Blanco Tackabery sponsored and attended the 2018 Southeast Renewable Energy Summit presented by Infocast in Atlanta, GA on November 7th-9th. The summit is an annual networking event where the southeast renewable energy community gathers to get the latest insights into the market and to meet key players. Attending the event and pictured below are Drew Felts and Meghan Maguire who are attorneys in our Renewable Energy Practice Group .
Most small businesses, whether at the start-up phase or when seeking to grow and expand, will inevitably need capital infusions to obtain their corporate objectives. Aside from personal funds or loans from governmental or commercial lenders, entities often times seek to raise additional funds through selling “securities” (i.e., stock or other forms of equity or debt) to potential investors. What many small business owners do not realize is that the sale of securities is heavily regulated by both federal and state laws and failure to comply with such securities laws may have serious repercussions on an entity and its owners.
A “security”, as defined under both federal and state statutes, encompasses a wide variety of instruments, including but not limited to notes, stock, treasury stock, bond, debentures, warrants, evidence of indebtedness, participation in profit-sharing agreements and investment contracts. When an entity sells a security, such sale must either be: (i) registered with the United States Securities and Exchange Commission (“SEC”) and the appropriate state securities authorities, or (ii) exempt from registration under federal and state securities laws. These requirements apply to all businesses in all securities offerings, ranging from small private companies selling securities to friends and family, to global public companies selling securities to a large base of potential investors. Every securities transaction must comply with both federal securities laws and the securities laws of each state of residence of an investor.
Registration and Exemption
Registration with the SEC or state securities agencies can be complex, time consuming and expensive process that includes the preparation and filing of a disclosure prospectus that must be provided to all potential investors. Therefore, issuers usually seek to avoid the registration process by structuring securities offering in order to qualify for an available exemption from registration under both federal and securities laws. Structuring an offering to comply with an available exemption may include imposing certain restrictions on the monetary amount of securities offered, sophistication of the investors (i.e., accredited investors) and number of investors the securities are offered. Certain exemptions at the federal and state level may be self-executing (i.e., no additional follow-up information required), while other exemptions may require notice and other related filings at the federal and state level. Certain exemptions may also require the additional preparation of other disclosure related materials to be provided to the investors and/or the federal and state governing authorities.
Failure to Comply with Securities Law
Failure to properly comply with federal and state securities laws in connection with the sale of securities could result in serious repercussions for an entity. Depending on the nature and severity of the securities law violation, the company and its principals could face criminal charges at both a federal and state level. Further, the SEC and/or state securities authorities may pursue claims for civil penalties, ranging from monetary fines to temporary or permanent prohibitions on the company from conducting future capital raising activities. In addition, investors may seek to rescind their purchase in the offering and receive the principal amount invested in the company with interest. It is important to note that those principals who control the company may also be personally liable to the investor for rescission or damages if the company no longer has available cash to reimburse such investors.
Long Term Impact
Aside from the potential legal ramifications noted above, securities laws violations could have negative long lasting effects on a company in connection with future financing activities. As a company grows, it may ultimately seek to raise additional capital from more sophisticated investors, such as angel investors and investment banking firms. Such sophisticated investors, as part of the due diligence process, will analyze the company’s capitalization table, including prior sales of equity and debt in the company. If a security violation (or a potential violation) is revealed in the diligence process, then the investors are more likely to avoid investing in the company due to the uncertainty of future potential lawsuits and penalties. In the event a company elects to conduct financing activities that includes the sale of securities, regardless of the size of the offering or target investors, it is recommended that such company consult with a securities professional to ensure that such securities offering complies with all federal and state securities laws.
About the Author: Chris Seamster
Chris focuses his practice on Corporate and Securities Law
Executive Order No. 80 Reaffirms North Carolina’s Commitment To Reducing Statewide Greenhouse Gas Emissions and Supporting the Expansion of Clean Energy Businesses
On October 31st, Governor Roy Cooper issued Executive Order No. 80 highlighting North Carolina’s commitment to fight climate change and lead North Carolina’s transition to a clean energy economy. The executive order calls for the State of North Carolina to protect North Carolina’s environment while growing clean energy technologies.
“A strong clean energy economy combats climate change while creating good jobs and a healthy environment,” said Cooper. “With historic storms lashing our state, we must combat climate change, make our state more resilient and lessen the impact of future natural disasters.”
