save you a lot of grief later on."
Finally, one of the most important reasons for properly documenting everything from the beginning is that owners might eventually want to exit their company through a sale to another party. That's why it's important to maintain things like the corporate record book, Mr. Shoub says. "It will give the investor confidence and make it transparent and make sure there are no skeletons in the closet."
Given her efforts to do it right from the beginning, Ms. Atwood, isn't too worried about unforeseen surprises. "There's no skeletons, in the closet. They are all right here on the floor where I can see them."
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