The GreatBanc Trust Settlement Agreement outlines guidelines for fiduciaries to follow in ESOP transactions involving non-public stock. It emphasizes the importance of the valuation advisor's independence and qualifications. The fiduciary is responsible for determining fair market value through a prudent investigation, considering all relevant information like financial projections. Projections are a key part of valuation but the fiduciary must test their reasonableness and understand how the advisor incorporates them.
ESOPs 101 (Series: Cross-Training for Business Lawyers 2020) Financial Poise
Employee stock ownership plans (ESOPs) are plans regulated by the Employee Retirement Income Security Act (ERISA) and designed to allow employees to invest in the stock of their employer. The shareholder participants/employees as well as the sponsoring company generally receive tax benefits through the use of the plan. And while they are generally touted as designed to promote employees’ interest and efforts in maximizing the value of the company for the benefit of both employer and employees, ESOPs are often used as a method of corporate finance by the sponsoring company.
To listen to this webinar on-demand, go to: https://www.financialpoise.com/financial-poise-webinars/esops-101-2020/
Paying for Litigation- Hourly, Contingency, Third Party Financing & More (Ser...Financial Poise
As the cost and duration of litigation continue to increase, clients have begun demanding fee arrangements that deliver maximum value and best mitigate risk. This webinar explores the mechanics and pros and cons of various fee arrangements, from hourly to contingent to mixtures of the two. We also discuss the increasingly popular option of third-party litigation finance.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/paying-for-litigation-hourly-contingency-third-party-financing-more-2021/
An ESOP plan sponsor must avoid conflict in fulfilling its corporate governance and fiduciary responsibilities. How is this done? This presentation discusses the dangers of wearing multiple hats and how to minimize litigation risk.
Buying or Selling an ESOP-Owned Company: How to Execute a Successful Transaction. The presentation includes a recent case study of the sale of a large ESOP-owned company, discussion of intricacies involved related to an ESOP, and how to execute a successful transaction.
- Importance of structuring - trading trust
- Role of ATO in insolvency of small business
- Liquidator actions to be mindful of
Presenter: Ben Sewell
Sewell & Kettle Lawyers
If you have further questions later please contact me
Email: bsewell@sklawyers.com.au
Crowdfunding from the Start-Up's Perspective (Series: Crowdfunding 2020) Financial Poise
How can businesses use the tools created by the JOBS Act to access capital? This webinar compares raising money online to traditional methods of capital raising. It also compares each of the different titles available under the JOBS Act. Finally, we discuss and compare the differences between security based crowdfunding and rewards based crowdfunding, exploring those instances where such a method would make sense.
To listen to this webinar on demand, go to: https://www.financialpoise.com/financial-poise-webinars/crowdfunding-from-the-start-ups-perspective-2020/
ESOPs 101 (Series: Cross-Training for Business Lawyers 2020) Financial Poise
Employee stock ownership plans (ESOPs) are plans regulated by the Employee Retirement Income Security Act (ERISA) and designed to allow employees to invest in the stock of their employer. The shareholder participants/employees as well as the sponsoring company generally receive tax benefits through the use of the plan. And while they are generally touted as designed to promote employees’ interest and efforts in maximizing the value of the company for the benefit of both employer and employees, ESOPs are often used as a method of corporate finance by the sponsoring company.
To listen to this webinar on-demand, go to: https://www.financialpoise.com/financial-poise-webinars/esops-101-2020/
Paying for Litigation- Hourly, Contingency, Third Party Financing & More (Ser...Financial Poise
As the cost and duration of litigation continue to increase, clients have begun demanding fee arrangements that deliver maximum value and best mitigate risk. This webinar explores the mechanics and pros and cons of various fee arrangements, from hourly to contingent to mixtures of the two. We also discuss the increasingly popular option of third-party litigation finance.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/paying-for-litigation-hourly-contingency-third-party-financing-more-2021/
An ESOP plan sponsor must avoid conflict in fulfilling its corporate governance and fiduciary responsibilities. How is this done? This presentation discusses the dangers of wearing multiple hats and how to minimize litigation risk.
