The BrewerLong Blog

You’re starting a business and you need a commercial location. Or maybe your business is growing and you need more space. Whatever the case, if you’re about to navigate the legal and financial minefield of a commercial lease, have an experienced attorney review the document before you sign. Here are three critical reasons why: 1. Complex zoning issues. Before you sign a lease, be sure the city and county zoning will allow you to operate your business on the site. Don’t just assume—verify. If you sign a lease without confirming the zoning, you risk being locked into years of rental payments on property you can’t use. Zoning ordinances can be tedious and nuanced. They address a wide range of issues, including the type of business (retail, restaurant, manufacturing, professional, etc.), health and safety regulations, parking, signage, accessibility and more. Check into all applicable regulations before making a commitment. If the current zoning doesn’t allow what you want to do, you may be able to obtain a variance or special exception. An attorney can help you negotiate a zoning contingency into the lease and navigate land use issues with the appropriate government agencies. 2. Terms that heavily favor the landlord. It’s likely that the landlord uses a lease has been drafted to favor the landlord and contains language that burdens the tenant with a long list of significant obligations, expenses and liabilities. For example, many landlord leases contain broad remedies the landlord can self-execute if you default on the lease while limiting the landlord’s liability or your recoverable damages if the landlord defaults. Another issue to watch for is when landlords use a standard form that contains generic terms that are not appropriate for your particular business or industry. An attorney can often negotiate a more balanced agreement that is specific to your needs and operation. 3. Get all promises in writing. In your conversations, the landlord or leasing agent may agree to certain things that are important to you, but if those points aren’t included in the written lease you sign and a dispute arises later, you have no recourse. Don’t rely on verbal assurances. An attorney can craft the appropriate language for points you need added to the lease. Be wary of a landlord who objects to your attorney reviewing their lease or who insists there is no room for negotiation. In our experience, even landlords who have a “take it or leave it” attitude become more reasonable and cooperative after they receive an attorney’s comments on the lease. Contact BrewerLong Today for A Commercial Lease Review Commercial leases are complex. An experienced contract attorney knows which lease terms are standard, which can be negotiated and which should be added to the landlord’s draft to limit your costs and liabilities, reduce risks and facilitate a smooth landlord/tenant relationship. To schedule review of a commercial lease, call our office at 407-660-2964, contact us online, or email Calla Portillo at calla@brewerlong.com.

Just because an image is on Google doesn’t mean you can use it on your website or in other marketing materials You need images for your website and other projects, such as brochures, reports, presentations, social media and so on. But original and even stock photography can be expensive. If you’re tempted to just download what you need from the internet without paying for it, don’t. Here’s why: Just because it’s on the internet doesn’t mean it’s free for anyone to use. The creators of the images own the copyright and control the use. While many creators put their work out in the public domain because they want it shared as much as possible, others want to be paid or at least want to control where their work appears. You could be sued. The copyright owner could be entitled to recover their own damages as well as any profits you may have earned from using the image—and that’s not all. If the owner simply doesn’t like the way the image was used and feels your use diminished the value of it, they can seek statutory damages in amounts ranging from $750 to $30,000—even if they didn’t suffer any monetary loss from your use or you made no profit from it. If the court finds your infringement was willful, it can increase the statutory damage award to $150,000 and you could be liable for attorney’s fees for both yourself and the copyright owner. (See 17 U.S. Code §504) You may have to remove the image from wherever you have used it. It can be time-consuming and expensive to remove the image from your website, social media accounts and printed materials and replace it with something you have the right to use. If you don’t manage all the locations where you used an image, you might not be able to recover them all, putting you further at risk of liability to the owner. Even if you know where you used it, you don’t know who else may have copied it from those sources and used it. Are You Currently Using Images You Don’t Have Rights To? What’s likely to happen if you’re using copyrighted images you didn’t pay for? It can range from nothing (if the copyright owner either doesn’t find out or chooses to not take action) to costing you so much in time and money that your company is at risk. The most likely scenario is that you’ll receive a cease and desist letter. Cease and Desist Typically, copyright infringement cases begin with a cease and desist letter which claims ownership of the copyrighted material and demands that the infringement stop and not restart. It may or may not also demand a payment of damages to settle the dispute right away, under threat of litigation if you do not comply. Often, if you comply with the cease and desist letter, that will be the end of the matter—but it’s not always that simple and it can get expensive. If you receive a cease and desist letter, you should have an attorney review it to see what the sender is demanding, determine if the demands are valid, and help you formulate a plan to comply. The cost of legal review—that is, just to have an attorney look at a cease and desist letter—can run $250-$500, which is significantly more than you would likely pay to purchase images from a reputable