Miami Mergers and Acquisitions Lawyer
A merger or acquisition can involve buying assets, buying stock or LLC interests, or combining companies into a surviving entity. Aaron Resnick, a Miami business attorney, reviews what transfers, which approvals are needed and which liabilities remain. He advises companies, entrepreneurs and investors on the deal and the work that follows closing.
Aaron Resnick, a Miami business attorney with Law Offices of Aaron Resnick, advises companies, entrepreneurs and investors on mergers and acquisitions in Miami and throughout Florida.
Why Do Companies Merge With or Acquire Another Business?
A merger or acquisition can be a faster way to grow than building alone. A deal can expand a company's reach and capabilities, open a new geographic or product market, diversify its product lines, bring in skilled people, technology and intellectual property, and lower costs through economies of scale. Aaron Resnick advises the buyer or the seller on the terms.
For how a Florida merger is planned, approved and filed, see the firm's Miami mergers and acquisitions attorney page. This page covers the choice of structure and what Florida law attaches to each one.
Should the Deal Be an Asset Purchase, a Stock Purchase or a Merger?
The structure affects what changes hands, which approvals are required and how liabilities are handled. Aaron Resnick compares an asset purchase, a stock or membership interest purchase, and a merger against the client's goals. The agreement matters, but it cannot by itself eliminate a liability that the law places on the buyer.
| Structure | What the Buyer Gets | Who Must Approve | Watch For |
|---|---|---|---|
| Asset purchase | Specified assets and agreed liabilities, subject to liabilities imposed by law. | A Florida corporation's sale of all or substantially all property outside its usual business generally requires board and shareholder approval. | Unpaid state taxes, transfer consents, licenses and excluded liabilities. |
| Stock or membership interest purchase | An ownership interest in a company that retains its assets, contracts and debts. | The selling holders and any approvals required by governing documents or applicable law. An LLC transfer does not automatically give the buyer membership or management rights. | Transfer restrictions, changes of control, admission as an LLC member and securities law. |
| Merger | The surviving entity holds the merging entities' property and owes their debts. | For a Florida corporation, board approval and generally shareholder approval. For an LLC, the default member vote can be changed by its operating agreement, subject to statutory protections. | Required consents, personal liability and appraisal rights. |
Asset Sales
A Florida corporation selling all or substantially all its property outside its usual and regular business generally needs board and shareholder approval under chapter 607, Florida Statutes. The board first approves a resolution and submits the sale. Disposals during dissolution follow separate provisions.
A sale in the usual and regular course generally does not need shareholder approval unless the articles say otherwise. Other statutory exceptions also require review. An asset purchase can still expose a buyer to the seller's unpaid Florida business taxes, even when the agreement says the buyer is not taking that debt.
Stock and LLC Interests
A purchase of existing stock changes ownership, not the company's identity. Aaron Resnick checks transfer restrictions, required consents and clauses triggered by a change of control, including the company's contracts and licenses.
Under chapter 605, Florida Statutes, a transfer of an LLC's economic interest alone gives the buyer distribution rights, not automatic management or information rights. Admission as a member follows the operating agreement or another statutory route. Aaron Resnick checks what the seller can transfer and what the buyer needs to become a member.
Merger Votes and Liabilities
A Florida corporation's plan ordinarily starts with board adoption and then shareholder approval under chapter 607. Exceptions can dispense with a shareholder vote when their conditions are met. When the merger takes effect, the survivor takes the merging entities' property and liabilities; its own existing liabilities remain too.
The default Florida LLC merger vote is a majority in interest of the members under chapter 605. The operating agreement can change that default, but cannot override the statute's separate protection for a member who will face personal liability for later company debts.
That liability normally requires each affected member's approval in a record. The statutory exception requires company rules in a record allowing fewer than all members to approve, plus the affected member's prior consent or vote for that rule, or membership beginning after its adoption.
An LLC merger also vests property and liabilities in the surviving entity. Aaron Resnick checks each entity's governing law and documents rather than treating every merger as a vote under the same rule.
Appraisal Rights
An eligible corporate shareholder may obtain payment of fair value through appraisal rights under chapter 607 after specified mergers or asset sales. Rights depend on the transaction, the shares and the statutory exceptions; they do not arise merely because an owner dislikes the deal.
Limits include certain unchanged shares, specified cash asset sales followed by distribution of proceeds, and many publicly traded shares. Some transactions involving insiders restore rights otherwise excluded by the public market rule. Preferred shares can have additional limits, so the share terms also matter.
For a qualifying action submitted to a shareholder meeting, preserving appraisal generally requires written notice before the vote and not voting the shares in favor. Written consents and specified tender offers have their own requirements. LLC members have separate appraisal rules, including limits and permitted waivers that must be checked before approval.
Securities in the Deal
Stock is a security under chapter 517, Florida Statutes. In connection with an offer, sale or purchase, the chapter prohibits obtaining money or property through material false statements or misleading omissions, directly or indirectly. This protection also reaches securities and transactions exempt from registration; an exemption is not permission to mislead.
