ILNews

Business agreements provide roadmap for changes in family-run enterprises

Back to TopCommentsE-mailPrintBookmark and Share
Indiana Lawyer Focus

Integrate family into small business ownership and the potential for rivalry, high emotions and different agendas increases, especially as the business is passed from one generation to the next.

The dispute rocking the Holiday World & Splashin’ Safari theme park in southwest Indiana shows what can happen when a family fights over a business but, attorneys say, it is an extreme and uncommon situation. Usually members of a family or multiple shareholders in a closely held company work through their dispute outside the courtroom.

Still, Holiday World could become a teaching tool. Lawyers will be able to point to what happened there to convince clients of the need for legal agreements regarding ownership, division of duties, succession and procedures for cashing out.
 

brown-kimberly Frank

The goal of these agreements is to ensure the continued success of the business, said Shannon Frank, of Kahn Dees Donovan & Kahn LLP in Evansville. In addition, the legal documents can help a family get along in a business so they can also get along at the Thanksgiving table.

Ronald Katz, co-founding partner of Katz & Korin PC, described these agreements as roadmaps, detailing how to handle future events as well as dealing with here-and-now issues like compensation, liabilities and division of responsibilities. They also provide protection to the parties that have come together to start and grow a business operation.

A business that has multiple owners but fails to plan is really rolling the dice, Katz said.

Attorneys advise that shareholder agreements, operating agreements, buy/sell agreements, or succession agreements should be in place in any small business, whether owned by a family, an individual, or business partners. They should also be written early when everyone is cooperating.

The contents of the documents can vary from business to business, but a key topic they should address is what happens in the event of a death or disability of the primary owner, said David Barrett, partner at Faegre Baker Daniels LLP. These agreements can require consent from multiple stakeholders, rather than just the principle shareholder, before the business is sold or makes a major investment.


barrett-david Barrett

Barrett highlighted one succession agreement he worked on with a father who wanted to sell the business to his two children. The document included language outlining how the business would eventually be passed to the man’s grandchildren, who were as young as 10 years old at the time.

That agreement was unusual, Barrett said, since taking the business through different generations makes the process more difficult. Here, the father wanted his grandchildren to replicate the path his children took into the business. Namely, he wanted the third generation to work for other companies and gain relevant experience before joining the family business.

Typically, most agreements focus on one generation transferring the enterprise to another, Barrett said.

Frank said the agreements should consider the personalities involved and the skills each individual brings. But primarily, she said echoing Barrett, the documents should spell out what happens when an owner dies or retires.

Without a succession plan, the survivors could rely on the deceased owner’s will to determine the division of assets, Barrett said. Deciding to split the business evenly between the heirs can bring problems in subsequent years as the children of each heir become adults.

If one of the heirs’ children or grandchildren wants to cash out of the business, problems could arise in determining which heir is in control to make decisions regarding any sale of shares.

In some circumstances, decisions about succession and assets could be decided by lawyers, explained John Maley, partner at Barnes & Thornburg LLP. With no clear direction from the owner, outside parties could decide the fate of the business.

The family feud among the shareholders of Holiday World was ignited after the sudden death of the president and majority shareholder, William Koch. Although the agreement includes a succession plan and method for valuing the shares, Dan Koch, William’s brother, and Lori Koch, William’s widow, are battling over the exact dollar amount.

The fight has landed in the Indiana Court of Appeals. Attorneys representing the feuding family members argued before the judges Aug. 6. No decision has been rendered although, during oral arguments, Judge John Baker said the court can probably do nothing to help this fractured family.

None of the attorneys interviewed for this story had direct involvement in the Holiday World dispute nor any connection to the parties involved. However, all said the Holiday World situation is an outlier. Often if a dispute arises, families and shareholders will try to negotiate a solution between themselves. Pursuing litigation and turning to the courts is unattractive largely because of the costs involved.

“My experience, most of (these agreements) work, but another lawyer may have a very different experience,” Frank said.

Both Frank and Barrett said writing business agreements should be done deliberately. Hoosiers can set up their businesses through the secretary of state without any input from attorneys, but if a dispute erupts or one of the shareholders wants to divest, hammering out an agreement then can be difficult at best.

Katz said sometimes putting a business agreement together is not too difficult, while other times it can resemble trying to get the Arabs, Palestinians and Israelis to the peace table. Dissecting the issues and determining what people truly want to achieve is often the challenge.

The key to a good business agreement is communication, Barrett said. He advised business owners seek the advice of peers as well as professionals.

For lawyers, the goal is to write a document that is clear and leaves little room for interpretation, Frank said. Still, one must remember that different people can offer different interpretations of the meaning. And even when the parties have previously committed to an agreement, one could later argue that he or she does not agree to the terms, Katz adds. A party could contend the circumstances have changed or the relationship has been altered to the point where the agreement no longer governs.

Or, he added, the terms could be clear but the parties argue anyway. “We are not the ensurers of our clients being reasonable,” Katz said.•
 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  2. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

  3. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  4. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  5. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

ADVERTISEMENT