ORLANDO, FLORIDA — ShuffieldLowman recently announced that attorney John D. Mirkin has joined the firm’s Orlando office.

Mirkin holds an advanced law degree, LL.M. in taxation, and practices in the areas of tax, estate planning, and corporate law. He has prior experience working as a financial planner, where he held several FINRA securities licenses and advised clients regarding wealth management, asset protection, and business succession strategies.

He earned his J.D. and LL.M. degrees from the University of Florida Levin College of Law. While in law school, Mirkin completed a semester-in-practice with the Florida Office of the Attorney General and was a member of the Tax Moot Court team. He holds a Business Administration degree from the University of Massachusetts Amherst.

ShuffieldLowman’s five offices are located in Orlando, Tavares, DeLand, Port Orange, and the newest location in Lake Nona. The firm is a 50 attorney, full-service law firm, practicing in the areas of corporate law, estate planning, litigation, and real estate. Specific areas include tax law, securities, mergers and acquisitions, estate planning and probate, commercial and civil litigation, fiduciary litigation, labor and employment, construction law, intellectual property, planning for families with closely held businesses, guardianship and elder law, tax controversy – Federal and State, non-profit organization law, banking and finance, land use and government law, association law, bankruptcy and creditors’ rights, and mediation.

For the first time in 20 years, the Department of Justice (“DOJ”) has published guidance on website accessibility matters under the Americans with Disabilities Act (“ADA”).

In the publication, posted on March 18, 2022, and available at ADA.gov, the DOJ reiterates its priority for ensuring web accessibility for people with disabilities and emphasizes this is an obligation of both state and local governments under Title II of the ADA, and businesses that are open to the public, or public accommodations, under Title III.

The guidance provides a non-exclusive listing of examples, options, and resources for assistance and guidance in making websites available to the disabled.  Importantly, however, the technical assistance states that “The Department of Justice does not have a regulation setting out detailed standards, but the Department’s longstanding interpretation of the general nondiscrimination and effective communication provisions applies to web accessibility.”  Thus, as the publication further notes, businesses and states have flexibility in how they comply with the ADA general requirements as to websites, but they still must ensure that the programs and services in good faith provided to the public are accessible to people with disabilities.

The publication also notes that automated accessibility checkers and overlays can be helpful tools in identifying or fixing problems, but that they need to be used carefully.  The DOJ further states that pairing a manual check of a website with the use of automated checkers can give a better sense of the accessibility of the website.  The DOJ also explains that the existing technical standards provide helpful guidance concerning how to ensure accessibility, and refers to the Web Content Accessibility Guidelines (WCAG) and the Section 508 standards utilized by the Federal Government for its own website. 

ShuffieldLowman is ready to assist companies and clients with respect to issues that may arise from ADA website compliance. For additional questions on ADA website accessibility, please contact our commercial and civil litigation or corporate law teams. Visit our contact page here

We enter into contracts all the time, but what exactly creates a contract? Simply put, a contract is formed when one entity makes an offer to another, and that offer is accepted. Any time you exchange money for services you have likely signed a contract with the service provider.  Have you ever hired a plumber? Did you receive a written estimate that you signed to accept the estimate and begin services? If so, you’ve entered into a contract.

The three essential elements are the offer, acceptance, and consideration. To begin a contract, an offer must first be extended. Details of the agreement, as well as its terms and conditions, should be included. Simply explained, an offer is an attempt by the offeror to enter into a contract with another party. Once the offer has been made, the offeree has the option of accepting or rejecting the proposal and its terms and conditions. Finally, to have a legitimate legal agreement, something of value must be exchanged such as money, merchandise, property, protection, or services. If the parties are not trading in money, they should ensure that whatever they are trading, commonly known as their consideration, is considered valuable by the court.

Dissecting a contract even further, there are 7 key ingredients that should be included in a contract: Who, What, Where, When, How Much, The Date, and Signatures. The “Who” in the case of contracts are the parties involved. Let’s say you call a plumber to fix a leak. In this case, you and the company the plumber works for is the “who.”

