An Owners Agreement is a document between the owners of a company about how to manage the business. Sometimes these documents are called Buy-Sell Agreements or Shareholders Agreements (depending on the structure of the business). No matter the name, the goal is the same: to keep all the owners on the same page about running the company, including deciding what happens when one leaves. It is critical to have a well-drafted Owners Agreement to guide your company. You must make sure any ownership transitions are smooth and handled efficiently. Here are eight of the most important reasons you should have an Owners Agreement: 1. Bylaws and Operating Agreements won’t cover you. Bylaws are a necessity for corporations, just like Operating Agreements are for LLCs and partnerships. But, they’re not Owners Agreements. Bylaws and Operating Agreements deal with the internal management of the business, like rules and regulations for how it operates. Bylaws also govern the relationship between shareholders, directors, and officers. Although LLC Operating Agreements can touch on some of the same issues as an Owners Agreement, they aren’t as detailed. Owners Agreements have one specific focus: the relationship among the owners, and especially transitions in ownership. The owners could be the members and managers of an LLC, the partners in a partnership, or the shareholders. The relationship between the owners is by far the most important, which is why Owners Agreements are a necessity. 2. You need a plan for unexpected events in any of the owners’ lives. What happens to the business when an unexpected event strikes one of its owners? Life often changes in an instant. Events like bankruptcy, divorce, disability, or death could fall upon any of the owners at any time. If there is no plan in place for such an event, the business could crumble. A well-drafted Owners Agreement can help guard against any unexpected event by making sure all relevant parties know in advance how to handle it. 3. You need to protect the business. In an ideal world, all business partners would be completely trustworthy. In the real world, that’s not always the case. Your business partners may have debts you didn’t know about. They may also have ex-spouses who try to go after the business in the divorce. With an Owners Agreement, you can plan for these issues and ensure that the ownership interest does not wind up in the wrong hands. 4. You’ll avoid deadlock. You and your business partners may be reasonable people, but sooner or later, even reasonable people can disagree. In a small business, like a partnership or LLC (sometimes, even in small corporations), decision deadlock can cripple the business. Have an Owners Agreement drafted well in advance to set up creative solutions for future deadlocks. 5. You can spell out what the owners are (and aren’t) allowed to do. Having put time and resources into building the business, the last thing you want is for your business partner to turnaround and compete with it. On the other hand, you might not care if your business partner has a side business (in case you want one too, for example). An Owners Agreement can help the owners agree on what should and shouldn’t be allowed, in terms of competing with the business you’ve built together. 6. You can remove former employee-owners. If an employee-owner quits or is fired, you may not want to allow that person to maintain their ownership interest. Without an Owners Agreement, however, you might be facing this awkward situation. Your Owners Agreement can have a clause that requires a buyout for any employee-owners who leave the company. In this way, you’ll always have owners around who remain invested in the company. 7. You’ll set the details around the buyout. The Owners Agreement can and should address the purchase price and payment terms for the buyout of an owner’s interest. You or your business might suffer from an unexpected obligation (or opportunity) to cash out an owner. You’ll want to make sure the Owners Agreement has set a method for valuing the ownership interest and funding the buyout. 8. You won’t fall into your state’s default rules. Sometimes, a state’s business default rules are just fine, but more often, you and your business partners will want things your way. In an Owners Agreement, you can fully customize your business. If anything ever goes wrong, you can also ensure that you don’t fall into non-favorable state default rules. Having a well-drafted Owners Agreement at the beginning of your business’ life is just the first step.  As your company grows, your Owners Agreement may not fit so well. That’s why it’s essential to review and update the Owners Agreement every few years to make sure that it continues to make sense for your business. Whether a business grows and thrives depends on the relationship among the business’s owners as much as any other factor. Having an Owners Agreement especially prepared for the owners is key to their relationship. Business Attorney Trevor Brewer GET HELP WITH YOUR OWNERS AGREEMENT Owners Agreements are complex documents. An experienced attorney can help you and your partners navigate the waters of starting your business together. For help with your Owners Agreement, call our office at 407-660-2964, contact us online, or email us at

