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Business agreements provide roadmap for changes in family-run enterprises

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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.
 

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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.•
 

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  1. Some are above the law in Indiana. Some lined up with Lodges have controlled power in the state since the 1920s when the Klan ruled Indiana. Consider the comments at this post and note the international h.q. in Indianapolis. http://www.theindianalawyer.com/human-trafficking-rising-in-indiana/PARAMS/article/42468. Brave journalists need to take this child torturing, above the law and antimarriage cult on just like The Globe courageously took on Cardinal Law. Are there any brave Hoosier journalists?

  2. I am nearing 66 years old..... I have no interest in contacting anyone. All I need to have is a nationality....a REAL Birthday...... the place U was born...... my soul will never be at peace. I have lived my life without identity.... if anyone can help me please contact me.

  3. This is the dissent discussed in the comment below. See comments on that story for an amazing discussion of likely judicial corruption of some kind, the rejection of the rule of law at the very least. http://www.theindianalawyer.com/justices-deny-transfer-to-child-custody-case/PARAMS/article/42774#comment

  4. That means much to me, thank you. My own communion, to which I came in my 30's from a protestant evangelical background, refuses to so affirm me, the Bishop's courtiers all saying, when it matters, that they defer to the state, and trust that the state would not be wrong as to me. (LIttle did I know that is the most common modernist catholic position on the state -- at least when the state acts consistent with the philosophy of the democrat party). I asked my RCC pastor to stand with me before the Examiners after they demanded that I disavow God's law on the record .... he refused, saying the Bishop would not allow it. I filed all of my file in the open in federal court so the Bishop's men could see what had been done ... they refused to look. (But the 7th Cir and federal judge Theresa Springmann gave me the honor of admission after so reading, even though ISC had denied me, rendering me a very rare bird). Such affirmation from a fellow believer as you have done here has been rare for me, and that dearth of solidarity, and the economic pain visited upon my wife and five children, have been the hardest part of the struggle. They did indeed banish me, for life, and so, in substance did the the Diocese, which treated me like a pariah, but thanks to this ezine ... and this is simply amazing to me .... because of this ezine I am not silenced. This ezine allowing us to speak to the corruption that the former chief "justice" left behind, yet embedded in his systems when he retired ... the openness to discuss that corruption (like that revealed in the recent whistleblowing dissent by courageous Justice David and fresh breath of air Chief Justice Rush,) is a great example of the First Amendment at work. I will not be silenced as long as this tree falling in the wood can be heard. The Hoosier Judiciary has deep seated problems, generational corruption, ideological corruption. Many cases demonstrate this. It must be spotlighted. The corrupted system has no hold on me now, none. I have survived their best shots. It is now my time to not be silent. To the Glory of God, and for the good of man's law. (It almost always works that way as to the true law, as I explained the bar examiners -- who refused to follow even their own statutory law and violated core organic law when banishing me for life -- actually revealing themselves to be lawless.)

  5. to answer your questions, you would still be practicing law and its very sad because we need lawyers like you to stand up for the little guy who have no voice. You probably were a threat to them and they didnt know how to handle the truth and did not want anyone to "rock the boat" so instead of allowing you to keep praticing they banished you, silenced you , the cowards that they are.

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