The Business Divorce: Maximizing Value For Clients in ... · The Business Divorce: Maximizing Value...
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The Business Divorce: Maximizing Value For Clients in Property SettlementsHouston Bar Association - Family Law Section, October 7, 2015
Charles [email protected]
(713) 333‐5127
Ladd Hirsch [email protected]
(214) 389‐5323
Today’s Presenters from Diamond McCarthy LLP
Settlement Counsel – Adding Value to the Team
Scenario #1:
Divorcing couple have substantial ownership interest in private company – illiquid value
Scenario #2:
Valuing the business (or interest in the business) is too difficult, expensive or unsuitable
Situations Where Settlement Counsel Add Value
Scenario #3:
Divorcing parties each desire to continue holding ownership interest in business after divorce
Situations Where Settlement Counsel Add Value
Changing Texas Legal Landscape: Claim for Shareholder Oppression Limited
Ritchie v. Rupe, 443 S.W.3d 856 (Tex. June 20, 2014)
New standard for shareholder oppression
No buyout for proving shareholder oppression, only appointment of a receiver
Contract Buyouts Will Be Enforced
Cardiac Perfusion Servs., Inc. v. Hughes, 436 S.W.3d 790 (Tex. June 27, 2014)
Don’t accept a buyout at book value
Dividend Plan is Essential
Argo Data Res. Corp. v. Shagrithaya, 380 S.W.3d 249 (Tex. App.—Dallas 2012, pet. denied)
Get a distribution plan
Benefits From Agreed Division of Business Interests
• Parties decide terms of property division, not court
– Court’s “solution” may make both parties unhappy
– Judge can: (i) require sale of business, (ii) grant full ownership of business to one spouse, or (iii) make couple co-owners of business
– Court’s order may create significant practical problems
– Couple can decide the best way to divide their ownership interest
• Settlements are potentially quicker and less expensive
Property Division Options
Promissory Note (Debt)Requires valuation to establish principal amountConsider term, interest, amortization, and default events
Hybrid InterestsPreferred EquityProfits InterestCombination of Debt and Equity
Equity InterestGenerally requires most information and involvement to vote on owner matters
Information and involvement needs vary with different type of interests
Secured Promissory Notes• Perfection of security interests in collateral
– Real property records (County Clerks Office)
– UCC-1 Financing Statement (Texas Secretary of State)
– Account control agreement
• Only way to perfect a security interest in a bank account
– Possession/constructive possession
Business Bundle of Rights (and Responsibilities)
Decision Making Power
Management Liability
Distributions
Capital Calls
Transfers
Compensation
Goodwill
Business Opportunities
Intellectual Property
Dispute Resolution
Decision Making Power
Management Liability
Management Control
Co-Ownership Deadlock Scenario
W H
GP
Partnership
49.5% 1% 49.5%
50%50%
Decision Making Power• Governance documents generally specify who has authority to make
business decisions and the process for making decisions
• Under Texas law, the potential legal avenues the deadlocked owner include: (i) seeking appointment of provisional director to break the deadlock, or (ii) seeking appointment of a custodian or receiver
Concerns to Balance
Controlling spouse has Authority to enter into ordinary course transactions
versus
Both spouses have input on Major Decisions affecting the business
Continued Co-Ownership Requires Protective Terms
• Contract terms required to protect interests of non-controlling spouse
• These protections include, but are not limited to, the following:
1) Issue new equity and admission of new owners
2) Major business transactions (sale of substantially all assets, merger)
3) Major financings
4) Employ officers and directors and set compensation
Management Liability
Concern to Address
• Duties to Owners Fiduciary Duties
• Duties to Third Parties– Direct claims– Derivative claims– Veil Piercing
Available Options
• Restructure scope of fiduciary duties and indemnifications (gross negligence, willful misconduct)
• Indemnifications
• Insurance
Economic Rights and Responsibilities
Distributions
Capital Calls
Transfers
Compensation
Distribution v. Allocation
• Entities taxes as a partnership (including limited liability companies) are known as a “pass-through” or “flow-through” entities for tax purposes
• The entity itself doesn’t pay any income taxes; instead, the profits “pass through” the company to the owners, who report them as income on their personal tax returns
• The share of the profits and losses that each owner reports is the Allocation of profits and losses
• Distributions are when cash is transferred to owners
Phantom Income
Concern to Address
“Phantom income” occurs when pass-through tax entity has taxable income but no distribution to owners
Available Options
Restructure governance documents for mandatory cash distributions to cover taxes
Rely on other assets to satisfy tax obligation
Requires financial analysis to estimate future tax obligations
Distributions
• Generally, governance documents give discretion to make distributions to the company’s management
• No guarantee distributions will be made
Concern to Address
• Timing and Control Over Distributions
Available Options
• Analyze underlying assets: Are In-kind distributionspossible?
• Periodic distributions of cash– Consider timing and permitted
reserves (working capital, future investments, etc.)