source in the first place. The cost of compliance with the cease and desist letter will depend on the owner’s demands. If you just have to remove a single image from your website, the cost could be minimal. If you’ve used multiple images and/or used them in multiple places, the cost could be substantial. In addition to the labor involved, you may have to destroy and replace supplies of brochures, books or even products if they contain infringing content. It’s possible you won’t be able to fully comply with the demands of the cease and desist letter. For example, if you’ve used a copyrighted image as part of a social media post, it could get shared far beyond your ability to retrieve and replace. In that scenario, you will likely have additional legal costs and the potential for damages. Note: Though this article focuses on images, the information also applies to written content, audio files, videos and other intellectual property. How to Protect Yourself from Copyright Infringement Claims The two primary ways to protect yourself from copyright infringement claims are to either create your own images or purchase images from a reputable source. When you purchase the rights to use someone’s intellectual property, you are buying a license that outlines what you can and can’t do with the material. Before you purchase images, understand the terms of service (TOS) of the seller’s website as well as the license details. These documents are often full of legalese and difficult to read, but it’s essential that you do this in case you ever need to mount a defense against an infringement claim. There are places where you can download images for free. Some are reputable (such as the Library of Congress), some are not. But free doesn’t mean unrestricted. As with purchasing images, read the terms of service and any restrictions on use that the copyright holder may have stipulated. Another issue to be aware of is that some free image sites do not vet their own image sources. People have uploaded images they don’t own to those sites. If you use one of those images, you could be held responsible, even though you were acting in good faith. Keep Track of Your Licenses Set up a system to keep track of the licenses you have purchased. You can usually do this with a simple spreadsheet. You can also include the license information in the metadata of the image file. The details you want to retain include the image itself; where it was purchased; how much was paid; and license details. You should…

What Should You Do if You Get Sued? When you own a business, getting sued is not a matter of if, it’s a matter of when. The more successful you are, the greater the chances that someone will file a lawsuit against you or your company. That’s why you need to know what to do before you hear that dreaded phrase: “You’ve been served.” First and most important: Don’t panic. Stay calm and take purposeful and immediate action. Here’s what you should do—and you should do it immediately (the same day if possible) after you are served: Read the lawsuit. You need to know who is suing you and what they allege you did or did not do. The summons will tell you the exact number of days you have to respond to the lawsuit so you know what your deadline is. Call your attorney. Even if you believe that your insurance company is going to handle your defense (more about that later), your own trusted legal advisor should be notified and kept advised as the case progresses. Put your insurance carrier on notice. Let your commercial insurance agent/broker know you have been served with a complaint. He or she will give you instructions on how to notify the insurance carrier and may assist directly in placing the carrier on notice of the claim. Important! Regardless of the nature of the claim or claims alleged in the complaint, never assume that your insurance doesn’t cover that type of claim. Notify your carrier even if you think it’s an uninsured risk because you could be wrong. Let your insurance carrier tell you whether some or all of the claims asserted against you are covered under your policy. Designate a Point of Contact Once you have contacted your attorney and placed your insurance carrier on notice of the claim, you should designate an individual within the company to be the primary point of contact for all things related to the lawsuit. Your internal point of contact should be a C-level or department-head person who reports to the CEO. This person should have the necessary authority as well as the time and ability to deal with the lawsuit. It should not be the CEO; the CEO needs to stay focused on running the company. Preserving Evidence Upon receipt of a complaint, meet with all of your department heads—particularly your IT department head—and put procedures in place to securely preserve all data which might in any way relate to the lawsuit. Contact a business litigation attorney if you’re unclear on any detail about your obligations and the process for preserving evidence. The failure to preserve data can have significant negative implications for you in the litigation. Insurance Coverage A standard insurance policy issued to business entities will protect them against liability claims for: Bodily injury (BI) and property damage (PD) arising out of premises, operations, products, and completed operations Advertising liability Personal injury (PI) liability Risks related to contracts and business relationships with partners are usually not insured. You may choose to purchase additional coverages such as employment practices liability, which provides coverage to employers against claims made by employees alleging discrimination (based on sex, race, age or disability, for example), wrongful termination and harassment, as well as other employment-related issues, such as failure to promote. The terms of your policy dictate whether claims or losses are covered. When it comes to lawsuits, there are two significant components to insurance: Providing a legal defense Paying any damages. Upon receipt of your claim, your insurance carrier will take one of three actions: Advise you that the claim is covered and the insurance carrier will provide a defense. Advise you that