Simply “abandoning” a cannabis entity is not a great idea
The cannabis industry is in dire straits, perhaps even in a recession. Cannabis businesses cannot seek standard bankruptcy protections and are looking for creative ways to deal with the distressed market. As companies look to shake off unproductive assets, our cannabis group has fielded tons of inquiries about how to deal with depressions in the industry – so much so that we’ll be doing a free webinar on these issues next Tuesday, February 28.
One of the more common inquiries we’ve gotten concerns how to dissolve cannabis entities and what the effects of dissolution would be. So today, I’ll look at some of the high-level issues related to winding up and dissolving a cannabis entity, and post-dissolution consequences.
The first issue may seem obvious, but it’s surprising how often it gets overlooked: simply “abandoning” a cannabis entity is not a great idea. Instead, they should actually go through the dissolution process. A business that is simply “abandoned” (i.e., the owners don’t go through the formal dissolution process and just do nothing with the business) may still accrue outstanding taxes and other liabilities. It may be administratively dissolved (depending on the state) or even fined. There are a lot of unknowns that can be avoided by following the law and dissolving a cannabis entity.
Like basically everything else, the process for dissolving a cannabis entity varies greatly across the board. The dissolution process depends first on the state in which the cannabis entity was formed. It also may look different for the type of entity at issue. But there are some high-level threads that tend to track from state to state. Some states require the business to make an initial filing noting that the dissolution process is starting. Many do not. It is critical to understand the law of the state in which the business is incorporated. If a business is incorporated in a state that does not have one of these initial filing requirements, it would be a mistake to make the final filing up front before winding up. These are issues that a good corporate lawyer can help a cannabis entity avoid.
The next step (or in some states the first step) is to start the wind-up process. Without a doubt, a company will need to hold a vote and obtain consent from some minimal threshold of interested parties. This can change from state to state and in many cases, voting thresholds can be changed by internal agreement. So cannabis entities need to take a hard look at both state law and their corporate governance documents to determine how to start that process. If they start to wind up without getting the proper votes, someone within the company could challenge the wind-up and possibly even sue the person who improperly commenced the process.
The wind-up process is generally the most lengthy part of the dissolution process, but here too is highly fact-specific. The wind-up process is where all of the loose ends must be tied up. During the wind-up process, the company’s owners will need to figure out ways to “deal with” the debts and liabilities of the cannabis entity. Bank accounts will need to be closed, ongoing contracts will need to be terminated, tax returns will need to be paid and taxes filed, third-party and owner debt will need to be satisfied, licenses will need to be surrendered, and so on.
For companies with limited or no operations, winding up may not be too difficult. But most companies are not clean slates. Sometimes contracting parties may not be too keen to let a cannabis company off the hook. For example, if the to-be-dissolved entity has outstanding debt, the lender won’t just cancel the debt. And it almost goes without saying, but closing a company without taking care of its debts is NOT a way to avoid them and can even expose the owners to personal liability. So in this context, the lender may agree that the company can assign the indebtedness to its owners or some other entity. The more third-party liabilities a company has, the longer (and more contentious) the wind-up process is.
Given all of this, it’s usually good practice for entities to adopt comprehensive dissolution plans that set out in detail the processes for winding up and allowing officers or managers to establish reserves for liabilities that could arise either during or after the dissolution is completed. The plan may also allow the owners of the business to seek indemnity out of the reserve in the event a liability arises after dissolution. For example, let’s say ABC cannabis entity goes through the wind-up process and satisfied all known outstanding liabilities. After dissolution, a creditor comes out of the woodwork and threatens to sue the former officers or owners for an allegedly unpaid debt. If there is a reserve, the company can pay off the creditor and indemnify the officers if they are sued.
If, during the wind-up process, all liabilities are satisfied and the company still has money in the bank, it will typically pay off its owners. The process for payment of the owners should be set forth in the company’s governing documents. It may be simple pro rata payments depending on each owner’s interest. But if the company has multiple classes of equity with different distribution or dividend rights, some shareholders or members may be entitled to payment before others. It’s therefore good practice to identify distribution and dividend issues in the wind-up plan.
At the conclusion of the wind-up process, the cannabis entity’s owners or officers will submit the final filing to the Secretary of State in which the business was incorporated or organized. If the business has been registered to do business in other states, there may be required filings in those states as well. The company may also need to file final tax returns and make filings with other applicable state agencies depending on the nature of the business. If reserves have been established, they will need to be maintained for whatever period of time was specified in the wind-up plan before being distributed to the members/shareholders as noted above.
As you can see, dissolving a cannabis entity can be a pretty complicated process. It’s important for cannabis entities to understand what they need to do from the outset to not run into any hurdles while winding up. Stay tuned to the Canna Law Blog for more corporate cannabis law updates.