Capital Calls and Dilution• Capital Calls occur when company requests or demands that the
owners contribute more money to the company
• Dilution is reduction in the ownership percentage of a company caused by the issuance of new ownership interest
Concern to Address
• Capital call obligations (usually dilution results if owner fails to make capital call)
Available Options
• Restructure governance documents to require owner loans rather than capital calls
• Restructure governance documents; make dilution provisions more equitable
Transfer Restrictions and Exit Strategy
Generally, private companies restrict transfers of ownership interest
Need to consider and plan for exit strategy:
Sale of Business Interest (to outside investors)
• Consider rights of first refusal, tag-along and drag-along rights
• Consider retaining business brokers
Buy-Sell Agreements• Spouses should include the right for either one of them to be able to trigger a buyout at
some point in the future pursuant to a specified valuation process
Buy-Sell Agreements
Structuring a Buy-Sell Agreement • Consider trigger events
• Pricing methodology
– Market test (right of first refusal)
– Formula calculated from financial information
– Opinion of valuation expert
» Consider assumptions/discounts
» Minority shareholder discount
» Illiquidity discount
Compensation
Concerns to Address
• Employee spouse taking out profits as “compensation”
Available Options
• Structure compensation– Caps on compensation and
reimbursable expenses– Structure bonuses to
achieve a win-win for the parties
Intangible Considerations
Goodwill
Business Opportunities
Intellectual Property
Dispute Resolution
Goodwill
• Personal goodwill (also known as “professional goodwill”) attaches to a particular individual rather than to the business that the individual owns
• Enterprise goodwill (or “business goodwill”) is derived from characteristics specific to a particular business, regardless of who owns or operates it
Business Opportunities
Concerns to Address
• Controlling spouse taking related business opportunities for himself/herself
Available Options
• Non-compete agreements • Enhance or limit fiduciary
duties (the “corporate opportunity doctrine”)
Intellectual Property
Dispute Resolution
• Structure dispute resolution procedures: – Mediation (optional or mandatory)– Arbitration
• Specify duration• Include limits on discovery
– Litigation• Select choice of venue• Jury trial waiver• Injunctive relief; preserve right to obtain temporary restraining order
as needed
• Structure penalties including litigation cost provisions
QUESTIONS?Questions?Questions?
Ladd Hirsch is a business‐oriented, highly successful trial attorney with 30 years experience representing clients in complex business litigation matters and arbitration proceedings. Ladd joined Diamond McCarthy as a partner in 2006. Previously, Ladd was a founding partner of a Dallas‐based litigation boutique. Before starting his own firm, Ladd practiced for almost 20 years with Haynes and Boone, LLP, a full‐service law firm, where Ladd headed up its Business Litigation Practice Group in Dallas.
Laddʹs practice is characterized by his tenacity and creativity in handling the prosecution and defense of significant multi‐party business litigation matters. Ladd has had extensive experience handling complex business disputes presenting claims for breach of contract, fraud, minority shareholder oppression, violations of fiduciary duties, breach of non‐compete covenants, theft of trade secrets and business defamation. He has litigated claims arising in all of the following industries: manufacturing, commercial lending and financing, construction, computer software, insurance, real estate, beer distribution, retail sales, health care, food service, and video games. Ladd represents both plaintiffs and defendants in business cases under hourly, contingent and hybrid fee arrangements. Ladd has also been retained in a number of matters by other attorneys to serve as an expert witness on the subject of recoverable legal fees.
Ladd has tried cases to judgment in both state and federal courts, including federal courts located in New York and Chicago, and he has argued cases on appeal at both the state and federal levels in Texas.
Ladd [email protected]
214.389.5323
Charles Rubio is a partner based in Diamond McCarthy’s Houston office. He is an experienced business attorney who represents clients in a broad range of corporate and financial transactions as well as commercial disputes. Charles’s practice has a special emphasis on financial restructurings and multi‐party litigation. In addition, he has substantial experience in preparing sophisticated corporate and transactional documents. Prior to joining Diamond McCarthy, Charles was an associate in the Financial Restructuring Group in the New York office of Milbank, Tweed, Hadley and McCloy LLP.
Charles advises clients in all stages of a business life‐cycle. He counsels clients on business formation issues and has worked with entrepreneurs focused on start‐up companies. Charles also works with business borrowers in negotiating and consummating financing facilities and other capital raises. In addition, he handles a wide‐range of commercial disputes including litigation involving contract disputes, breach of fiduciary duties, preference actions and fraudulent transfer claims. Charles represents vendors, landlords, and other parties who have sued or are being sued by bankrupt entities and advises clients during the wind‐down phase of a business life‐cycle. These representations include counseling businesses and management on their rights and responsibilities during insolvency situations and representing clients in distressed asset sales and business restructurings.
Charles is licensed to practice in Texas and New York
Charles M. [email protected]
713.333.5127
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