the insurance company believes that the claim may not be covered under your policy and they are going to reserve their rights to deny coverage later, but they are currently going to provide a defense. Advise you that the insurance company is denying coverage for the claimed loss and that they are not going to provide a defense. Once you have a statement from your carrier on the status of coverage, you will know what you are facing. The Value of Business Counsel with a Knowledge of Insurance Coverage As counsel who has experience in business litigation and insurance coverage, we can be a crucial resource to you from the moment that you are served. Having a knowledgeable attorney involved in the communications with your insurance carrier can influence the carrier’s decision in close cases. Additionally, if you find yourself with a limited amount of coverage, we have had success in getting insurance carriers to assign us as litigation counsel. That way, you can utilize the insurance dollars to defend, and maybe settle, the claim up to the amount of the coverage, and then transition to the self-paid defense of the claim with counsel that you know and trust. We can also assist you with understanding and evaluating your various layers of insurance coverage in advance of a claim. This is a service we routinely provide our clients. We’ll help you be sure you have the right coverage in the right amounts to cover both defense costs and damages. We’ll evaluate coverage limits, overlapping coverage, excess coverage (which picks up the cost of risks you’re not otherwise insured for), deductibles and more. Even though you may have a knowledgeable, trustworthy agent, it’s worth having someone who knows what’s happening in the legal world take a look at your situation. To schedule an insurance coverage review, call our office at 407-660-2964 or email Calla Portillo at calla@brewerlong.com.

Know the Legal Issues Related to These Three Employment-Related Documents Whether you’re getting ready to hire your first employee or you’ve had hundreds of people on your payroll for years, it’s essential that your employment documents work for you rather than against you. That means they need to be clearly written, comprehensive, and compliant with all applicable laws and regulations. There is a long list of documents you’ll use as you recruit, hire, manage, and terminate workers, and they will vary based on your specific industry and needs. But three important employment-related documents apply to virtually every operation: Employee handbook Work-for-hire agreements Restrictive covenants agreements Employee Handbook The employee handbook (sometimes called an employee manual or policy and procedure manual) is the document that establishes the ground rules for how you want people to conduct themselves within their capacity as your employees. Employee handbooks typically cover policies on such issues as: Paid and unpaid time off policies, including holidays, vacation, sick leave, family medical leave and other types of leave. Employee behavior, including attendance, dress code, meal and rest breaks, as well as bans on harassment and discrimination and your general expectations of employee conduct. Social media policy, including whether employees can access social media at work, the use of company information and trademarks on the social media accounts of employees and their family and friends, and how employees should respond to offensive or negative posts about the company made online by others. Compensation, including when and how employees are paid, overtime policies, and pay grade structures. Benefits, including health and other insurance coverage, other benefits you may offer, and eligibility criteria. In addition, there are likely other issues specific to your operation or industry that you may want to cover in your employee handbook. A well-crafted employee handbook eliminates misunderstandings and ambiguity regarding what is acceptable workplace conduct and what is not. It also provides the employer with a legal foundation should disciplinary action, up to and including termination, be necessary. Work-for-Hire Agreements A work-for-hire or work-made-for-hire agreement specifies that whatever materials your employees produce during the course of their work belong to the company. While this most commonly applies to intellectual property and creative endeavors such as writing, design, and photography, it’s a good idea to have every employee sign a work-for-hire agreement stipulating that whatever they produce in their capacity as your employee becomes the company’s property. Restrictive Covenants Agreements It’s important to take appropriate steps to protect your proprietary business information as well as your customer interests and relationships through the use of restrictive covenants agreements. These documents include things that could have a negative impact on your company that employees agree not to do, such as non-compete, non-disclosure, non-solicitation, and non-disparagement. It may not be necessary or appropriate for every employee to sign an agreement covering one or more of these restrictive covenants; that’s a judgment call you must make based on your specific circumstances. Two Most Common Mistakes While the complexities of employment law make creating effective documents a challenge, the two most common mistakes employers make in this area are: Not having employees sign relevant documents. If you go to the effort and expense to create various agreements and other documents, be sure every employee signs the ones appropriate to their job and status. Not understanding what the documents say. Before you ask an employee to sign your documents, take the time to understand exactly what they mean and be sure the terms are enforceable. Get a Document Checkup How long as it been since an attorney has reviewed your employment-related documents? If you don’t remember and if you’re not sure they’ll protect your company in the event of a dispute, take advantage of our Legal Sleep Aid service. I will review up to five of your documents and let you know where the red flags are and what you can do about them. Go here for complete details.

