For over 30 years, Sutton has been providing business leaders and real estate investors with the necessary support for asset and legal protection while maximizing their financial goals. He founded two companies, Corporate Direct and Sutton Law Center, which have helped scores of clients and incorporate their businesses and protect their assets.
Garrett also is part of the elite group “Rich Dad Advisors” tied to bestselling author Robert Kiyosaki. A number of the books Sutton has authored are part of the bestselling Rich Dad, Poor Dad wealth-building series.
Garrett attended Colorado College and the University of California, Berkeley, where he received a B.S. in Business Administration in 1975. He graduated with a J.D. in 1978 from Hastings College of Law, the University of California’s law school in San Francisco.
Licensed in Nevada and California, Sutton is a member of the State Bar of Nevada, the State Bar of California, and the American Bar Association. His professional articles have appeared in the Wall Street Journal and Credit.com, among other publications.
In this Equa interview, Sutton discussed the growing world of business formation and what it means for both startups and established businesses.
How did the concept of corporate entities come into existence?
When we fought in the American Revolution, we took not only the English crown on but a giant corporation, the British East India Company. This was during a period in our history when people were generally upset about corporations.
So at the founding, there was some interest around creating a national corporate law. There was a lot of resistance to this as the populace instead wanted each state to have its own corporate law. So that’s how it was carried forward, a decision which allowed states to compete in terms of the favorability of their laws.
So which states currently offer the greatest favorability?
Delaware has always been out in front. But Nevada and Wyoming have made efforts to become the go-to states. Wyoming when it comes to LLC’s is great. And Nevada is the only state that allows the charging order protection, the key LLC asset protection feature for corporate shares. So we’re in a dynamic period, one where each state that wants to compete can amend their laws in an effort to become the most favorable they can.
What’s one of the common mistakes businesses make when setting up a corporation?
With all due respect, the first one is that you often have CPA’s, telling people that they don’t need to set up a corporation or LLC when starting a new business. Our joke as corporation attorneys is that CPA stands for “Can’t Protect Assets.” So in my opinion, it’s imperative for new businesses to talk with an attorney, someone who understands what the risks are of operating as a sole proprietor, such as the fact that all of your personal assets are exposed. So that’s a rookie mistake right out of the gate, not setting up an entity from the get-go.
Are there any other mistakes?
Yes, a second blunder common among business owners when setting up an entity is utilizing one of those $99.00 providers that will form the company for you and get it chartered with the state without providing you with the paperwork you need to be a legitimate corporation. In other words, things like by-laws for the corporation or an operating agreement for an LLC are often missing. The issue here is that if you don’t have that paperwork together, someone can pierce through the corporate veil of your business and reach your personal assets. So it’s important to not only to do it right at the start but to have all the documents you need set up and ready to go when requested.
How are these documents typically organized?
Some of these formation services send you a disk with the agreement on it and you’re supposed to fill it out and sign it. But many business owners forget to execute the signatures. So you just have this disk when you walk into court, try to print out what’s on it, and if it hasn’t been properly signed, you are going to lose the case. So it’s important from the very start to make sure that you print out the document and sign it.
What about corporate minutes?
Businesses need to have minutes every year, the corporate annual documentation of the directors and the shareholders' meetings. For LLC’s, its important to have regular meetings of the members that are documented through meeting minutes. If you’re ever called into a court of law, you’ll need to have those annual minutes prepared. Because if a judge looks at your minute book and sees that you haven’t met the requirements for a couple of years, he/she could say that you’re not following the requirements of a business.
Are these minutes an annual requirement?
Yes. You need to be conducting your annual meetings even if the state law says otherwise. In Germany where the LLC was started way back when, if you didn’t have the annual meeting minutes, your corporate veil could be pierced.
What about corporate entities and how they’re set up business taxation?
There are two issues. The first is how your business is going to be taxed. We work with CPA’s all the time to have an LLC taxed as an S Corp, if necessary, or as a C Corp, or partnership or as a disregarded single entity. So we work with CPAs on how your entity is going to be taxed and what’s the best taxation method for you.