Cooper signed the executive order at SAS Institute’s solar farm in Cary. The order affirms North Carolina’s commitment to reducing statewide greenhouse gas emissions to 40% below 2005 levels by 2025. Additionally, the order calls for an increase in registered, zero-emission vehicles (“ZEVs”) in North Carolina to at least 80,000 and a 40% reduction in energy consumption in state-owned buildings.
The order creates the North Carolina Climate Change Interagency Council, which includes a representative from every state cabinet agency, to make changes happen.
The order also directs the following actions:
Since January 1, 2018, North Carolina has observed a new set of rules pertaining to powers of attorney. These new rules are North Carolina’s take on the Uniform Power of Attorney Act, which was also recently adopted by Georgia and South Carolina (with each state putting their own twist on some of the provisions). In addition to adding some consistency to the way powers of attorney are handled throughout our region, the new law clarifies certain points of law and eases some of the concerns that made banks and other financial institutions reluctant to deal with powers of attorney in the past.
What is a Power of Attorney?
Before diving into the finer points of the new law, it may be helpful to review what a power of attorney is. A power of attorney is a document that allows a “principal” to appoint an “agent” to act in the principal’s place. Unless the document says otherwise, the agent’s authority begins as soon as the document is executed. If a principal so desires, a document can instead be written so that an agent’s authority doesn’t spring into existence until a specified event comes to pass (such as the principal losing capacity to make decisions on his or her own behalf). In either case, a principal can put limits on the agent’s authority to act, but in general, the agent can deal with the principal’s real property, tangible personal property, and bank accounts in exactly the same way as the principal could. Subject to any limitations put in place, the agent can even can operate the principal’s business, pursue claims and litigation on the principal’s behalf, sign the principal’s tax returns, and more. With a power of attorney in place, a principal doesn’t have to worry about his or her life grinding to a halt in the event that the principal is not able to deal with his or her assets directly. An agent will be there to keep things on track, and there won’t be any need to first endure a potentially lengthy and expensive guardianship proceeding in court.
Power of Attorney Changes
Some of the biggest changes to the new law affect the relationship between principals and agents, including the manner in which a principal can revoke a power of attorney and an agent’s authority thereunder. Also clarified are the rules regarding co-agents serving together under a power of attorney. As an additional means of protecting principals, the new law states that certain important powers can no longer be given to an agent under a general grant of authority, but must be explicitly granted to the agent. Finally, under the new law, powers of attorney do not need to be recorded with the Register of Deeds in order to be effective (unless the agent needs to carry out a real estate transaction).
Many of the changes affect third parties – people or institutions who may deal with an agent acting under the authority of a power of attorney. Under the new law, it is much clearer when a third party is free to reject a power of attorney and what steps a third party may take to assure itself that a power of attorney is legitimate. Third parties should remember that the power of attorney execution requirements vary from state to state, so it is always wise to look at the document’s state of origin and choice of law provision when evaluating its legitimacy.
Is a Previous Power of Attorney still valid?
It is important to know that a power of attorney executed prior to January 1, 2018 is still valid, even after the change in the law. However, a pre-2018 power of attorney will likely lack some of the protections that are now the norm under newer documents. As time passes, financial institutions and other third parties will become less and less familiar with pre-2018 powers of attorney, and these documents may become harder for agents to use as a result.
If you would like to replace your old power of attorney or execute one for the first time, the estate planning attorneys at Blanco Tackabery are here to help. Please feel free to contact us by phone or email to discuss powers of attorney or any other estate planning needs you may have.
About the Author: Ryan Layton
Ryan is a wills, trusts and estate planning attorney at Blanco Tackabery.
While pundits and voters may focus the bulk of their attention on marquee congressional races this Election Day, an equally important but less trumpeted electoral contest also appears on North Carolinians’ ballots: a three-way race to either remain or become an Associate Justice of the Supreme Court of North Carolina.
Unlike the nine United States Supreme Court justices, who ascended to that Court by scoring a presidential nomination and surviving Senate confirmation, the seven men and women who comprise North Carolina’s highest court secured their judicial posts via popular, state-wide election. However, despite the unusual privilege that North Carolina voters enjoy when it comes to selecting the jurists who serve on their State’s highest court, some may be surprised to learn exactly what kinds of cases that Court hears.