Maitland, Florida, November 13, 2017－BrewerLong is pleased to announce that Kristi L. Benson has joined the firm as an associate attorney in its Maitland office. The addition of another business attorney highlights the firm’s strategic focus on helping business owners and executives who are starting, running, growing and selling their companies. “We are excited to welcome Kristi to our BrewerLong team,” said Trevor Brewer, Partner and Business Attorney at BrewerLong. “Her technical and analytical legal experience will be a huge asset to our firm.” Benson is excited to be working alongside partners, Michael Long and Trevor Brewer, in corporate litigation, intellectual property, and general business matters. She will be assisting BrewerLong’s business clients in areas such as commercial litigation, business sale transactions, employee agreements, private loan transactions, ownership agreements and contractual negotiations. “I am thrilled to be part of this team of reputable attorneys,” Benson said. “My passion is to support business leaders in a legal capacity, allowing them to achieve their goals. I am grateful to work at a company where my core values are aligned with the firm’s mission and vision.”  Benson received her undergraduate degree from Stetson University in DeLand. Florida and her law degree from Stetson University Law School in St. Petersburg, Florida. About BrewerLong BrewerLong is committed to serving Central Florida businesses and executives as they start, run, grow and sell their businesses. For more information, please visit www.brewerlong.com.

These 10 points will help you build a Board that can take your company to the next level. Representative Democracy.  The primary purpose of the Board of Directors is to represent the shareholders, to protect their investments, and to ensure that they receive an adequate return.  Directors are elected by the shareholders to serve terms of one or more years, concurrently or staggered, as provided in the Bylaws. The Big Picture.  The Board of Directors is the highest governing authority in a company.  It is generally the Board’s job to hire, oversee and approve compensation for the Chief Executive Officer and other executives, to approve payment of dividends, and to recommend for or against major transactions affecting the shareholders. One Director, One Vote.  Actions and decisions of the Board of Directors generally require the vote of a majority of the directors.  The Bylaws might require a supermajority or unanimous approval for certain decisions.  The Board may hold live or telephonic meetings (at which minutes must be kept), or they may sign written resolutions in lieu of a meeting. Caring Souls.  Directors owe a duty of care to the company and shareholders.  They must act in an informed and deliberate manner.  Directors should have a good working knowledge of the business, its plans, and potential problems.  The Board should avoid not only haste but the appearance of haste. Trust But Verify.  In exercising their duty of care, directors may rely on information and advice provided by company executives, managers, and employee, as well as outside experts, such as attorneys, CPAs, and investment bankers.  But directors should actively question and test the information and advice they receive. Always Be True.  Directors also owe a duty of loyalty to the company and shareholders.  They must make decisions based on the best interests of the company, and not any personal interest.  Directors must first offer to the company any opportunity to that is related to the business of the company. Cured.  A director has a conflict of interest when he or she has a personal interest in a transaction to be approved by the Board.  The conflict may be “cured,” and the transaction upheld, provided the conflict is known to the disinterested directors of shareholders who approve the transaction. Inside Out.  Directors who are also employed by the company are known as “inside directors,” while independent directors are known as “outside directors.” In some sense, inside directors always have a conflict of interest (their paychecks).  For this reason, it’s good practice for the Board to have a majority of outside directors (this is generally a requirement for publicly traded companies). Committee Time.  Especially when the Board of Directors has a large number of members, it is often more effective for directors to act and make decisions in committees made up of a small number of directors.  Committees are created to focus on specific topics, like executive compensation or finances.  A committee of independent directors can be used to approve decisions for which inside directors have a conflict. Personal Judgment.  Directors are not personally liable for losses suffered by the company or the shareholders, provided they have met their duties of care and loyalty.  Even if the directors’ decisions turn out to be unsuccessful or unwise, the directors are generally protected under the so-called business judgment rule.