And certainly, the CPA has a great role in selecting the method of taxation.
What about stock certificates? And the emergence of blockchain to manage them?
When it comes to stock certificates and all, they’re going to be important if you are a public company, or if you are going to have a large number of shareholders.
It’s here where blockchain technology is certainly going to assist in the issuance of stock certificates. Delaware, in fact, has recently allowed for blockchain stock certificates. So it’s a dynamic area right now.
Can you share with us a little about you’re long-term working relationship with Rich Dad/Poor Dad author Robert Kiyosaki?
I’ve been very fortunate to collaborate with Robert Kiyosaki and the Rich Dad/Poor Dad group for almost 20 years. They initially asked me to write a book that would be accessible to the average person who wants to understand corporate and LLC structures. So that’s why I wrote the first book “Start Your Own Corporation” which I’ve updated a number of times over the years because of tax laws changes and changes in asset protection laws.
And then there’s the book “Loopholes of Real Estate” where I talk about the legal strategies for investing in real estate. I use stories to make points about the concepts. Instead of a dry narrative around how you’re supposed to do things, I tell a story as my readers seem to learn better from the examples.
So it’s been very enjoyable for me to write these books, and to get feedback from others. I’m on the phone with people all the time from around the country and the world and a lot of them say that they have appreciated the book because it provides such a comprehensive overview of asset protection.
What do you believe is ahead in terms of corporate entities?
That business formation will continue forward at a steady pace. Because a lot of people are investing in real estate you are certainly going to see a growing demand for LLCs. People are also using LLC for other forms of investing. A lot of people, for example, are looking to Wyoming as a place to form a Wyoming LLC and hold their digital assets there because such a favorable set of laws exists there for bitcoin and other forms of digital currencies.
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A corporate entity is a business structure formed specifically to perform activities, such as running an enterprise or holding assets. Although it may be comprised of individual directors, officers, and shareholders, a corporation is a legal entity in and of itself.
Generally speaking, there are three general forms of legal entities through which business can be conducted: (1) sole proprietorship, (2) corporation, and (3) partnership.
There is also the limited liability company (LLC), a business structure that can integrate the pass-through taxation of a partnership or sole proprietorship with the limited liability protections of a corporation. LLC’s are technically not a corporation under state law. Rather they are legal structures that deliver jurisdictional limited liability protection to business owners.
These various forms of entities are legally able to enter into agreements or contracts, purchase property, assume obligations, open a bank account, incur and pay debts, sue and be sued in their own right, and issue stock under their business umbrella.
Businesses throughout the world utilize corporate entity structures. A corporation’s most important attribute is its limited liability provision. This allows shareholders to accrue profits through dividends and stock appreciation without being personally liable for company debt.
Establishing a Corporate Entity
Corporations are created through an incorporation process initiated by either a single shareholder or a group of shareholders with ownership rights to the corporation. This begins with the filing of Articles of Incorporation in the state jurisdiction where the corporation is seeking to be registered.
A filing can occur in a state outside of where the corporation is located. States like Delaware, Wyoming, and Nevada have favorable incentives for companies registering in their geographic locations. These corporations, however, are required to register as a “foreign” corporation in the state where they actually reside and engage in their business operation.
In these out-of-state scenarios, a corporate entity is typically required to designate a registered agent (a person or company designated to serve as the legal contact of record).
Another benefit of corporations is their ability to provide for unending succession. So, they may technically exist in perpetuity unless dissolved.
A corporation can be set up as a non-profit, as in the case of a charity. However, the vast majority of corporations are established with the intent to provide a return for its shareholders.
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Corporate bylaws are a vital element of a newly formed company, providing key rules and regulations for operational effectiveness. They aredrawn up and codified by the board of directors when a corporation is being formed. This document helps to ensure that a business runs consistently from its inception.
