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When must a legal hypothec be published?

The date the construction work has been completed marks the commencement of the 30 day delay for registering a legal hypothec. When, however, the work cannot be completed due to the owner’s insolvency, jurisprudence states that the end of work date is assimilated to the date of the definitive abandonment of the work.

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How can a contractor protect his claim if he waives his legal hypothec rights?

The construction legal hypothec is a privilege granted by the Civil Code to persons having participated in the construction or renovation of a property. This hypothec originates with the signing of a contract, without having to publish it, and is preserved by its registration in the land register within 30 days of the completion of work. At the signing of the contract however, the owner sometimes will require the contractor, supplier or sub-contractor to waive this legal hypothec.

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Have you planned for your business succession?

The succession process consists of two major components: transfer of the decision-making power (management) and transfer of ownership (control) of the business. The challenge of intergenerational business transfers can be explained by a combination of factors, including the lack of a formal succession plan, the founder’s reticence, planning too late and the lack of clear communication. The decisions to be made are often difficult and complex, including human, financial, tax and legal aspects. A succession plan should be prepared well in advance. This is a structured step which includes several phases spread over a three to five-year period and which is often incompatible with the personality of an entrepreneur who is first and foremost an “operator”. He is focussed on day-to-day problems and has neither the time nor the desire to plan his succession.

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What are a merchant's obligations regarding the language of public signage in Québec?

The OQLF now requires that there be at least a French generic term in public signage when the registered trade-mark is in a language other than French. Public signage means any message (including the name) displayed on a sign, a notice or a display window, even if it is temporary, addressed to the public, regardless of whether it is placed inside or outside an establishment. The OQLF applies Section 58 of the Charter, which states that public signage and commercial advertising may be in French and in another language, provided that the French is clearly predominant.

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How to plan a business succession in order to avoid fiscal consequences?

As a business owner, you are no doubt reminded daily that the taxman is your principal business partner, since you share with him a significant portion of your annual income, sometimes almost 50%. This reality is that much more difficult to accept when a business owner realises an additional tax can be levied upon his death. It is therefore recommended to turn to tax experts and financial planners whose job it is to implement tax and financial mechanisms to reduce, defer and perhaps even eliminate the tax consequences upon his death or the transfer of his business.

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Is it better to sell the assets or the shares of your business?

With respect to the business owner who operates a company that is not incorporated, the answer is simple since he will always sell his assets, i.e. the goods used in the business, such as its inventory, equipment, client lists and goodwill. If, on the other hand, you operate an incorporated business that is, in fact, a legal entity, a choice must be made: sell the corporate “shell”, with or without its content. Imagine a box (corporation) which contains many items (assets). Each item can be sold while keeping the box (sale of assets) or the box can be sold with all of its contents (sale of shares). Different legal and tax consequences would apply to each option.

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Why undertake a due diligence process?

Due diligence is an important and critical component of a commercial transaction. For the buyer, this helps establish whether the targeted business is well managed and whether there might be any significant problems, if any, mainly from a financial and legal perspective. A complete and detailed due diligence is one that is well adapted to the targeted corporation’s business reality and is essential to ensuring that the negotiations, as well as the commercial transaction itself, are a success.

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What are the sources of project financing?

Financing is at the heart of all expansion projects of small or medium-sized businesses. Whether developing or launching a new product, purchasing or renting equipment or state of the art technologies, purchasing a competitor’s business or entering into a new market, obtaining the necessary financing is a requisite step.

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What are the advantages of having a trust?

The use of trusts by a business owner for tax or estate planning is still misunderstood. It is important to study the different aspects of a trust to determine whether it could be the appropriate vehicle used to hold some of your assets. The tax and other advantages that come from setting up a trust should be considered as a whole with a mid to long-term perspective. In order to benefit fully from these advantages, we recommend obtaining the advice of an expert as early as possible in the corporate life of your business. This advice should not be limited only to the creation phase of a trust assets or even in the event of a death.

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Are you interested in buying a franchise?

Before embarking on the purchasing process, take the time to meet franchisees who are already operating a business under the banner you are interested in and gather information regarding daily operations, any difficulties they have encountered and the support provided by the franchisor. If you are then still interested in this venture, there are two ways of proceeding: negotiate directly with the franchisor or purchase an existing franchise. In each case, a due diligence should be conducted which will include various points, starting with a careful review of all the documentation that comprises the franchise agreement you will be committing to. Obtain advice from experts regarding your rights and obligations, as well as the corporate structure that is best suited for this project. Naturally, taking the necessary measures to obtain the capital required for the purchase of a franchise will allow you to identify the cost of borrowing as well as the applicable terms and conditions.

What is the value of your intellectual property?

Although intellectual property is intangible, it is of significant importance during the sale of a business, the transfer of technology and financing. Intellectual property (including patents, trade-marks, copyright, industrial design, trade secrets, know-how and confidential information) does not play a prominent role in all businesses, but for many start-up companies, it is often the main asset. Constant monitoring of your intellectual property assets is an investment that will pay off over time whether with respect to competitiveness, market presence or enhanced value. Accordingly, it is to the advantage of the vendor of a business to properly manage its assets and of the seller to be diligent in evaluating the intangible property to be acquired as part of a transaction.

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What does a purchase agreement entail?

Whether purchasing shares or assets, the key component of a transaction is the purchase agreement which can be accompanied, as needed, by complementary agreements that protect the interests of both the buyer or the seller. Whether the acquisition involves shares or assets, a purchase agreement will state the number and category of shares sold or a description of the assets sold. In both cases, the parties will have to agree on the acquisition price, the terms of payment, the warranties in case of a balance of sale, and the representations and warranties required by the seller. When a buyer acquires shares, particular attention must be paid regarding the corporation’s financial situation because by acquiring these shares, the buyer is liable for all the corporation’s obligations; he “inherits” its past. When acquiring assets, the focus is primarily on the condition of the assets being purchased.

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Buying a business: What can I expect?

When deciding to purchase or sell a business, the key to a successful transaction is to be willing to embark upon a process that will require dedicated time and attention. It is recommended to prepare an action plan consisting of all the steps to be followed and to stick to the plan. Furthermore, to avoid a transaction from failing, experience has demonstrated that all parties should, from the beginning of the endeavour, be accompanied by external experts who are aware of the potential mistakes which can be made and understand all the steps that characterize a successful process.

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What are the available uses for recovery of a debt which results from fraudulent activity?

The recovery of a debt which results from fraudulent external activity or dishonest employees calls for creative thinking and the use of special recourses. The harm to the company caused by an intentional attack on its assets is often devastating.

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What are your obligations towards employees in the case of a transaction?

For the seller, it means the number of employees can only be reduced by implementing the usual rules of employment termination, i.e. by offering an appropriate severance package, and only those employees who have not yet reached two years of service can be laid off, unless they sign a release. When purchasing a business in order to continue its operations or integrating it into an existing one, the buyer must keep on all the seller’s employees at their existing conditions, whether they are active, on sick leave or on maternity/paternity leave, otherwise he may be liable to potential claims and recourses. Employees continue to accumulate their years of service, and if they have a signed employment contract, it must be respected. Any layoff or termination must be implemented according to the conditions of the contract that binds them with the seller, or according to applicable standards regarding employment termination.

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