What you need to know before including stock options in your employee incentive program. A Range of Options. Stock options are just one form of employee incentive, all of which are intended to encourage key employees to make the company successful.  In evaluating the alternatives, there are two important questions:  What will incentivize the employees?  How much ownership should the employees have?  Don’t Believe the Tax-Free Hype. Incentive stock options (ISOs) are popular because they are believed to be tax-free for the employees.  They’re not, in most cases.  When ISOs are exercised, the “spread” (the difference between the exercise price and the fair market value of the stock) may not be subject to ordinary income tax, but it is subject to the alternative minimum tax (AMT).  Also, when the stock is sold, the employee must pay capital gain taxes on the difference between the exercise price and the sale price. Through the ISO Hoops. To avoid ordinary income tax on the grant and exercise of ISOs, specific requirements must be met.  At the time ISOs are granted, the exercise price cannot be less than the stock fair market value.  ISOs must be exercised within ten years of being granted.  After exercise, the option stock cannot be sold until two years after the date the option was granted and one year after the date the option was exercised. The Trigger Trap. Often the event that triggers the exercise of ISOs is a sale of the company.  But exercise-and-sale as part of a company sale means that the employee cannot satisfy the two-year-from-grant and one-year-from-exercise holding requirements.  As a result, the employee must pay ordinary income taxes on the difference between the option exercise price and the stock sale price.  Plain Vanilla Options. Options that are not intended as ISOs are called non-statutory options (NSOs).  Generally, the employee pays ordinary income taxes on the value of the options at the time they are granted, and the employer gets an immediate deduction for the same amount.  There is no required time limit on when NSOs can be exercised, and there are no holding requirements. Restrictions May Apply. An alternative to options is restricted stock.  Key employees are given company stock directly, but there are restrictions on voting rights, sharing in profits, or whatever the employer decides.  However, the tax laws applicable to S corporations only permit restrictions on voting.  Like NSOs, the employee generally pays ordinary income taxes on the value of the restricted stock at the time it is granted, and the employer gets a deduction.  Tax Timing. Ordinary income taxes on NSOs and restricted stock can be delayed if they are subject to substantial risk of forfeiture.  For example, restricted stock may be forfeited if the employee’s employment is terminated.  The restricted stock would not be taxed until it becomes vested.  However, the employee might choose to pay the tax early, by making an 83(b) election, if the stock is expected to go up in value. Real, Live Stockholders. Employees who exercise options or receive restricted stock are real stockholders.  They are entitled to view the company books, to vote on directors and significant transactions, and they are owed fiduciary duties.  The employer can impose some restrictions, but some stockholder rights by law cannot be limited. A Ghostly Alternative.  Another alternative is “phantom stock.”  Phantom stock is not actually stock at all.  Instead, it is a promise to pay bonuses based on increases in the value of the company stock.  Phantom stock avoids the complexity of ISOs and the stockholder rights of options and restricted stock.  On the other hand, phantom stock may not incentivize employees as much as would stock ownership.  If the name phantom stock isn’t scary enough, they’re also called stock appreciation rights (SARs).

Before you sell stock in your company, understand these 10 issues: The Other SEC.  Whatever you call it—stock, units, interests—outside investment in a business is a security.  The sale of any security is regulated by Federal and state law.  This doesn’t mean that you have to “go public” through an IPO just to sell your stock, but it does mean that you have to worry about securities regulations.  Ignore them and you might face civil or criminal penalties. Compliance Made Easy.  The sale of stock does not require full-blown (read: costly) registration with the SEC if you comply with one of the private placement exemptions.  These exemptions put limits on the total offering price, the offering duration, the number of investors, and/or the information required to be given to prospective investors.  For each of the exemptions, no general solicitation or advertising is allowed. The In Crowd.  It’s always a good idea to limit the offering of stock to “accredited investors.”  Accredited investors can presumably take care of themselves because of their net worth (at least $1 million for an individual) or their annual net income (at least $200,000).  How do you know if someone is an accredited investor?  You ask, usually by having prospective investors fill out a questionnaire. Stick to the Script.  At the heart of securities regulations is concern over what promises are made to potential investors.  It’s important that your sales pitch is in writing, which is often called a private placement memorandum (PPM).  The PPM includes all of the good and bad information about the stock being sold.  What’s the Plan?  Your PPM should go into as much detail as possible about the company’s plans for using funds raised from the sale of its stock.  This is important from a marketing standpoint (no one will give you money without a good plan), and it is also important for full disclosure.  To provide some comfort for the initial investors, PPM’s will often state a minimum amount that must be sold, or else their investments will be returned. Bespeak Caution. An important part of the PPM is the Statement of Risk Factors.  This is everything that could go wrong with the investment.  Since you’ll want your business plan to be as glowing as possible (you’re trying to make a sale remember), the Statement of Risk Factors is an essential dose of reality.  If an investor later complains about the investment, you can point to the Statement of Risk Factors.  