Whether you’re just starting or you have an existing company, you may be considering forming an LLC. Here’s what you need to consider before you do: 1. Corporate Gymnastics LLCs are a flexible form of business entity with fewer mandatory rules than apply to LLCs than to corporations or partnerships. However, this flexibility means that all of the details governing each LLC must be spelled out in long, complicated Operating Agreements. 2. Limited Liability Like corporations and (some) partnerships, LLCs offer their members limited liability. Each member of an LLC may lose his or her investment in the company, but the member’s other property should not be subject to the LLC’s liabilities. Of course, creditors know this too, so members are often required to personally guarantee loans and other obligations of the LLC. 3. The Rule Book An LLC and its members are governed by the Operating Agreement. The Operating Agreement should cover such topics as management of the LLC, capital contributions from the members, distributions of net profits, and ultimate liquidation of the company.  4. Upper Management An LLC can either be managed by its members or managed by one or more managers who might or might not be members. Even where an LLC is manager-managed, there are usually some decisions that must be made by the members (such as a sale of the LLC). LLCs do not usually have traditional corporate officers (like president, treasurer), but they can. 5. Ante Up The investments members make in the LLC are called capital contributions. Capital contributions can be cash or anything of value. A key term of the Operating Agreement is whether existing members can be required to make additional capital contributions. 6. Pride of Ownership Unlike corporations, in which ownership is evidenced by stock, ownership in LLCs may be denominated and evidenced in many different ways. A member might simply own a percentage interest recorded only on the LLC’s books, or a member might own membership units or shares that are represented by certificates.  7. Returns on Investment Net profits of the LLC are generally paid to some or all of the members in the form of distributions. When and how distributions are made should be addressed in the Operating Agreement. Members can divvy up the profits in almost any way imaginable. 8. Pick Your Poison By default, LLCs (those with more than one member) are treated like partnerships for income tax purposes, but they can instead elect to be treated like corporations (even S corporations). LLCs with only one owner are completely ignored for income tax purposes, meaning that they are lumped together with their owners. 9. Taxing Calculations The taxation of partnerships, and therefore most LLCs, is very complicated. The LLCs do not pay taxes themselves (in most cases), but they do have to file tax returns. Net income passes through to the LLC’s members in the form of allocations to member capital accounts, which must comply with very detailed tax rules. Bottom line: have a good CPA. 9. Charge!  When a corporate shareholder is sued, it’s possible that a judgment creditor could end up controlling the shareholder’s stock, including the right to vote. In an LLC, the judgment creditor of a member is only entitled to a charging order, which is the right to receive distributions when and if paid. The judgment creditor of an LLC member cannot participate in the management of the LLC.

Joint ventures let you take advantage of the fundamental concept of strength in numbers. These ten points will guide you as you create and define your joint venture. Synergy. “Joint venture” is a generic term referring to any business activity carried on with the active involvement of more than one company or person who share the profits or losses. Importantly, the term “joint venture” means something different to everyone. Proposing a joint venture is the beginning of the negotiation, not the end. What’s the Point? In general, a joint venture can be appropriate when several parties can combine their unique skills, opportunities, or attributes to meet some business goal that could not be met by any of the parties acting alone. Every joint venture should have a specific purpose—the more specific, the better—and the specific purpose should be described in a written joint venture agreement. A joint venture differs from a general business company because of its specific, limited purpose or term. Define the Relationship. A joint venture can be structured as a contractual relationship or a partnership, or something in between. There are several important differences, including taxation, sharing of liabilities, and authority to bind the parties. Given the particular purpose of the joint venture, one structure or the other will be more appropriate. Feet to the Fire. Each party to a joint venture should have specific obligations and duties drawing on the particular skills, opportunities, or attributes of the party. This is the purpose of the joint venture, so the obligations and duties should be spelled out in great detail. The written joint venture agreement should also spell out how each party’s performance will be evaluated and what happens if a party does not deliver. How Does It End? The written joint venture agreement should specify when the joint venture will end. The end can either be a specific date or the happening of a specific event. Unlike a general business company, the joint venture should not be expected to