The “What” is the scope of work. The scope of work is the section of a contract or agreement where all expected activities and deliverables are detailed with the goal of harmonizing expectations between both parties is known as the “tasks and deliverables section.” You and the plumber are discussing the problem and they tell you the leak is part of a bigger problem and outline what work needs to be done to correct the issue. They write up a proposal explaining the scope of work. This is the “what.”

The ”Where” is the location of the work. In the case of the plumber, your home is likely the “where” with special attention to specific locations affected such as the front or back yard, the bathroom, the kitchen, etc.

The “When” is the timeline of work. The plumber, in their written estimate that will become a contract if you sign it, will lay out the timeline for completion of the project. It may take a week to get a special part, and then a day to do the work,  and another day to follow up.

The “How Much” is the terms of payment. What will it cost for whatever merchandise, property, protection, or services you’d receive? Going back to our plumber example, the quote you will sign will tell you how much the services will cost and the payment timeline. Will you have to pay a deposit? Will you pay the balance upon completion?

The “Date” is simply the date the contract becomes effective. Usually, that is the date the contract is signed.

Finally, the “Signatures” close the deal and the contract is complete. The plumber has given you the scope of work, the location of the work, the timeline of the work, the expected payment terms, and has dated the estimate. Now you accept or decline. You’ve decided the plumber you’ve called is giving you a good deal, so you accept and sign the estimate.

You now have a contract with the plumber’s company. You have been given an offer, you have accepted, and you have met the consideration standards. In doing so you have met all seven key ingredients for a contract. You know the who, what, where, when, how much, have the date, and have given your signature to confirm your intent to follow through with the agreement. Our commercial litigation, real estate, construction teams, and other attorneys within our practice areas are here to advise our clients on their options based on the specific terms outlined in their contracts. For more information and assistance with a contract, you can contact us here.

ORLANDO, FL — Six partners from the law firm of ShuffieldLowman were recently selected by their peers for inclusion iThe Best Lawyers in America© (2022), as published in dozens of city and regional publications in the U.S. including, U.S. News & World Report.  In addition, Heidi W. Isenhart was named an Orlando Lawyer of the Year in Elder Law.  The Lawyer of the Year distinction is awarded to individual lawyers with the highest overall peer feedback for a specific practice area and geographic region.  Only one lawyer is recognized as the Lawyer of the Year for each specialty and location.

Honorees include Scott A. Cookson in Real Estate Law; Matt G. Firestone in Commercial Litigation; Heidi W. Isenhart in Elder Law; J. Stephen McDonald in Commercial Litigation, Gregory W. Meier in Corporate Law and Trusts and Estates and Lynne R. Wilson in Real Estate Law.

 Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Because Best Lawyers is based on an exhaustive peer-review survey in which almost 50,000 leading attorneys cast nearly five million votes on the legal abilities of other lawyers in their practice areas, and because lawyers are not required or allowed to pay a fee to be listed, inclusion in Best Lawyers is considered a singular honor. Corporate Counsel magazine has called Best Lawyers “the most respected referral list of attorneys in practice.” 

ShuffieldLowman’s five offices are located in Orlando, Tavares, DeLand, Port Orange and the newest location in Lake Nona. The firm is a 45 attorney, full-service law firm, practicing in the areas of corporate law, estate planning, real estate, and litigation. Specific areas include tax law, securities, mergers and acquisitions, intellectual property, estate planning, and probate, planning for families with closely held businesses, guardianship and elder law, tax controversy – Federal and State, non-profit organization law, banking and finance, land use and government law, commercial and civil litigation, fiduciary litigation, construction law, association law, bankruptcy and creditors’ rights, labor and employment, and mediation.

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Planning for key employees is an important aspect of the growth of any business. Key employees can either drive value to your company or create a roadblock down the line when preparing for an exit transaction. This is why, as a business owner, it’s never too early to plan for ways to retain and reward key employees through the ultimate sale of your business.