Types of Cases Heard
Those cases can be broadly divided into two categories: (1) cases that the Court must hear; and (2) those that the Court may, in its discretion, elect to hear. Each of these two categories is addressed in turn below.
Cases falling into the “must hear” category currently include the following: (1) appeals from decisions of the superior court in which a criminal defendant has been convicted of first-degree murder and the judgment imposed includes a sentence of death; (2) final judgments and otherwise appealable orders rendered by the North Carolina Business Court; (3) appeals from all trial court decisions regarding class action certification; (4) appeals from final orders or decisions of the Utilities Commission in general rate cases; and (5) any decision issued by a three-judge panel of the North Carolina Court of Appeals in which there is a dissent. Beginning January 1, 2019, appeals from district court orders that terminate parental rights or deny a petition or motion to terminate parental rights will be added to this list, although there is some movement to rescind this category.
Cases falling into the “may hear” category include appeals from unanimous decisions rendered by a three-judge panel of the North Carolina Court of Appeals, or cases decided by the Court of Appeals on initial en banc review (that is, heard by the full Court of Appeals, as opposed to a panel of three judges), in which the subject matter of the appeal has significant public interest, the cause involves legal principles of major significance to the jurisprudence of the State, or the decision of the Court of Appeals appears likely to be in conflict with a decision of the Supreme Court. Other cases falling into this category include appeals from certain trial court or administrative agency decisions in which the subject matter of the appeal has significant public interest, the cause involves legal principles of major significance to the jurisprudence of the State, delay in final adjudication would likely result from the Court’s failure to certify the case for direct appeal and thereby cause substantial harm, or the subject matter of the appeal is critical to overseeing the jurisdiction and integrity of the court system. A similarly limited subset of trial court and administrative agency decisions may be heard by the Supreme Court by direct appeal, skipping the Court of Appeals, when the workload of the State’s two appellate courts is such that the expeditious administration of justice requires immediate and direct appeal to Supreme Court.
Cases that are the Exception
Finally, toeing the line between “must hear” and “may hear” are decisions rendered by a unanimous, three-judge panel of the North Carolina Court of Appeals, or decided by the Court of Appeals on initial en banc review, which directly involve a substantial constitutional question arising under either the federal or state constitutions. These cases defy easy yes/no categorization because, although they technically give rise to a statutory appeal of right, the Supreme Court itself decides what amounts to a substantial constitutional question. As a result, a litigant may believe his case involves a substantial constitutional question, thus making his appeal a much coveted “must hear” case, but the Court may disagree with the litigant’s assessment of the substantiality of the constitutional question presented. If so, the Court may demote the appeal to “may hear” status.
For “must hear” cases, “may hear cases,” and all cases in between, the appellate litigators at Blanco Tackabery stand ready to assist you in navigating the complex arena of North Carolina Supreme Court appeals.
About the Author: Chad Archer
Chad focuses his practice on civil litigation.
Owning a business is exciting at times, frustrating at others, but always demanding. There are so many decisions to make on a daily basis, and often, as a business owner, you not only have to make the decisions, but must also roll up your sleeves to make those decisions bear fruit. One decision you should make early as a business owner is determining who will be your trusted advisors to guide you through the legal and accounting issues your business will encounter. Selecting a professional to assist you with legal and accounting decisions is vital to launching and maintaining a viable enterprise, because decisions made early in the formation of a business can have far reaching consequences down the road.
In my practice, I often see clients who chose to handle matters without engaging attorneys and accountants early in the process, and later failed to recognize issues as they arose during the day-to-day operations of the business. Those decisions can cost business owners far more money down the road than hiring the appropriate professionals in the beginning, and can have a significant effect on the ultimate success or failure of the business. I have found those mistakes fall into seven basic categories. This is Pitfall number 1 of 7 common pitfalls I see businesses owners make. Over the next few weeks, I will be sharing all 7 of these pitfalls and proven ways to prevent them.
Selection of Proper Entity Type – The first pitfall made by many business owners when starting a business is not properly organizing a business entity. Too often owners start a business “on the side” and run that business as a sole proprietorship. This has a number of legal and accounting consequences, including personal exposure to liability for acts of the business, tax implications, and too often a comingling of personal assets and liabilities with business assets and liabilities. Let’s face it, the reason you form a business entity to conduct business is to separate the business operations and its liabilities from your personal assets. Owners need this protection right from the start, so selecting the proper entity type and correctly forming that entity under the law prior to commencing business is an absolute must.