continue for an indefinite period, unless the joint venture agreement includes a mechanism for the parties to terminate the joint venture. Joint Custody. Intellectual property is often produced by a joint venture. Who owns it? The written joint venture agreement should be specific about who owns any intellectual property. If the parties will jointly own the intellectual property, the joint venture agreement should describe how the intellectual property will be used during and after the joint venture. The Fruits of Labor. The manner in which parties to the joint venture share profits and losses is closely related to whether the joint venture is closer to a contractual relationship or a partnership. In a contractual relationship, each party keeps the profits or bears the losses from its own contribution to the joint venture. In a partnership structure, the profits and losses of the joint venture are aggregated and shared by the parties. Bullet Points. Because joint ventures are very specific, very customized relationships, the parties should focus on negotiating the key terms of the joint venture before producing a formal written joint venture agreement. A Term Sheet, Letter of Intent, or Memorandum of Understanding is a good way for the parties to focus in on the key terms without getting bogged down in details. Joint Venture Personified. If a joint venture will be structured as a partnership, it is probably best for the parties to create a new limited liability company (LLC) to embody the joint venture. Structuring the joint venture as an LLC can help the parties with the management of the joint venture, the sharing of profits and distributions, and the filing of tax returns. Is there a Better Way? While joint ventures can be profitable relationships, there may be a better way. Each party should ask some important questions:  Why will our ordinary way of doing business not work in this situation? What new or different risks will we face from the joint venture?

If you’re looking for ways to raise capital for your company, you may consider crowdfunding. These ten facts will help you decide if crowdfunding is right for you. If you need help deciding what is best for your business, contact the business attorneys at BrewerLong today. 1. Come Together Republicans and Democrats in Congress came together to pass the Jumpstart Our Business Startups (JOBS) Act of 2012, and President Obama signed it into law on April 5, 2012. The stated purpose of the JOBS Act is to ease the burden on smaller companies looking to obtain capital from public and private sources. The JOBS Act makes crowdfunding legal. 2. Who Needs a Mil? The newly created crowdfunding exemption allows a small company to sell up to $1.07 million worth of the company’s stock or other ownership interests within a 12 month period. 3. It Takes a Crowd. Crowdfunding investors are limited in how much they can invest in each company. For investors with annual income or net worth less than $107,000, the limit is $2,200, 5% of annual income, or 5% of net worth, whichever amount is greatest. For investors with annual income or net worth of $107,000 or more, the limit is $107,000. The numbers are set to adjust for inflation every five years. 4. A Portal to Jump Through. Companies can’t tap into the crowd on their own. Crowdfunding offerings must be conducted through a registered broker or a registered funding portal. FINRA approved funding portals include SeedInvest, NextSeed, MicroVentures, and Wefunder. The broker of the funding portal is responsible for ensuring that crowdfunding investors are qualified and provided information about the company. 5. Keep it Quiet. Companies cannot advertise their own crowdfunding offerings, except to direct potential investors to their designated broker or portal. 6. Hold On Tight. Crowdfunding investors are required to hold onto their investment in the company for at least one year unless they sell to the company, an accredited investor, a family member, or as part of an IPO. 7. Let the Sunshine In. Companies must file information with the SEC, including the names of directors, officers, and majority shareholders, a description of the company’s business, a description of the company’s financial condition (including other offerings), and financial information. The same information must be provided to each crowdfunding investor. 8. Rights for All. Each crowdfunding investor will have rights in the company provided by state law and organizational documents. These rights might include the right to vote on the election of directors and certain actions, the right to review the company’s financials, and the right to demand a fair repurchase price. The SEC’s anti-fraud regulations also apply to crowdfunding offerings. 9. So Long “S”. S corporation status generally requires that a company have no more than 100 shareholders and excludes most other companies as eligible investors. A company with these restrictions might have a hard time raising significant capital through crowdfunding. 10. What Else You Got? Crowdfunding is not for every company. Fortunately, there are numerous ways for a growing company to raise need capital, including “friends and family” financing, commercial and private loans, intrastate offerings, and federally exempt private offerings. A company should review all of the alternatives before deciding on crowdfunding.

