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Course Details

Course Information
  • smart_display Format

    On-Demand

  • signal_cellular_alt Difficulty Level

  • work Practice Area

    Corporate Law

Date & Time
  • event Date

    Thursday, June 24, 2021

  • schedule Time

    1:00 p.m. ET./10:00 a.m. PT

  • timer Program Length

    90 minutes

Credit Information

  • This 90-minute webinar is eligible in most states for 1.5 CLE credits.

$297.00
CLE
ALL

This CLE course will advise corporate counsel to family-owned and small businesses on the issues related to the potential application and impact of minority discounts in buyouts, sales, and, ownership disputes.

Faculty

Jay R. McDaniel
Member
Weiner Law Group, LLP

Mr. McDaniel is an experienced business litigator and counselor who focuses his practice on business divorce, corporate governance and intellectual property disputes including copyright, trademark and trade secret litigation. He has represented publicly and privately held clients in a range of industries, from internet startups to established businesses in construction, entertainment, information technology, importation, distribution, banking and construction. Mr. McDaniel has focused on corporate governance disputes involving closely held corporations, often referred to as business divorce, since the mid-1990s. He has counseled businesses and their principal owners through complex business divorces in a broad range of industries and professions. These include both litigated and negotiated breakups of closely held corporations, limited liability companies and partnerships. Mr. McDaniel writes regularly on business divorce and is the editor and principal author of the Business Divorce Law Report.

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Brett Margolin
Principal
BLDS, LLC

Dr. Margolin provides economic analyses in litigation. His active business valuation practice in corporate governance and bankruptcy matters focuses on appraisal actions, solvency opinions, and the type of private-company dissolution litigation that has become known as “business divorce.” The business divorce matters also leverage Dr. Margolin’s extensive experience evaluating economic damages in commercial litigation, including intellectual property and contract disputes, and frequently address issues of personal goodwill and excess compensation. His practice also regularly evaluates lost earnings damages in employment and personal injury matters and has addressed issues of statistical and financial modeling in unclaimed property audits and litigation. Dr. Margolin has testified in a number of state and federal jurisdictions, including the Delaware Court of Chancery.

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Description

Corporate counsel of small businesses should consider the effect disputes among the owners on the company's value that often is part of the resolution of these disputes. Recent cases have affirmed the contract principles that allow parties to set values and valuation methodologies for equity interests, whether shares in a closely held corporation, membership interests in a limited liability company, or partner interests in a general partnership. Courts favor the enforcement of agreements with buyback provisions. Knowing when and how marketability and minority discounts apply is a critical element of representing the closely held business in transactions or disputes.

Parties have wide flexibility in setting up buyback provisions and formulas for equity valuation. Parties should thoughtfully evaluate and clearly define the terms for buyback provisions used in operating agreements, buy-sell agreements, option agreements, and other contracts. The parties can use a market value concept that would allow applicable discounts to be considered, or statutory standards of value that may exclude such discounts. Case law supports parsing the valuation process even more discretely and allows agreements to use different values and discounts or premiums in different circumstances as the parties see fit.

Parties may want to revisit their valuation provisions currently in play. Even agreements that are decades old or that result in the under-valuation of the enterprise will likely be enforced as representative of the current intent of the parties. It is critical that the principals agree on a valuation that reflects the current owners' views of the value of the business. Most case law does not overrule statutory processes and other public policy considerations.

Listen as our authoritative panel discusses how and when shareholder activism and minority discounts impact an equity interest's value The panel will discuss best practices for reviewing and revising valuation provisions in current governance documents and buy-sell agreements. The panel will address the various valuation methodologies and how corporate documents should anticipate issues with potential discounts.

Outline

  1. Buyback agreements
    1. Marketability
    2. Minority discounts
  2. Shareholder activism
  3. Document review and revision
    1. Governance documents
    2. Buy-back agreements
    3. Option agreements

Benefits

The panel will review these and other key issues:

  • What impact can ownership disputes have on valuation of equity interests?
  • Will any applicable valuation methodologies accurately determine the present value of the enterprise?
  • When are minority discounts applicable in an equity buyback?
  • How should counsel assist in determining the value methodology established in corporate governance documents and/or buy-sell agreements?
  • When should value adjustments be made to corporate documents to reflect business growth?