A START-UP BUSINESS MIGHT BE WISE TO CHOOSE THE LLC AS ITS ENTITY FORM

Since tax considerations are of utmost importance in choosing an entity form, entrepreneurs should determine the advantages of beginning their business as a LLC. In particular, the applicability of the LLC structure must be examined when the entity plans to go public or merge with a public corporation.

While enjoying the benefits of a LLC prior to “going public”, the conversion of a LLC to a corporation is quite seamless.

An incorporation of an LLC can follow three forms:
1. the LLC can transfer its assets to the corporation in exchange for stock;
2. the LLC can distribute its assets to its members who then contribute those assets to the corporation in exchange for stock and;
3. the members can contribute their interests to the corporation in exchange for stock.

Of course, the incorporation of the LLC can also take place as part of the initial public offering under Section 351.

Also, the LLC’s conversion to a corporation should not prevent a subsequent tax-free reorganization under Section 368 when the corporation is acquired by a public company.

AMENDING PLEADINGS IN ILLINOIS COURTS

Section 2-616 of the Illinois Civil Practice Law provides for amendments to pleadings on just and reasonable terms before final judgment.

Loyola Academy v. S & S Roof Maintenance, 146 Ill.2d 263 provides the standard for amending pleadings in Illinois. The Loyola Academy court looked to four factors in determining the appropriateness of allowing leave to file an amended pleading:

The four factors are the following:

  1. Whether the proposed amendment would cure the defective pleading;
  2. Whether other parties would sustain prejudice or surprise by virtue of the proposed amendment;
  3. Whether the proposed amendment is timely; and
  4. Whether previous opportunities to amend the pleadings could be identified.