Luckily, your first resort for keeping a key employee happy does not automatically mean giving up ownership. We have seen an uptick in companies using constructs like “phantom stock,” “equity participation shares” and other similarly named plans that, in essence, motivate an employee by enhancing their opportunity for participating in the growth of the company and giving them “skin in the game” all without selling actual shares in the company.

Why not actual stock?

Employees and employers alike are sometimes surprised to find out that issuing actual stock to an employee typically means that the employee must pay income and employment taxes on the value of the stock in the year in which they receive it (as if the stock was cash compensation). There are ways around this, such as requiring the employee to pay for the stock or issuing options to buy stock at a later date. But unless the employer is willing to give them the cash to pay for the stock, which additionally also triggers income and employment taxes, employees will rarely exercise their stock options until an exit transaction is imminent, and will have at that point already forfeited the potential tax benefits of stock ownership. In addition, employees holding actual stock in their employer have the rights to call owner meetings, inspect books and records, review financials, and exercise various other rights of a stockholder under state law. For pass-through entities in particular, employees will have to be issued K-1 statements that will hold up the filing of the employee’s own personal tax returns, and they may potentially have to pay taxes on “distributable” income of the company that they never actually receive. Further, once an employee holds actual stock, it is very difficult to get it back (in the event of a termination, for instance) without that employee’s sign-off. For all of these reasons, we are seeing more and more emerging and established companies steer clear of awarding actual stock to their key employees.

What is a Phantom Stock Plan? 

A phantom stock plan is a compensation plan that provides key employees the financial benefits of actual stock without the tax and other legal issues involved in ownership. This allows key employees to still participate in the growth and profitability of the company. 

Who are the Key Employees?

Key employees are typically those that meet the following criteria: they are highly compensated or they carry out management-level duties (as defined by the Department of Labor), and in either case, they must be able to negotiate their compensation packages. Employees that do not fall into one of these buckets are typically not eligible for phantom stock plans. 

How is a Phantom Stock Plan Structured?

The value of the phantom stock units can be measured by the value of the company stock. There are two main types of phantom stock plans: “appreciation” plans and “full value participation” plans. The full value participation plan pays both the value of the underlying stock and any appreciation in the value. The appreciation-only plan pays just the increase in value of the stock share going forward from the issuance of the shares. For either of these plans, employers will often pick a percentage of the company or a specific number of shares that are used as the basis of the calculation of the value of what is due to the key employee. 

The payout under the plan will often be based upon revenue, EBITDA, multiples and ultimately the value of the company upon exit.  

Further, the employer can choose to vest the plan benefit over a certain number of years, give vesting credit to certain employees for years served, or make the plans fully vested from inception.

When is the key employee paid?

A phantom stock plan will typically payout upon the occurrence of an exit transaction. The payment of the value accruing to the key employee will typically be structured to be contingent on them remaining with the company through at least until the end of the transaction and often up to one or two years after the completion of the transaction. Some plans also have other payment triggers, to the extent they occur prior to an exit transaction, such as the key employee’s death, disability, retirement, or termination of employment. Regardless of the payment trigger, the plan will specify if the payment will be made in one lump sum or as payment installments over time once one of the payment triggers occurs. 

At ShuffieldLowman, our corporate law and mergers & acquisitions team are here to advise clients on their options when looking to retain and reward key employees before, during, and after the exit transaction. If you have any questions, you can contact a member of our team directly or contact us through our website. Phantom stocks programs should be reviewed by an attorney to ensure it is drafted properly and meets the requirement as set by IRS code 409(a).  

ShuffieldLowman served as legal counsel for the Ridgecrest Foundation during their acquisition of the Ridgecrest Conference Center, Camp Crestridge for Girls, and Camp Ridgecrest for Boys from LifeWay Christian Resources.

The newly formed Ridgecrest Foundation is an independent, nonprofit ministry created by individuals who are passionate about the mission of the conference center and camps and are committed to supporting the ongoing ministries of Ridgecrest. You can view the full press release HERE.

The ShuffieldLowman team that advised the Ridgecrest Foundation included firm president, William Lowman, and partner, Jason Davis.