Though you can be in business without setting up a legal entity, we don’t recommend it. The following points will help you decide on the best entity for your operation. 1. Human Error Carrying on business without a business entity means that each of the owners is 100% personally responsible for all of the business’s liabilities.  That isn’t good. A business entity [corporation, limited liability company (LLC), or limited liability partnership (LLP)] protects the owners from personal liabilities, except professional liabilities and personal wrongdoing. 2. Pass the Buck The tax code divides corporations into C corporations and S corporations.  The main difference is that with C corporations, the corporation pays income tax on its net income and the shareholders also pay income tax on dividends. With S corporations, such as LLCs and LLPs, only the shareholders pay income tax on the corporation’s net income. 3. Exclusive Owners’ Club S corporations have strict rules about who can be shareholders:  no C corporations, LLCs, or LLPs; no trusts (with a few exceptions); no non-US residents. S corporations may have a maximum of 100 shareholders.  Even if you’re not planning to have these types of owners, the S corporation owner restrictions can limit (or make more costly) future opportunities to sell stock to new investors or take advantage of common estate planning techniques. 4. Charge! It is possible for creditors of a corporation’s shareholder to take the corporate stock in satisfaction of their debts.  Generally, the same is not possible for interests in LLCs or LLPs.  Creditors of an LLC member or LLP partner are limited to a charging order, which means that creditors can receive distributions from the LLC or LLP, but they do not get control. 5. Head of the Class For C corporations, LLCs, and LLPs, it is possible to create different classes of stock or interest that entitle the owners to different rights.  For instance, classes can differ on distributions, participation in management, and liquidation rights.  S corporations cannot have different classes of stock, other than voting and non-voting stock. 6. All Good Things Every partner in a partnership (whether LLP or general partnership) has the right to withdraw from the partnership at any time.  It may be a breach of the partnership agreement, but a partner’s withdrawal might still result in the dissolution of the partnership.  Corporation shareholders and LLCs members do not have the right to withdraw unless this right is provided in an owners’ agreement. 7. Gainful Employment Profit distributions from an S corporation are not subject to employment taxes, provided owners who work in the business are also paid a reasonable (taxable) wage.  Profit distributions to the working owners of an LLC or an LLP are subject to employment taxes, whether or not the owners also receive wages. 8. Healthy, Wealthy and Wise Payments for health insurance and other fringe benefits are generally deductible by a C corporation, regardless of the recipients.  Health insurance and fringe benefits provided to the owners of an S corporation, LLC, or LLP are not deductible generally. 9. Keep it Simple A separate income tax return must be filed for each separate business (except a sole proprietorship or 100% subsidiary), even though S corporations, LLCs, and LLPs generally do not pay taxes themselves.  The corporate income tax returns are relatively simpler than the LLC and LLP income tax returns because LLCs and LLPs are governed by complicated rules about the allocation of profits and losses. 10. Changing Course If circumstances require a change in the choice of entity, it’s almost always possible, at a price.  The laws in most states now have simple filing procedures for converting from one type of entity to another.  That’s the easy part.  But conversion might trigger taxes, especially when converting from a corporation to another entity. No matter what business entity you choose, it’s a good idea to consult with an attorney. You can contact us online or by calling 407-660-2964.


