Presenting a live 90-minute webinar with interactive Q&A Drafting Shareholder Agreements for Closely Held Businesses Structuring Enforceable Provisions on Voting Rights, Transfer of Shares, Buy-Sell Rights, Restrictive Covenants and More TUESDAY, NOVEMBER 10, 2015 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Brett M. Larson, Shareholder, Messerli & Kramer , Minneapolis Nathan J. Nelson, Messerli & Kramer , Minneapolis Erik L. Kantz, Partner, Arnstein & Lehr , Chicago The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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DRAFTING SHAREHOLDER AGREEMENTS FOR CLOSELY HELD BUSINESSES STRAFFORD WEBINARS NOVEMBER 10, 2015 ERIK L. KANTZ ARNSTEIN & LEHR LLP 120 S. RIVERSIDE PLAZA, SUITE 1200 CHICAGO, ILLINOIS 60606 (312) 876-6671 ELKANTZ@ARNSTEIN.COM
OVERVIEW Purpose and Use of Shareholder Agreements Drafting Key Provisions Enforceability Considerations 6 November 2015
SHAREHOLDER AGREEMENTS STATUTORY AUTHORITY Authority for shareholder agreements under corporate governance statutes: Section 218(c) of Delaware General Corporation Law: An agreement between two or more stockholders, if in writing and signed by the parties thereto, may provide that in exercising any voting rights, the shares held by them shall be voted as provided by the agreement, or as the parties may agree, or as determined in accordance with a procedure agreed upon by them. 7 November 2015
SHAREHOLDER AGREEMENTS STATUTORY AUTHORITY Section 7.71 of the Illinois Business Corporation Act of 1983: (a) Shareholders may unanimously agree in writing as to matters concerning the management of a corporation provided no fraud or apparent injury to the public or creditors is present, and no clearly prohibitory statutory language is violated. *** (c) No agreement created pursuant to this Section shall be invalid as between the parties thereto, or shall subject employees, officers, directors or shareholders to personal liability for corporation liabilities, on the basis that the agreement: (1) is an attempt to treat the corporation as if it were a partnership or to arrange the shareholders' relationship in a manner that would be appropriate only between partners; or (2) so relates to the conduct of the affairs of the corporation as to interfere with the discretion of the board of directors. 8 November 2015
INTERPLAY BETWEEN SHAREHOLDER AGREEMENTS AND CORPORATE STATUTES Regarding shareholder agreements, be mindful of statutory provisions which must be set forth in the articles of incorporation or bylaws. Different from limited liability company operating agreements, where owners are given broad latitude to vary statutory default provisions. 9 November 2015
WHO NEEDS THEM? Every business can benefit from owners’ agreements, and in particular any business with multiple stakeholders, whether those are the present owners or potential future owners, who intend to make a significant return on their investment in the business A large majority of shareholders of closely-held companies intend to pass ownership to the next generation, but few small companies make it beyond the first generation, and less than 10% survive to the second generation Ideal “one - stop” contract 10 November 2015
PURPOSES Create a well-defined organizational structure Create effective leadership, management and compensation systems Improve owner relations by determining relative rights, duties and benefits Improve management relations by clearly defining duties and responsibilities Improve creditworthiness of the company Manage expectations and conflicts among stakeholders before they ripen into costly litigation Define and manage non-competition arrangements 11 November 2015
PURPOSES Protect intellectual property and trade secrets Protect from external threats, such as: Risk from failure of business partners Risk of litigation against business partners Risk of extension of corporate liability to directors, officers and managers. • Succession planning – maintain stability of operations or provide for an identified buyer for the company • Ensure a market for the shares • For estate planning, provide liquidity for payment of estate taxes (assuming the agreement is funded, which is key) and can establish the value of the company for estate tax purposes 12 November 2015
WHERE AND WHEN TO START? Organization is the best time to start (with a clean slate), but owners’ agreements oftentimes are done as changes occur in the business as well. In operating businesses, pay particular attention to existing corporate governance documents and contracts, including those of any subsidiaries and affiliates. 13 November 2015
ADDRESS CONFLICTS OF INTEREST “Who is the client” is the first and key question when drafting owners’ agreements. Oftentimes, attorneys are asked to represent multiple owners and the business, and therefore conflicts of interest must be discussed and waived IN WRITING. Rule 1.7 Conflict of Interest, Current Clients 14 November 2015
FERRETING OUT CONFLICTS Be mindful of who brought you into the business and why. How well do you know the person? What prompted the client to seek an attorney? What issues has the person identified? Are there others? Who is active in the business? Are there financial owners and “sweat” owners? Who holds the authority? Who holds leverage? Evaluate each person’s goals and expectations. 15 November 2015
CONFLICT WAIVER The conflict waiver should (i) acknowledge the conflicts, (ii) explain the possible consequences of multiple representation (including that the parties may need separate counsel in the future at additional cost), and (iii) consent to the representation. Include an acknowledgment in the agreement as well, for example: The parties acknowledge that Arnstein & Lehr LLP has prepared this Agreement in its capacity as counsel to the Company, and each Shareholder has been provided the opportunity to retain separate legal counsel as he or she deems appropriate to represent the Shareholder in connection with this Agreement and the transactions contemplated herein. Each Shareholder has the right to retain separate legal counsel, and the fees and expenses of such separate counsel shall be at the expense of such Shareholder. 16 November 2015
USES While shareholder agreements are far from one-size-fits-all, generally speaking, the agreement should, at a minimum, address the following issues: Dividends and distributions Corporate governance and management Business opportunities and conflicts of interest Restrictions on transfers of ownership Purchase and sale of interests (buy-sell provisions) Valuation 17 November 2015
DIVIDENDS AND DISTRIBUTIONS For corporations, generally in accordance with share ownership subject to preferences S-Corporations, must be pro rata or risk loss of S-Corp status Should provide for tax distributions to the shareholders 18 November 2015
CORPORATE GOVERNANCE UNDERSTANDING THE ROLES Corporations: Shareholders are the owners who provide capital to start the business. Directors are elected by the shareholders and establish management guidelines and decide on key policies and corporate transactions. Officers are elected by the board of directors and carry out the day-to-day operations of the business. Individuals can serve in more than one role (i.e., shareholders who are active in the business can serve as directors and officers, and may hold multiple offices). 19 November 2015
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