Aaron Resnick handles securities matters for investors and companies. For a smaller company, see Miami business purchase and sale lawyer and whether to buy the assets or the entity.
What Should Due Diligence Cover Before a Florida Acquisition?
Due diligence examines the target company's financial, legal and operational condition. Aaron Resnick reviews contracts, regulatory compliance, liabilities and organizational records, and coordinates the financial review with the client's accountant or advisers. He also checks which commitments become binding before the review ends and which inspection or cancellation rights the agreement preserves.
The Seller's Unpaid Florida Taxes
A transferee of more than 50 percent of a business, its assets or its stock of goods can become liable for the seller's unpaid business taxes under chapter 213, Florida Statutes. The rule includes qualifying groups acting together. Stock of goods here means inventory, not corporate shares.
The maximum liability is the greater of fair market value and total purchase price, each adjusted under the statute. The value calculation deducts liens and liabilities except insider obligations. The price calculation deducts liens and liabilities against the assets except insider obligations and other obligations the buyer assumes.
These are two different adjusted calculations, not simply the gross price and gross asset value. Aaron Resnick reviews the liens, assumed debts and insider relationships before calculating the buyer's exposure under the transfer rule.
Clearance and Payment
One exception requires a Department of Revenue receipt or compliance certificate showing no audit notice, all required returns filed and payment of the business taxes identified on those returns. The buyer and seller must also have no insiders in common at the time of transfer.
Another exception applies when a department audit finds no taxes, interest or penalties due from the seller. A certificate that omits the statutory conditions is not the same as a clean audit. Aaron Resnick reviews the actual clearance documents before the buyer relies on an exception.
A buyer may withhold part of the price to pay the seller's state tax, but must pay the withheld amount to the state within 30 days after transfer. The seller remains liable for any shortfall. The seller's own final return and payment deadline is generally 15 days after transfer, not the buyer's 30 day remittance period.
This transfer provision excludes corporate income tax and qualifying involuntary transfers. It also excludes specified stand alone real property transfers to a buyer who is not an insider, provided no other business assets accompany them. Those exclusions do not mean every asset purchase is free of tax liability.
Read what to review before buying a business in Miami and which liabilities can follow the buyer of a Florida business.
Which Approvals and Government Filings Does a Deal Need?
The required votes, consents and filings depend on the entities, transaction size and industry. Aaron Resnick reviews Florida and federal requirements for corporate governance, taxation, securities and antitrust before the parties set the closing date. A filing or the end of a waiting period is not the same as every required government approval.
Federal Competition Review
Certain acquisitions require notification to the Federal Trade Commission and the Department of Justice under the federal premerger notification program. The applicable waiting period must expire or be ended early before closing. Filing thresholds and exemptions must be checked for the actual transaction, not assumed from a prior deal.
A request for additional information or a court order can extend the waiting period. Compliance does not bar a later antitrust challenge under the federal statute. Aaron Resnick reviews the filing requirement, information requests and any restriction on closing alongside other approvals the industry requires.
Securities and Licenses
The Securities and Exchange Commission's disclosure and registration rules can apply when a public company is involved or securities are offered to investors. Required filings depend on the transaction and any available exemption. Aaron Resnick checks those requirements rather than treating every acquisition as a request for SEC approval.
For a business with a government license, Aaron Resnick checks whether the license can transfer and whether the regulator requires an application or approval for the new ownership. A stock purchase and an asset purchase may call for different regulatory reviews.
Florida Income Tax
Florida has no personal income tax. The Florida Constitution's income tax provision addresses limits on taxation, but it does not make every company tax free. Corporate income tax under chapter 220, Florida Statutes, depends on the taxpayer's classification, Florida activity and applicable exemptions.
The Department of Revenue's guidance distinguishes entities taxed as corporations from partnerships, disregarded LLCs and S corporations. Some S corporations still owe Florida tax when federal income tax applies at the entity level. Aaron Resnick works with the client's accountant or tax adviser on each structure's tax consequences before it is chosen.
Can the Buyer Stop the Seller From Competing After the Sale?
A buyer seeking to enforce a seller's noncompete needs a writing signed by the seller under chapter 542, Florida Statutes. The buyer must also establish a legitimate business interest and show that the restraint is reasonably necessary and reasonable in time, area and line of business. Aaron Resnick reviews the wording and supporting facts.
Legitimate interests can include trade secrets, valuable confidential information, substantial relationships with specific customers and goodwill associated with a business name, location or market. The list also includes specified training and client or patient relationships. A covenant without a legitimate business interest is unenforceable.
How Long Can the Restriction Last?
For a seller's noncompete after a business sale, when trade secrets are not the basis, chapter 542 presumes three years or less reasonable and more than seven years unreasonable. These presumptions can be rebutted; they are not automatic approval of every shorter restraint or an absolute seven year ceiling.
For a restriction protecting trade secrets, the statutory presumptions are five years or less as reasonable and more than ten years as unreasonable. Those presumptions are also rebuttable. Aaron Resnick identifies what the restriction protects before applying a time period.