Maitland, Fla., August 28, 2017-BrewerLong announces their renewed focus and commitment to being one of Central Florida’s best business law firms, meeting the needs of business owners and executives as they start, run, grow, and ultimately sell their businesses. “Our firm has been in business for almost ten years, and we have come to realize our unique strengths and values,” said founding partner and attorney Trevor Brewer. “Our clients look to us as problem solvers who alleviate their business headaches. Our extensive network of independent service providers allows us to partner with other industry experts when our clients need more than just a business attorney. We utilize a holistic team approach so we can provide the right solution to solve our clients’ problems.” This renewed focus allows BrewerLong to partner with business owners and executives through every step of the business life-cycle. By focusing on the various seasons of a business – birth, growth, maturity, and sale – BrewerLong delivers exceptional legal services for these clients. BrewerLong will continue to embrace its distinct role as a connector and influencer in the Central Florida business community. The firm is well known for its involvement in various associations, chambers, and nonprofits, and has a longstanding commitment to hosting their own professional alliance groups and educational workshops. This dedication to building relationships and connecting professionals is vital to BrewerLong’s proven ability to provide an exemplary client experience. Because of BrewerLong’s renewed focus on serving businesses, estate planning will no longer be a focal point for the firm. Estate planning attorney, Shannon R. Campbell, has left the firm to continue her legal practice as a sole practitioner, meeting the needs of individuals and families in the areas of estate planning, probate and elder law. “We have greatly enjoyed our time practicing with Shannon,” said Trevor Brewer. “She will continue to be a valued member of our extended professional network and we wish her success in her practice.”

Buying a business is a great way to hit the ground running as a business owner. Understanding these ten issues will help reduce your risk and maximize your profits when you buy a company. 1. The Next Right Step After agreeing in principle to buy the business (through a Letter of Intent, Term Sheet, or handshake), the buyer and seller must decide on what comes next. The seller might favor negotiating and signing the purchase agreement, followed by a period of due diligence investigation, followed by a closing. The buyer would probably prefer to take care of the due diligence first, and then “sign and close.” 2. What are You Buying? Stock or assets?  The seller will probably want to sell the stock (or other company ownership interests) of the target company, but this exposes buyer to greater risk from liabilities arising prior to the sale. The buyer might prefer to buy all the business assets, but valuable contracts and rights belonging to the company might be subject to transfer restrictions, making an asset purchase difficult. 3. Says Who? It is important to know, as early as possible, whose approval is required for the transaction.  Certainly, the stock (or other equity) owners of both buyer and target company, but what about option holders?  What about the target company’s lenders, landlord, or other contract parties?  What about government agencies? 4. Kick the Tires The most important step in the purchase process is a thorough due diligence investigation of the target company.  Insist that the seller answer all of your questions and let you review every contract, record, and detail about the target company. The purchase agreement should make the seller liable for misleading the buyer, but it’s easier to do the due diligence up front than to rely on seller’s contractual obligation. 5. On the Hook The purchase agreement should include detailed representations and warranties from the seller that the target company is clean, except for “warts” that are specifically identified and acceptably dealt with.  The purchase agreement should also explicitly provide that the seller will indemnify the buyer for any losses or costs resulting from an undisclosed “wart.” 6. Get Back. Representations, warranties, and indemnification are a must, but they only give the buyer the opportunity to sue seller over any breach of the purchase agreement or liability not assumed by the buyer.  Lawsuits are never much fun, and the results can be surprising. A safer means of protection is to hold back payment of part of the purchase money (or put it in escrow) until the indemnification period is over. 7. Taxes for All You know that seller will pay capital gains taxes on the sale of the stock or business assets, but the buyer might be liable for taxes as well. Purchase of certain business assets (especially vehicles) might give rise to sales taxes.  Purchase of real estate will require documentary stamp taxes, and payment with a promissory note may trigger intangibles taxes.  Who pays these taxes should be negotiated. 8. Thanks, Internal Revenue Code An election under IRC Section 338(h)(10) allows the buyer to purchase corporate stock but the seller to effectively sell the business assets.  This takes the tax sting out of a stock purchase by allowing the buyer to allocate the purchase price to the basis of the business assets. 9. Stay or Go Should the seller be required to continue working in the business after the transaction?  Don’t expect sellers to work as hard for the buyer as they did when it was their company.  On the other hand, the seller has valuable information about running the business. 10. This Ain’t a House Beware a purchase contract that is no more than a broker’s form real estate contract with “Business” written at the end.  These contracts don’t protect buyers at all.  In fact, they mostly just protect the broker.  You need a real purchase agreement (and a real business attorney). Contact us today online or by calling 407-660-2964.