It seems everyone wants to form a limited liability company these days, because something about it just sounds so safe. In reality a business may be better suited as a corporation or another type of limited liability entity. The business owner should also consider the tax options available under the chosen form. Is the business just going to own real estate? Is the business going to hire employees? Is the business going to be service related or manufacturing? All these details influence the type of business entity the business owner should form. Knowing the benefits and drawbacks of each business type is essential in making a smart start to the business. Thus, an early consultation with legal and accounting advisors will ensure the business starts off on the right track.
Importance of Shareholder Agreements and Operating Agreements – Another common mistake made by business owners is setting up an entity and then neglecting to define how the owners will govern the business. When there is more than one owner of a company, a Shareholder Agreement or Operating Agreement establishes the ground rules for operating the business and the legal relationship between the owners. These agreements cover management and governance of the company, voting rights and protocols, profit-sharing, adding new owners, transfer rights of existing owners, buyouts, and dispute resolution between owners. It is the playbook for the organization.
Failure to reach an agreement between the owners on these vital issues, and reducing that agreement to writing is the most common pitfall I see in my practice, and results in dissention and costly litigation more often than it should. Having a simple agreement drafted by an attorney covering these issues, and then referring to such agreement in times of conflict will generally resolve the issue, without the business suffering.
Establishing Entity Control – “We want to own the company fifty, fifty.” Spouses, family members, friends, all want to be completely fair and equitable in the ownership of a business. I get that, and it is admirable, but it is one of the most often encountered legal pitfalls for business owners. I always counsel against this and ask clients to make the hard decision of who will have entity control if there is a disagreement regarding an important decision. Every company has to have a final decision maker, and that person is going to be the person who owns the majority of the ownership interest in a company, be that shares of stock, membership interest or partnership interest. This makes good business, and personal relationships must be set aside for the moment so that entity control is established and the potential for “deadlock” is reduced or
Secretary of State Filings – The business is validly formed entity, and has a shareholder agreement establishing corporate governance, now it must keep up its annual filings and fees with the North Carolina Secretary of State. This is a simple process for limited liability companies, but often overlooked by many business owners, especially single-member limited liability companies. Failure to file annual reports and pay annual fees will result in an administrative dissolution of the company. Corporations must also file income tax returns every year to remain in good standing. Administrative dissolution may not seem like a big deal, but it is if the company wants to buy or sell real property, enter into a contract, or borrow money. Technically an administratively dissolved company is not in good standing with the North Carolina Secretary of State, and does not have authority to act as a valid entity to transfer title to property, enter into a contract or borrow money. A simple way to avoid this pitfall is to put an annual reminder on the calendar the beginning of every April prompting the company to file an annual report and pay the required fees. The annual report is a simple form and may be completed online and filed electronically. It requires no special assistance from a legal advisor, although most law firms will offer this service to its clients for a nominal annual fee.
Corporate Formalities – A failure to observe corporate formalities could be a very costly pitfall for business owners. Corporate formalities are the corporate governance actions taken by a business to establish the validity of the decisions made and actions taken by the company, which in turn maintain its separate identity from the business owners. This is important to shield the business owner from the liabilities of the company. Certain fundamental basic formalities should be observed from day one, and maintained throughout the operation of the company. Common corporate formalities business owners neglect are electing a board of directors, electing officers and managers of the company, keeping up corporate minutes of decisions and actions taken by the board of directors, or members or managers of a company, and maintaining separate financial books and records for the company from the personal finances of the business owner.
Often business owners operate “out of one checkbook” or “help themselves to the till.” Such practices are dangerous and may expose the business owner to liability of the business. If the assets and liability of the company are comingled with the person assets of the business owners an argument can be made for disregarding the entity form altogether and treating the individual owner and the business as one and the same. The same is true for a failure to file annual reports with the Secretary of State, maintain corporate books and records, and otherwise observe the corporate form as a separate and distinct entity.
