The BrewerLong Blog

Even small, simple operations have plenty of moving parts. Use these ten key points to keep your company running smoothly, protect your assets, and avoid litigation. The Must-Have.  Don’t go into business with others unless you have an Owners’ Agreement.  You can’t see the future, and you can’t be certain that you and your business partners (or their spouses or heirs) will always agree on everything.  Why So Formal?  Company formalities are important to limiting your personal liability for the company’s obligations.  Have separate company bank accounts, separate company financial records, separate company e-mail addresses, and whatever else needed to clearly separate the company’s life from your personal life.  If you don’t respect this separation, the courts might not either. This Time, It’s Personal.  Lenders and financing companies almost always require the owners of a closely held business to sign personal guarantees.  This means they can sue the company, the owners, or both.  Do what you can to limit personal guarantees.  If you leave the company, understand what happens to your personal guarantees (and try to terminate them). Get Secure.  Unless you get paid in full at the time goods or services are delivered, get security for future payments.  Security might take the form of an escrow deposit, a personal guarantee, a bank letter of credit, or a pledge of the purchased goods or some other collateral.  Whatever the security, have a written agreement that clearly states your rights in case of nonpayment. Business Straight-Jackets.  In many cases, restrictive agreements are enforceable (provided they are reasonable in duration and geography).  Know what restrictive agreements apply to you and the people you hire.  Use restrictive agreements yourself to ensure that the person you hire today isn’t competing against you tomorrow. Protect the Good Stuff.  You don’t have to be the latest dot-something tech company to have valuable intellectual property.  IP may include your name, slogans, website, plans, and just about anything else you (or someone else) has thought of.  If someone else develops your IP (that web designer, for instance), make sure the creator assigns all the rights to you. What’s in a Name?  Not much, when it comes to “independent contractors” or “employees.”  Whether a person is an employee (which requires tax withholding and other administrative burdens) or an independent contractor (which doesn’t) depends on what he does and how he does it.  If you can tell a person how, when, and where to do her job, she’s probably an employee. The Tax Man Cometh.  Collecting taxes and delivering them to the taxing authority is a big deal.  Employment taxes you withheld and sales taxes you collected are not yours, they belong to the government.  The government will get them, with penalties and interest (or worse!) if they’re late. Fresh Stock for Sale!  Selling equity (stock, units) in your company may seem like a great way to raise capital.  It’s also a great way to have financial investors and security regulators looking over your shoulder.  Don’t sell equity if there’s a better way, and there’s probably a better way. Here’s the Catch.  Even if you have the right written agreements, it costs money to enforce them.  Your agreements might provide that legal fees and costs go to the prevailing party (most of them should), but you won’t get that until the end (and only if you go to court).  Litigation is always an expensive last resort.

Unless you’re a sole proprietor, you need an Owners Agreement to guide your company through daily operations and special situations. Unless You’re Microsoft, You Need an Owners Agreement. Having an Owners Agreement is important for every non-public company with more than one owner. Owners Agreements go by different names—Shareholders Agreement or Buy-Sell Agreement for a corporation, Operating Agreement for an LLC, Partnership Agreement for a partnership.  Whatever it’s called, it’s essential. “We Already Have Bylaws.” Great, but they are not the same thing.  Bylaws deal with the internal management of a corporation and the relationship between shareholders, directors, and officers. Owners Agreements have a different focus: the relationship among shareholders.  The Owners Agreement is much more important for a non-public corporation.  LLCs and partnerships don’t even have bylaws. Protection From Unknown Unknowns. What happens to the business when personal tragedy strikes one of its owners?  Personal liability, bankruptcy, divorce, disability, death—any one of these events in the life of an actively involved owner can cripple the business unless precautions are taken in advance.  Those precautions belong in an Owners Agreement. Know Your Partners. You trust your business partners, but how about their creditors or ex-spouses?  An Owners Agreement is needed to ensure that the ownership interests (stock, membership units, partnership interests, whatever they’re called) do not wind up in the wrong hands. Deadlock! You and your business partners are reasonable people, but sooner or later even reasonable people disagree.  This isn’t a problem for the U.S. government or large corporations where the voting process (usually) ensures a winner, but what if there are only two owners of the company (or four, six or eight, etc.)?  The Owners Agreement can include more creative solutions to deal with deadlocks. Competition—Good for the Market, Bad for your Business. Having put time and resources into building the business, the last thing you want is for your business partner to compete against the business.  On the other hand, you might not care if your business partner has a side business. What’s allowed and what’s not in the way of extracurricular business activities should be addressed in the Owners Agreement. Like Old Fish. If an employee-owner quits or is fired, the last thing anyone needs is for her to hang around.  If she keeps her ownership interest in the company, that’s exactly what can happen.  The Owners Agreement should require a buy-out. Not the Time for Haggling. The Owners Agreement should address the purchase price and payment terms for the buy-out of an owner’s interest, whatever the triggering event.  Unless you keep loads of cash lying around—“just in case”—you or your business might suffer from an unexpected obligation (or opportunity) to cash out an owner.  By the way, how much is that ownership interest worth anyway? Bells and Whistles. Sometimes the cookie-cutter, default rules of a corporation are just fine, but often you and your business partners want things your way.  LLCs or partnerships are especially flexible and allow customization.  All this customization must be provided in the Owners Agreement. They Grow Up So Fast. As your company grows, your Owners Agreement may not fit so well (like my children’s clothes).  Every few years, it’s important to review and update the Owners Agreement to make sure that it continues to fit your company. Get Help With Your Owners Agreement As with any legal document, it’s a good idea to consult with a business attorney to draft your Owners Agreement. Contact BrewerLong today.

