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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.


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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. Should be beat this rap, I would not recommend lion hunting in Zimbabwe to celebrate.

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  4. All these sites putting up all the crap they do making Brent Look like A Monster like he's not a good person . First off th fight actually started not because of Brent but because of one of his friends then when the fight popped off his friend ran like a coward which left Brent to fend for himself .It IS NOT a crime to defend yourself 3 of them and 1 of him . just so happened he was a better fighter. I'm Brent s wife so I know him personally and up close . He's a very caring kind loving man . He's not abusive in any way . He is a loving father and really shouldn't be where he is not for self defense . Now because of one of his stupid friends trying to show off and turning out to be nothing but a coward and leaving Brent to be jumped by 3 men not only is Brent suffering but Me his wife , his kids abd step kidshis mom and brother his family is left to live without him abd suffering in more ways then one . that man was and still is my smile ....he's the one real thing I've ever had in my life .....f@#@ You Lafayette court system . Learn to do your jobs right he maybe should have gotten that year for misdemeanor battery but that s it . not one person can stand to me and tell me if u we're in a fight facing 3 men and u just by yourself u wouldn't fight back that you wouldn't do everything u could to walk away to ur family ur kids That's what Brent is guilty of trying to defend himself against 3 men he wanted to go home tohisfamily worse then they did he just happened to be a better fighter and he got the best of th others . what would you do ? Stand there lay there and be stomped and beaten or would u give it everything u got and fight back ? I'd of done the same only I'm so smallid of probably shot or stabbed or picked up something to use as a weapon . if it was me or them I'd do everything I could to make sure I was going to live that I would make it hone to see my kids and husband . I Love You Brent Anthony Forever & Always .....Soul 1 baby

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