Widgets for Sale. Your stock is a product, and your goal is to sell it.  You need to design that product with care.  Is the stock voting or non-voting?  What rights will the investor have to distributions?  What rights will the investor have upon the sale or liquidation of the company?  The design of the stock is in the Owners’ Agreement, which can include different designs for a number of classes of stock.  Me First.  A common design element for stock offered for sale is a preferential return.  Investors want to know that their dollars aren’t going straight into your pocket.  One way to assure them is to promise that they get first dibs on the company’s profits, either from operations, the sale of the company, or both.  Stock with these rights is often called preferred stock.  Be careful:  It’s a no-no for S corporations. Me Too.  Another concern of many investors is that soon after they buy their stock, the company will sell new, improved stock (with better preference rights, for instance) or sell the same stock cheaper.  To deal with these concerns, you might include preemptive rights in the offered stock.  Preemptive rights allow the stockholders first dibs on any new classes of stock the company sells in the future. Pace Yourself.  Don’t sell more stock than is absolutely necessary.  Each time you sell new stock, you have to give away more of the company profits and/or control of the company.  If you give away too much in the early rounds, you won’t have anything left when you need it.  Venture capitalists, especially, demand a lot.

Buy-Sell Agreements go by different names (Shareholders Agreement, Operating Agreement, Partnership Agreement, for example), but they all have a common goal: provide a clear roadmap for the company and owners to deal with changes in ownership, with minimal impact on the operation and value of the business. Bad Buy-Sell Agreements—those that do not minimize the impact of a change in ownership—share one or more of the following three mistakes. Mistake #1: Cookie-cutter terms that just don’t work. It’s a mistake to think that a generic Buy-Sell Agreement is just fine for every company. The terms of a Buy-Sell Agreement must fit the unique characteristics of the company. These unique characteristics may include unequal ownership interests, differing roles in the company, particular family relationships among owners, and industry-specific requirements. Unless the Buy-Sell Agreement takes into account all of the particular aspects of the company and its business, it’s likely that the Buy-Sell Agreement will fail when it is most needed. The Solution: Every Buy-Sell Agreement must be carefully prepared to reflect the unique characteristics of the company and its owners, and it should be regularly reviewed and updated. Mistake #2: Determination of the buy-out price is unreliable. Because Buy-Sell Agreements are about the buying and selling of the company’s ownership interests (stock, membership units, partnership interests, etc.), price matters. If a fixed price set in the Buy-Sell Agreement is too low, then the selling owner (or his or her family) suffers. If a fixed price set in the Buy-Sell Agreement is too high, then the buying owners or the company suffers. For this reason, it’s a mistake for the Buy-Sell Agreement to state a fixed price for the company’s ownership interest, unless the parties are required to update the price regularly. It may be better for the Buy-Sell Agreement to contain a formula to determine the appropriate price, but even a formula can lead to problems if it depends on wrong or outdated presumptions. Because of the problems associated with stating a fixed price or a formula, many Buy-Sell Agreements require an appraisal at the time of a transfer of ownership interests.  An appraisal approach might be better, but it too can suffer from problems, such as failure to specify what facts the appraisal should take into account or gaps in the procedure for determining the price by appraisal. The Solution: Whether a fixed price, formula, or appraisal, the price provision of every Buy-Sell Agreement must accurately reflect the specific nature of the company and it must be flexible and subject to periodic update. Mistake #3: No assurance that cash will be available to pay the buy-out price. Even if a buy-out price is determine appropriately, the buyer—the other owners or the company—must have the ability to pay it. Unless the Buy-Sell Agreement provides specific terms for the timing and source of paying the buy-out price, the buying owners or the company may be legally obligated to pay the whole amount immediately from operating funds. This debt obligation could cripple the company or the remaining owners. The Solution: Every Buy-Sell Agreement should specify the intended source of funds for paying the buy-out price—often including life insurance and disability insurance policies—and a reasonable time period for payment of any unreserved amount. Common Elements of a Good Buy-Sell Agreement Buy-Sell Agreements should be unique documents, reflecting the particular characteristics of the company and its owners, but good Buy-Sell Agreements share most of the following common elements. Good Buy-Sell Agreements: Prohibit transfer of ownership interests except as specifically provided; Deal with the transfer of ownership interests in the following scenarios: voluntary transfer by an owner; involuntary transfer by an owner  (caused by divorce, bankruptcy, or creditor action, etc.); death of an owner; disability of an owner; termination of employment of an owner; and irreconcilable deadlock among owners; Spell out the procedure by which buy-out may occur in each scenario; Describe the method of determining the appropriate buy-out price; Describe the source of funds for payment of the buy-out price (e.g., insurance); Describe payment terms; and Describe what should happen pending buy-out. Most important of all, no Buy-Sell Agreement is a good Buy-Sell Agreement unless it is signed by all of the owners, including persons who become owners after the Buy-Sell Agreement is originally signed. Do you have a good Buy-Sell Agreement? If you’re not absolutely sure, contact BrewerLong to have your Buy-Sell Agreement reviewed by an experienced small business attorney.