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.

We don’t like to think about it, but we are all going to die someday. What will happen to your company after your death? 1. The Hardest Decisions For business owners, the business is often the largest (or only) valuable asset of the estate. Who should inherit the business? How much direct control should they have over the business? What if they are bad business people? What if they don’t want to continue the business? How important is continuing the business legacy?  These are just some of the tough questions that must be answered. 2. Trust is a Must The death of the business owner is turmoil enough; that turmoil shouldn’t be prolonged by uncertainty in the probate administration of business assets. The business owner’s stock or membership interest should be titled in a revocable trust, so the successor trustee can start making business decisions immediately. 3. Business-Minded Trustees Your mother, father, brother or sister might make a great trustee when it comes to caring for your children, but you need a trustee who will be a savvy business owner like you. You can designate a special trustee or co-trustee specifically to handle the business assets. 4. Now What? What should managers and employees do the day after the business owner dies? Have a written plan of action and make sure someone at the office knows where to find it. Especially important, make sure everyone knows who calls the shots. 5. Insurance for Lost Keys After the death of a business owner, business-as-usual is nearly impossible. Business performance could suffer for weeks, months, or longer while everyone figures out how to deal with the owner’s loss. In the meantime, bills still need to be paid. Making matters worse, the owner’s death could trigger defaults on credit lines and loans guaranteed by the owner. Company-owned key person life insurance can provide additional capital to help the business get back on stable footing. 6. The Name on the Page Many businesses rely on the qualification(s) or licensing of the owner in order to stay in business. What happens when the owner—and his or her qualification(s) or license(s)—dies? There may be a grace period to find another licensed person, but this differs from industry to industry. 7. Stock Rich, Cash Poor A valuable operating business can produce a large estate tax bill, but it might not generate the cash necessary to pay the IRS. The business-owning estate might be allowed to stretch out payment of the tax bill, but it will still be a drain of much-needed cash. Life insurance can provide cash to pay the estate taxes so the business can be left alone. 8. How About a Discount? Generally, a business owned by one person has a greater taxable value than a business owned by several people. Dividing up the ownership of your business can result in discounts of as much as 40% for estate tax purposes. Gifts to family members, long-term grantor retained trusts, and installment sales to intentionally defective grantor trusts can all result in estate tax discounts. 9. No Charity for S Corps Business owners can use gifts to charitable remainder trusts to generate immediate income tax deductions and partially avoid capital gain taxes on a future sale of the business, but not if the business is an S corporation. The S corp rules prohibit stock ownership by a charitable remainder trust. 10. The Next Generation Who should inherit the business—a surviving spouse or children from a prior marriage? Often, the business owner wants the children to inherit the business, but the surviving spouse might exercise an elective share and take part of the stock. The business owner should consider having a prenuptial agreement to ensure that the business goes to the children. Contact A Business Attorney If you need help estate planning for your small business, contact the business lawyers at BrewerLong today online, or by calling 407-660-2964.