About the Author
Ashley focuses her practice on Outside General Counsel Services and Business Bankruptcy and Creditor’s Rights Practice Areas. She is an effective, results-driven advocate for her clients. Her background of 30 years in business bankruptcies, distressed debt workouts, problem loan recovery, and real estate title and commercial litigation provides her with a solid foundation of general business, accounting and legal skills.
Blanco Tackabery was proud to sponsor and participate in the Ardmore RAH! RAH stands for Run Against Hunger because it’s a food drive with all net proceeds going to benefit the Second Harvest Food Bank of Northwest NC. Members of Redeemer Church and the Ardmore Neighborhood Association founded the Ardmore 5k 16 years ago. More than $194,000 has been donated to Second Harvest Food Bank over the years. The race now features a fun run, a 5K and a 10K. Pictured below from Blanco Tackabery is Ryan Layton an estate planning attorney, Susan Campbell an Affordable Housing attorney, Lisa Cornatzer, Anna Gregory Wagoner a Renewable Energy attorney, Chris Slate, Martin Majorel and Mike Reed.
Blanco Tackabery was proud to sponsor and participate in the NAIOP Golf event held on October 4th at Greensboro Country Club Farm Course. The event raised money for Backpack Beginnings. Backpack Beginnings is a multi-program organization that serves over 7,000 children in need by helping to provide them with food over the weekend. On the Blanco Tackabery team and pictured below are Drew Felts a Commercial Real Estate and Renewable Energy attorney, James Goodwin an Affordable Housing and Community Development attorney, Amy Lanning a Commercial Real Estate attorney and Chris Seamster a Corporate Law attorney.
Blanco Tackabery was proud to sponsor and participate in the 2nd Annual Veterans Helping Veterans Heal Golf Tournament. The event was held on September 20th at Reynolds Park course. Veterans Helping Veterans Heal is a private 501(c)(3) sponsored by the North Carolina Housing Foundation. VHVH exists to serve the homeless veteran population in Forsyth County. VHVH is a partner in the Ten Year Plan to end chronic homelessness and serve homeless veterans with mental health issues referred by the Veterans Administration. On the Blanco Tackabery team and pictured below are James Goodwin an Affordable Housing and Community Development attorney, Chad Archer a Civil Litigation attorney, Amy Lanning a Commercial Real Estate attorney and Drew Felts a Commercial Real Estate and Renewable Energy attorney.
Blanco Tackabery was proud to sponsor and participate in the 7th Annual Piedmont Opera Golf Tournament. The event was held on September 28th at Bermuda Run West. In a surprising turn of events, the Blanco Tackabery team had the low score of the day and won 1st place in the event. On the team and pictured below are Kenny Taylor from Truliant Federal Credit Union, Drew Felts a Commercial Real Estate and Renewable Energy Attorney at Blanco Tackabery, Chris Seamster a Corporate and Business law attorney at Blanco Tackabery and Richard Spangler from Alex Brown.
Across America, clean and readily abundant forms of energy are powering more than homes and businesses. Taken together, our capacity for secure and reliable energy generation is driving a clean energy renaissance that is creating jobs, strengthening America’s national security, and preserving our environment.
National Clean Energy Week was conceived with the goal of advancing support of our nation’s energy sector through new methods of market development, policy change and technological innovation. Blanco Tackabery is proud to be a key participant in this industry. Blanco Tackabery provides Renewable Energy developers with legal services related to acquisition, development, financing and disposition of utility solar projects. Blanco Tackabery and its clients have played a key role in helping make North Carolina the second largest state in the country for solar energy. Daniel Vandergriff, a Renewable Energy attorney at Blanco Tackabery, stated that “not only is our firm strong in North Carolina but we represent clients throughout the U.S. on renewable energy matters, including 7 of the top 10 states.”
Meghan Maguire, an Intellectual Property and Business Law attorney from Blanco Tackabery was proud to participate on September 25th in the legal clinic as part of the Creative Startups Accelerator program. The Center for Creative Economy is the lead partner for Creative Startups and hosts the annual accelerator program designed for creative entrepreneurs. This intensive 8-week virtual program is open to all startups anywhere in the world. During the first 7 weeks, startups critically analyze their business models and receive tools and training to combat tough situations. The final “Deep Dive Week” all startups, mentors, and investors travel to Winston-Salem, NC to work together and network. The week ends with a pitch competition where the top three startups split a pool of $50,000 in seed stage investment.