ShuffieldLowman served as legal counsel for Forensic Engineering Technologies, one of the largest independent forensic engineering firms in the Southeastern United States, during its sale to J.S. Held, a global consulting firm providing specialized technical, scientific, financial, and advisory services. Forensic Engineering Technologies (FET) is a multi-disciplinary forensic engineering, expert witness, and consulting firm headquartered in Central Florida. FET’s team is composed of industry leading experts in the disciplines of mechanical, biomechanical, electrical, structural, and civil engineering. You can view the full press release HERE.

The ShuffieldLowman team that advised Forensic Engineering Technologies included mergers & acquisitions partners Jason Davis and firm president, William Lowman.

 

 

ShuffieldLowman was recently named a 2021 Best Law Firm in Orlando by The Best Lawyers in America©.  The firm’s areas of practice recognized in the report, include: Commercial Litigation, Elder Law, Real Estate Law, Trusts & Estates Law and Corporate Law.

Recognition as a 2021 Orlando Best Law Firm means ShuffiedLowman is highly ranked by clients, peers and other law firms for their professional excellence and legal expertise.

 

Congratulations!  You successfully navigated the Paycheck Protection Program (PPP) loan application process and you were awarded a loan from the SBA.  You have spent all the funds in accordance with your advisor’s recommendations and your business’ needs.  Now you would like to apply for forgiveness of that loan to turn it into a grant.  What do you need to know and what actions do you need to take?  Have no fear, the SBA recently issued additional guidance in the form of FAQs to assist you.

Will you need to submit documents with original signatures in ink? It is acceptable to submit digital or scanned copies of any applications or supporting documentation for your loan forgiveness request.  Any signatures or consents that you need to provide may also be completed electronically.  You should check with your lender/servicer, to make sure their internal rules also allow for this.

If you submit your forgiveness application during the 10-month period after the covered period of your loan ends, then you will not be required to make any loan payments until the forgiveness amount is determined by your lender.

You may elect an Alternative Payroll Covered Period if that aligns better with your payroll practices than the standard Covered Period.  Payroll costs incurred during the period are eligible for forgiveness if they are paid by the following payroll date after your period ends.

If you took an Economic Injury Disaster Loan (EIDL) advance, then that amount will reduce any amount of loan forgiveness that you qualify for.  If the amount of your EIDL advance exceeds your PPP loan amount, then you will not qualify for any forgiveness.

One important point to remember is that forgiveness is not all or nothing.  You may obtain partial forgiveness for the portion of your loan that was expended on allowable expenses and otherwise qualifies under the workforce retention guidelines.  If you only qualify for partial forgiveness, then your lender is required to: (1) notify you of the amount of your PPP loan that will not be forgiven, (2) notify you of the date that you are required to start making loan payments, and (3) continue to service your loan over its term.

When should you apply for forgiveness?  Many businesses are waiting to file the application for forgiveness since SBA may continue to issue new regulations.  Additionally, it appears that another coronavirus relief package is in the works in Congress.  It is certainly possible that a new relief package could change the parameters around receiving forgiveness.  You may wish to wait a little longer so that there is more certainty before you apply.  You should discuss the timing of your forgiveness request with your advisors.

What if you don’t agree with a decision that SBA has made related to your PPP loan or forgiveness of it?  There is a process to appeal any decision made by the SBA that negatively impacts you.  For instance, SBA is reviewing PPP loans to determine whether the borrower was eligible for all or a portion of the loan they received, if the funds were spent appropriately, to what extent you qualify for forgiveness, etc.  If you decide that you need to appeal, then you must include quite a bit of information with your appeal request (copy of the decision you are appealing, a statement of your position, the relief you are requesting, copies of tax filings for your payroll, and additional tax records).  You may want to seek help from a trusted advisor to increase your chance of a successful appeal.  For more information on PPP loan forgiveness guidelines, see our blog on that topic here.

To speak with an attorney from our corporate law or banking and finance departments, fill out our website contact form or call our Orlando office at 407-581-9800.