Buying or Selling a Business? Get the Deal Right From the Start.

Business Acquisition and Sale Law in Broward County

KEW Legal is a business acquisition and sale law firm that helps buyers and sellers review the legal terms that decide what a deal really costs. Those terms include tax liability, non-compete clauses, trademarks, written contracts and the type of business entity involved. Kristina E. Wilson is the responsible lawyer for this page.

Who needs help with a business acquisition or sale?

A business acquisition and sale attorney reviews, negotiates and closes the legal side of buying or selling a company. This service fits owners who are selling, investors who are buying, and partners who want out of an existing business.

Our offices are in Coral Gables and Sunny Isles Beach. We also represent buyers and sellers in Broward County and Fort Lauderdale, and in Miami-Dade County.

What does this service cover?

Acquisition and sale work covers the legal terms that carry risk after closing. These are the issues we review in a deal.

Tax liability that moves with the business

A buyer can be liable for the seller’s unpaid tax. Under Fla. Stat. § 213.758, a transferee of more than 50 percent of a business, its assets or its stock of goods is liable for unpaid tax the seller owes from running that business. Under Fla. Stat. § 213.758(4)(a), a transferee, or a group of transferees acting in concert, of more than 50 percent of a business, assets of a business, or stock of goods of a business is liable for any unpaid tax the transferor owes from the operation of that business, unless the transferor provides a receipt or certificate of compliance from the Department of Revenue showing no notice of audit, all required returns filed and all tax paid, and there were no insiders in common between the transferor and the transferee at the time of the transfer. The liability also does not apply if the Department finds, after an audit, that the transferor is not liable for taxes, interest, or penalties. The certificate must show no notice of audit, all required returns filed and all tax paid.

The seller also has a deadline. Under the same statute, a seller who is liable for taxes on the business must file a final return and make full payment within 15 days after the date of transfer.

Non-compete and restrictive covenant terms

A seller’s non-compete must meet a specific test. Under Fla. Stat. § 542.335, a court will not enforce a restrictive covenant unless it is in a writing signed by the person bound by it. Fla. Stat. § 542.335 reads: “In any action concerning enforcement of a restrictive covenant: (a) A court shall not enforce a restrictive covenant unless it is set forth in a writing signed by the person against whom enforcement is sought.”

The buyer must also prove a legitimate business interest, such as customer goodwill tied to the business. The buyer must show the restraint is reasonably necessary to protect that interest. If a court finds the restraint overbroad or overlong, the court must modify it and grant only the relief reasonably necessary. A covenant with no legitimate business interest behind it is void and unenforceable.

Trademarks and brand goodwill

A brand can be a major asset in a sale. Federal trademark law provides that a registered mark, or a mark for which an application to register has been filed, can be assigned together with the good will of the business in which it is used, or with the part of that good will connected with the use of the mark (federal trademark assignment statute). Several steps apply:

• The assignment must be in writing and duly executed.
• An assignment is void against a later buyer for value without notice unless it is recorded with the United States Patent and Trademark Office within 3 months after the assignment date, or before that later purchase.

Inventory and written deal confirmations

For inventory or other goods, writing matters. Under Fla. Stat. § 672.201, a contract for goods priced at $500 or more is generally not enforceable unless there is a signed record of the deal.

Between merchants, a written confirmation can satisfy this rule. The receiving party has 10 days after receipt to give written notice of objection to its contents.

LLC membership interests and operating agreements

Buying a membership interest in an LLC is different from buying its assets. Under Fla. Stat. § 605.0503, a charging order is generally the sole and exclusive remedy a judgment creditor has against a member’s transferable interest, subject to the single-member foreclosure exception.

Read the operating agreement before you sign.

Under Fla. Stat. § 620.8701, if a partner is dissociated from a partnership without resulting in a dissolution and winding up of the partnership business under s. 620.8801, the partnership must cause the dissociated partner’s interest in the partnership to be purchased for a buyout price determined pursuant to subsection (2). Those laws cover partner rights, dissolution and partner disputes.

Fraudulent transfer risk

A sale can be challenged by the seller’s creditors. Under Fla. Stat. § 726.105, a transfer is fraudulent as to a creditor if the seller made it with actual intent to hinder, delay or defraud that creditor. A transfer can also be fraudulent if the seller received less than reasonably equivalent value while its remaining assets were unreasonably small for the business.

In determining actual intent under the first test, courts may weigh factors such as whether the transfer went to an insider, whether it covered substantially all of the seller’s assets, and whether the seller became insolvent shortly after. Fla. Stat. § 726.106 adds a separate rule for transfers to an insider on an earlier debt, which applies only if the debtor was insolvent at that time and the insider had reasonable cause to believe it.

Federal premerger notice

Some deals need federal review before closing. The federal premerger notification statute bars any person, unless an exemption applies, from directly or indirectly acquiring voting securities or assets of another person until both persons (or, in a tender offer, the acquiring person) file notification and the statutory waiting period expires, where either party is engaged in commerce or in any activity affecting commerce and the acquiring person’s resulting holdings of the acquired person’s voting securities and assets meet the statute’s conditions. The dollar thresholds are adjusted and published, so the current figures should be checked for each deal.

Arbitration and attorney’s fee clauses

Many sale agreements include an arbitration clause. Under Fla. Stat. § 682.02, an agreement in a record to arbitrate is valid, enforceable and irrevocable, except on grounds that exist for revoking any contract. The court decides whether an arbitration agreement exists.

If the contract allows attorney’s fees to a party that must enforce it, Fla. Stat. § 57.105 lets the court also allow reasonable fees to the other side when that side prevails.

Filing deadlines and limitation periods

Deadlines to sue differ by claim. Under Florida law, certain claims, including fraud and some contract claims not based on a written instrument, fall within a four-year period. Timing matters, so raise any concern early.

Entity records matter too. The Florida Division of Corporations (Sunbiz) is the official source for registration, filing and status of Florida business entities. The IRS business structures guidance explains how entity structure affects tax, sale and succession.

How the acquisition and sale process works

A deal moves through clear stages. Each stage has its own legal steps.

1. Free first consultation. We talk through the deal, the parties and your goals. Our first consultation is free, confidential and without obligation to continue.
2. Document review. We review the purchase agreement, operating agreement, tax status, existing contracts and any trademark registrations.
3. Risk list. We identify gaps, such as missing tax clearance, unsigned covenants or an unrecorded trademark assignment.
4. Drafting and negotiation. We draft or revise the terms that protect your position, including covenants and assignments.
5. Closing. We coordinate signed writings, required filings and any recording with the USPTO.
6. After closing. A seller who is liable for taxes on the business must file a final return and make full payment within 15 days after the date of transfer. Trademark recording should happen within 3 months. Some clients keep us on as outside general counsel after the deal. Trademark recording should happen within 3 months. Some clients keep us on as outside general counsel after the deal.

Why clients work with KEW Legal on acquisitions

• The practice focuses on business acquisitions and sales, along with related work in partnership disputes, succession planning, commercial leases and outside general counsel for businesses.
• Kristina E. Wilson is the responsible lawyer. Our staff supports the practice’s day-to-day work.
• Our offices are in Coral Gables and Sunny Isles Beach, and we serve clients across Broward County and Fort Lauderdale.

Common questions about buying or selling a business