What Can a Buyer Enforce Under a Noncompete?
The person seeking enforcement must prove the restraint is reasonably necessary. Once that initial showing is made, the opponent can prove it is too broad, too long or otherwise unnecessary. The court must narrow an excessive restraint to the relief reasonably necessary to protect the established interest; narrowing does not create a missing legitimate interest.
An assignee or successor relying on the statute's enforcement protection needs the covenant to expressly authorize enforcement by an assignee or successor. Aaron Resnick checks that language when existing restrictions are part of the assets or business being acquired.
Other applicable law and defenses still matter; chapter 542 does not legalize a restraint otherwise unlawful under Florida or federal law. Read about whether noncompete agreements are enforceable in Florida.
How Does the Industry Affect a Merger or Acquisition?
A company's industry changes the records, permissions and operating risks that need attention. Aaron Resnick reviews title, leases and permits for property deals; licenses and patient services for healthcare; software and intellectual property for technology; and brands, management contracts and staff for hospitality. Financial businesses need review of their regulatory requirements too.
- Real estate and construction. Firms combine property portfolios and respond to market trends, with title, leases and permits in the review.
- Finance. Buyers and sellers of financial businesses need to identify the regulators and requirements that apply to the proposed ownership.
- Healthcare. Hospitals, specialty clinics and biotech firms combine to expand patient services and add technology, with licensing and service obligations to address.
- Technology. Companies acquire startups, technology and intellectual property to expand their capabilities or enter new markets.
- Tourism and hospitality. Hotel chains, entertainment companies and travel services combine to gain market share, bringing brands, management agreements and staffing into the deal.
Miami is a gateway to Latin America, and foreign companies buy Florida businesses to establish a presence in the United States. Aaron Resnick handles deals with a foreign buyer or seller; see Miami international business lawyer. Private equity firms and venture capital investors also fund acquisitions in Miami, and their terms get the same review.
What Can Go Wrong After Closing?
After closing, the cultures and overlapping operations of the two companies may not combine as planned, the savings the deal projected may not arrive, and economic conditions or regulations can change. Aaron Resnick assists with integration after the merger, helping the companies combine operations and cultures, and acts when a promise in the agreement is broken.
See what happens to the lease, licenses, employees and contracts after a business sale. When a deal ends in a fight between owners, the firm's page on business ownership and control disputes explains the options.
How Does Aaron Resnick Handle a Merger or Acquisition?
Aaron Resnick handles legal strategy, due diligence, negotiation, deal structure, regulatory compliance and integration after closing. He connects each step to the client's business goals and the industry's demands. The work includes reviewing the target, addressing approvals and contract terms, and helping the companies combine their operations and cultures after the transaction.
- Legal strategy. Aaron Resnick develops the approach around the client's business goals and the demands of its industry.
- Due diligence. He reviews legal liabilities and operating structures and coordinates the financial review with the client's advisers, so the client can assess risks and benefits before making the relevant commitments.
- Negotiation and structure. He negotiates terms and reviews their tax and regulatory consequences, including complex asset arrangements and deals involving another country. Read about contract drafting and negotiation.
- Regulatory compliance. He makes the required government filings, pursues any approvals the deal needs and addresses antitrust concerns.
- Integration. After closing, he helps the companies combine operations and cultures against the objectives established at the start.
Why Hire Aaron Resnick for a Merger or Acquisition?
Aaron Resnick is a past president of the Miami Beach Bar Association and has been named to Florida Super Lawyers every year since 2013. He also handles the lawsuits that follow failed deals, so each agreement is negotiated with that dispute in mind.
A merger or acquisition is a step toward the company's growth, not the goal. Aaron Resnick measures each term against the client's long term business goals as well as the legal requirements. Read about the firm's attorneys.
What Should You Send Aaron First?
Send the letter of intent or term sheet, formation and ownership records, operating or shareholder agreements, and any proposed purchase agreement. Include recent financial statements, the main contracts and leases, and the planned closing date. Aaron Resnick uses those records to identify the structure, required approvals, liabilities and the next decision.
Add tax returns and clearance documents, material licenses, existing noncompetes, proposed financing and any shareholder or member notices. Identify the assets or interests being transferred and any debts the buyer has agreed to assume.
Send the parties, the problem and the next date; the firm reviews every inquiry and tells you whether it can help.
Aaron Resnick has handled business disputes in Miami since 1998 and is a fourth generation Miami resident. He works hands-on on every case; the client gets Aaron on every major litigation issue, not a junior partner.
We Don't Make Promises. We Have Results to Prove It.
The Law Offices of Aaron Resnick represents business buyers, sellers and owners in Miami Dade, Broward and Palm Beach counties and across Florida in business purchases and sales, due diligence, purchase agreements and closing issues. Call 305-672-7495 or request a consultation.
This page provides general information and is not legal advice. Prior results do not guarantee or predict a similar outcome.