Thinking about the future of your business as an entrepreneur can be mentally tiring. It can be anxiety-inducing to picture a day when you might not be running your business. Not only that, the day-to-day of your business operations may be consuming all your time. Unfortunately, estate planning for your business isn’t something you can ignore. If you’ve worked hard to create and grow your business, the only way to make sure it is taken care of after you’re gone is to think critically about the business’ future. Luckily, there are ways to make this process easier. Handling each piece of your estate planning step-by-step will make it manageable. Here, we’ll go over ten essential estate planning tips for you as a business owner. 10 Essential Estate Planning Tips For Business Owners Finalize your decisions about the business’ future. Organize and update your records. Speak to all parties who will be impacted by your choices. Get your life and disability insurance in order. Decide whether you need a Buy-Sell Agreement. Assess the tax situation for your business. Create a will. Set up an estate plan. Draft a succession plan. Plan for updates to all your documents. 1. Finalize your decisions about the business’ future. Before you can do any drafting on your estate planning documents, you should take the time to think about your decisions. You’ll have many questions to answer, such as: Who should inherit the business? What if your first choice doesn’t want to continue the business? Are your kids interested in inheriting the family business? Do you need to set up a trust? Where can you find reputable attorneys and financial advisors if you don’t have a team already? How will the business transition after you aren’t at the helm anymore? These questions may not be easy. But they need answers so you can begin setting up your comprehensive estate plan. 2. Organize and update your records. If you are the only person that knows where your business records are, the people who take over will have a hard time. Take some time to locate and organize your business files. If you don’t have an easy filing system, fix that now. Some of the important records for you to maintain and arrange for your successors are as follows: Your business plan State-filed documents, such as Articles of Organization or Incorporation Your Operating Agreement, if any Financial records and statements Tax returns Insurance policies 3. Speak to all parties who will be impacted by your choices. Plan time to have conversations with all parties involved in your estate plan. Although many people first draft the documents and then tell the affected parties, it’s better to do it the other way around when a business is involved. At this stage, you’ll get an understanding of who may not want to take on the roles you had envisioned for them. You’ll also find out if there are any parties you missed who would be willing to handle more responsibility. Beyond that, you’ll be able to clue your family into your wishes, which is an integral part of all estate planning. 4. Get your life and disability insurance in order. As a business owner, you’ll need to think about how to provide for both your family and your business when you’re gone. Life insurance is a good idea for anyone planning their estate. For business owners, it becomes even more critical, because it could lead to a significant financial payout when your family needs it most. You should also consider purchasing disability insurance, as it can help if an unexpected disability comes up. Apart from purchasing general life and disability insurance and naming your family as beneficiary, you’ll also want to purchase a different type of life and disability insurance policy for your business. This is called a “key person” policy. With a key person policy, you can name your business as the beneficiary. These policies provide payouts when a “key person” in the company passes away or experiences a disability. This money could be very valuable for your small business. 5. Decide whether you need a Buy-Sell Agreement. If your business has multiple owners, you may need a Buy-Sell Agreement. A Buy-Sell Agreement is a document through which the owners of a business come together and decide what happens in case one of them can no longer participate in the company. Generally, the current owners have a right of first refusal on purchasing any ownership interest that has become available. A Buy-Sell Agreement can be very complicated, however, so it’s a good idea to get an attorney’s help. 6. Assess the tax situation for your business. At this stage, you should sit down with an accountant and tax attorney to discuss how you can best insulate your family and your business from an unreasonable tax burden. The right team can help set up your estate so that inheritance and estate taxes are minimized. You may also wish to discuss any long-term savings accounts or special investments you have. These will also have to flow to your family quickly and efficiently when needed. 7. Create a will. Now, this stage is where the heavy lifting of estate planning begins. After you’ve made your decisions, it’s time to draft your will. A will memorializes the decisions you’ve made for your estate. Without a will, your property would be passed down based on the laws of your state. Not only that, but without a will, your property can get tied up in probate for months on end (if not years!). A will isn’t a document that you should handle alone. An experienced estate planning attorney can make sure everything is as you want it to be, as well as counsel you along the way. 8. Set up an estate plan. Drafting a will is only part of planning for your estate. You must also have a Power of Attorney and a Healthcare Directive. A Power of Attorney gives another party the right to…