Bylaws thus become the critical document to aid the board of directors in their oversight of the corporation.
Terms included in a corporate bylaw are dictated by the guidelines set by a particular state. These typically include important information such as the following:
In most states, limited liability companies (LLCs) are required to create an LLC operating agreement. These operating agreements, essentially function as a set of corporate bylaws, offering guidelines for how an LLC operates as well as owner responsibilities. The documents are often key for responding to legal issues and are legally binding.
Typically LLC’s and corporations are not required to file bylaws and operating agreement documents with the Secretary of State office. They may, however, be requested by lenders, banks, attorneys, and potential investors for various business activities.
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An option pool consists of shares of stock reserved for employees of a private company. The option pool is a way of attracting talented employees to a startup company - if the employees help the company do well enough to go public, they will be compensated with stock. Employees who get into the startup early will usually receive a greater percentage of the option pool than employees who arrive later.
The initial size of the option pool may decrease with subsequent rounds of funding because of investors' ownership demands. The creation of an option pool will commonly dilute the founders' share in the company because investors (angels and venture capitalists) often insist on it.
The shares that comprise an option pool typically are drawn from investor stock in the company rather than the shares earmarked for investors. This may be 15%–25% of the overall outstanding shares and may be determined when the startup receives its earliest funding round as part of the overall terms put in place.
It is also possible that a company, over the course of its development and subsequent funding rounds, may establish additional option pools after the initial one is put in place. The size of the pool may be dictated or advised by the venture backers to be a portion of the pre-money or post-money valuation of the company. Negotiations over the scope of the option pool can affect the startup’s overall price. For example, investors may want an option pool offered post-money option to be priced at the pre-money valuation, which could lower the price for the company.
The shares disbursed from the option pool may be determined by the roles of the employees as well as when they are hired. For example, senior management that is brought on board near the founding of the startup may receive a percentage of the entire pool, whereas later employees in more junior roles might be granted just fractions of a percent.
The option pool grants shares that, like other types of stock options, often require a period of time before they are vested. This means the employee will not be able to benefit from these shares possibly for several years. By delaying their ability to reap monetary value from their portion of the option pool, the belief is that the employee will contribute more to the overall health and growth of the company in order to see the greatest possible gains when the shares vest.
Delivering proactive, highly personalized service is a hallmark of Equa’s value proposition to clients. In this brief Q&A, we asked customer success team members, Kyle Croyle, and Andrea Stevens, to discuss their approach to delivering exceptional service during the client onboarding stage and beyond.
What does a typical day look like for the two of you?
Kyle: While Cap Tables are a key element of what we do for clients, there are so many other areas where we can deliver value. This isn’t the type of stuff that’s taught in any school. So for our clients, a lot of it is just learning on the fly.
Andrea: We offer companies a foundation that allows them to effectively engage with their startup employees. Unfortunately, a lot of these businesses miss out on this opportunity to reinforce what they’re building.
Kyle: Agreed. The system we offer provides a great way for our client companies to build loyalty within their organization through transparency. It’s all about exposing everyone to those numbers.
What sort of problems are business owners facing these days?
Andrea: Business owners are inundated with emails and people sending them different documents. And then to make matters worse, these documents are often printed and placed in a paper file.
Maybe in a year, they’ll need to pull together an investor recap. Or maybe there’s an investor that comes on board who wants to see the Cap Table. All of a sudden the business owner has to pour through their email or other document files to try to locate all of this information.
So how exactly does Equa begin simplifying things for founders and business owners?
Andrea: They often want support in streamlining their process. We never again want them to wonder if the Cap Table they pulled off their drive is updated. Then there’s the information necessary for compliance. Some of it could be at their attorney’s office, some could be in a file drawer. Or they could have no clue as to where it is. So there are all of these nuances that onboarding at Equa is going to make so much easier for the business owner.