Selling a business can be lucrative but it’s complicated. Consider these points: What are You Selling?  Early in the negotiations, buyer and seller must agree on what is being bought and sold—company stock (or other equity interests) or business assets.  Ordinarily, the seller would prefer to sell the company stock, because that will make unknown company liabilities the buyer’s problem (subject to seller’s indemnification commitment). However, the seller might favor a sale of business assets because getting the cooperation of all the stockholders and option holders might be difficult. Don’t be Coy.  Be open and honest in responding to the buyer’s due diligence investigation requests.  Every company has taken shortcuts along the way which it might not want to disclose, but the consequences for misleading a buyer are much worse.  Expect to put a lot of time and work into responding to due diligence, have a good Non-Disclosure Agreement, and let the buyer have at it. The Straight and Narrow.  Avoid general, open-ended representations and warranties in the sale agreement.  Certainly, there are some issues for which seller “should know,” and reps about these issues are just about risk allocation.  But whenever you can get away with it, the seller should keep its reps and warranties as narrow and focused as possible.  “To seller’s best knowledge” is a welcome (if rarely accepted) qualifier. Run Out the Clock.  The seller should expect to indemnify the buyer for costs or losses resulting from the inaccuracy of seller’s reps and warranties.  However, the obligation to indemnify the buyer should not go on forever.  The seller should limit the time period for its indemnification as much as possible.  Often, different indemnification periods will be appropriate for different potential liabilities. Taxes as Usual.  Sale of the business will likely result in a lot of taxes.  There’s capital gains tax on the sale of the stock or business assets, which could be quite high if basis is low.  The seller is responsible for his or her own capital gains taxes, but responsibility for other taxes is negotiable.  The seller and buyer should agree on responsibility for sales taxes, documentary stamp taxes, or intangibles taxes, if they apply. Delayed Gratification.  The seller would probably love nothing more than getting a big check at the closing table, but the buyer might insist on holding back part of the purchase price.  This might be because an accurate value for the business cannot be determined until all the numbers are in for a given period.  Holdbacks are sometimes reasonable, but the seller should insist that the money is placed with an impartial escrow agent. Something for Nothing.  Remember how happy your employees were when they got those stock options?  Don’t expect them to remember now.  Unless they’ve completed the “incentive stock option maneuver” perfectly, your employees are going to have a big tax bill on the exercise and sale or redemption of their option stock.  And they won’t be happy if they have to wait on a holdback either. Unbind the Ties.  Most business owners, when the business is growing, are required to personally guaranty every bank loan, trade credit, and other obligation of the business.  The seller must be sure to negotiate a release of all of those personal guaranties as part of the sale.  If a creditor refuses to release the seller, the buyer should at least indemnify the seller for liability resulting from the personal guaranty. Trust But Verify.  Often buyers will want to pay part of the purchase price in installments over a period of time.  Now the seller needs to be the cautious trader.  The seller must conduct its own due diligence investigation of buyer’s ability to pay.  The buyer’s obligation should be documented in a promissory note (on which doc stamp taxes are paid) and secured by the purchased stock or assets. A New Hat. Buyers often insist on the seller continuing to work or consult for the business for a period of time.  This requires a separate agreement between the buyer and seller, which should be fully negotiated and documented at the time of closing on the sale.  Especially watch out for non-competition restrictions.