Kyle: Most startups do not have CFO’s. And if they do it’s a part-time CFO, maybe even an advisor. But as the founder of a company, you wouldn’t want to spend hours dealing with compliance and investor documentation, cap tables, things like that. So there is simplistic value in what we offer because that workload is being migrated over to Equa. This allows owners to focus on the important business at hand.
And how can Equa help the business owner save on costs?
Kyle: If you are a startup you may have a law or CPA firm representing you and drafting things like corporate formation documents and other stuff. But because they’re so expensive, you’ll try your best not have to turn to them for anything but the most important matters.
So what do you say to those startups who are confronted with this yet are inclined to cut a corner or two to save on expenses?
Kyle: Yes, there are companies where the mentality is essentially if we mess up or don’t complete something, we’ll ask for forgiveness later. There’s this blind hope that the SEC, FINRA or other regulatory body is not going to care. But let’s be real — the ultimate goal of any startup business is to grow and be profitable as soon as possible. But it’s equally important for these businesses, however, to recognize that everything they’re doing, running up to that hyper-growth scenario, will be uncovered, scrutinized and audited eventually. That’s where the big risk lies.
Kyle, you’ve had your own personal experiences in running a business and dealing with compliance. What was that like?
Kyle: Yes. As a founder of a company, I was scared shitless about managing everything to do with document compliance, particularly those involving investors because I’m not a lawyer. So off-loading all of this on someone like Equa would have offered some peace of mind in addition to taking a ton of actual workload off my plate.
Andrea, anything to add to this?
Andrea: A lot of entrepreneurs are of the thinking, “I’ll build this business and then I’ll sell it”. Great! But if they’ve never done an M&A, they have no clue as to the kind of due diligence they have to go through. In fact, they often do things that make them less desirable when the day comes for an acquisition. So, it begs the question of why even start a company if you’re going to fall into that trap.
Kyle: To piggyback on that, while taking a frugal approach at the early stages of a business is understandable, a company may be opening themselves up to problems down the line. They could end up paying for it financially later on by spending 10X in fees to remedy all of the things that were left incomplete.
What’s the message you’re trying to convey here for businesses?
Andrea: That while it’s hard to have the foresight to address these things early on, I believe it’s imperative for their survival and ultimate success. That’s why the pricing model we offer here at Equa is so attractive, well within a startup’s budget even if they’ve raised a little bit of money. It’s helpful in terms of saving dollars while preventing what could be costly compliance issues. We’re here to help them get that foundation right.
Kyle: You are so right, Andrea. This should be viewed as a long-term versus short term proposition for businesses. Unfortunately, many companies are trying to manage finances in a way that has a short-term effect. Eventually, they could end up paying thousands more than they would than if they’re working with us here at Equa.
So what’s the first step for a business that wants to get started with Equa?
Andrea: Currently we’re asking new clients that we are on-boarding for some core documents like bylaws, operating documents, shareholder documents, member documents, and a cap table if they have these. At that point, we’ll take those uploaded documents, review them and make sure that they’re all in place and signed. Once all of this has occurred, we’ll have a discovery (check-in) call with the client to ensure that they understand what they’re seeing before moving onto the next step.
Andrea: Well, thismight involve developing a Cap Table for them. Or assisting them with any due diligence needed around the documents they should have in place at any stage of their business.
Kyle: The goal for the customer success team is to ensure that we’re delivering as seamless of a process as possible in terms of the on-boarding. We’ll require a number of upfront documents, as Andrea mentioned, but then we work hand in hand with the client in getting that information into our tech-enabled environment here at Equa. Once all of the data is in there, there are a lot of possibilities on what can be done with it.
Any final thoughts?
Kyle: Andrea and I believe that customer success should be inherently proactive. Thus it is important for us to develop a solid understanding of your uniqueness as a client. Our emphasis is getting to know all of our clients on a deep level through our discovery and gap analysis process. Through our team skillset, we’ll be able to help a business not just set up a Cap Table but also assist in directing them to additional resources that can help the business become more profitable and feel greater peace of mind.