Buying or Selling an ESOP-Owned Company: How to Execute a Successful Transaction. The presentation includes a recent case study of the sale of a large ESOP-owned company, discussion of intricacies involved related to an ESOP, and how to execute a successful transaction.
- Importance of structuring - trading trust
- Role of ATO in insolvency of small business
- Liquidator actions to be mindful of
Presenter: Ben Sewell
Sewell & Kettle Lawyers
If you have further questions later please contact me
Email: bsewell@sklawyers.com.au
Crowdfunding from the Start-Up's Perspective (Series: Crowdfunding 2020) Financial Poise
How can businesses use the tools created by the JOBS Act to access capital? This webinar compares raising money online to traditional methods of capital raising. It also compares each of the different titles available under the JOBS Act. Finally, we discuss and compare the differences between security based crowdfunding and rewards based crowdfunding, exploring those instances where such a method would make sense.
To listen to this webinar on demand, go to: https://www.financialpoise.com/financial-poise-webinars/crowdfunding-from-the-start-ups-perspective-2020/
Published 2004 in the Journal of Employee Ownership Law and Finance
Co-authored by Jim Steiker, this article reviews the legal standards that govern ESOP committees.
The seventh webinar presentation in the M&A Litigation Series examines successor liability and liability based on an alter-ego and other veil-piercing theories. Prevalent misconceptions on successor liability are discussed, as are third party claims against the post-merger entities.
On our agenda:
Myths and Misconceptions about Successor Liability
Veil-Piercing
Third Party Claims
General Liability, Umbrella/Excess Coverage, Commercial Auto-Workers’ Compens...Financial Poise
As a business owner, there are a plethora of choices when it comes to insurance. This webinar touches upon all you need to know about General Liability, Umbrella/Excess Coverage, Commercial Auto Insurance, and Workers’ Compensation insurance.
General liability coverage protects the business from third party suits for Property and Bodily Injury claims. The panelists also look at potential product liability or intellectual property exposure that is not covered. Most business owners understand that commercial umbrella is a must, but how do you determine how much is the right amount? The panelists will also examine why Hired/Non-Owned is important when it comes to Commercial Auto coverage.The panelists will also touch upon best practices for managing employees who drive for your business with their own cars.
The panelists will also cover Workers’ Compensation insurance. Topics discussed include managing the costs of the insurance itself as well as the proper management of workers compensation claims. Other topics discussed include codes and classification errors, how to get money back from the insurer, as well as best practices for Independent Contractors.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/general-liability-umbrella-excess-coverage-commercial-auto-workers-compensation-2021/
Alternative Structures - PO Financing, Factoring & MCA (Series: Business Borr...Financial Poise
Purchase-order financing (P/O financing) is a type of asset-based loan designed to extend credit to a company that needs cash quickly, to fill a customer order. A company may operate with such a small amount of working capital that it cannot afford to pay the cost of producing a customer’s order. P/O financing enables such a company to not turn away business, by borrowing from a lender using the purchase order itself as collateral to support a loan.
Factoring is one of the oldest forms of business financing. Note that the term is “financing” rather than “loan” because factoring is not actually a loan. In a typical factoring arrangement, the company needing financing makes a sale, delivers the product or service and generates an invoice. The factor (the funding source) then purchases the right to collect on that invoice by agreeing to pay the company in need of financing the amount of the invoice minus a discount.
MCA lending is, in summary, an advance on a company’s sales. Financing through a merchant cash advance (MCA) is used mostly by companies that accept credit and debit cards for most of their sales, typically retailers and restaurants. The concept is this: funder purchases a portion of the company’s future credit card receivables for a discounted lump sum. The MCA funder receives the purchased credit card receivables as they are generated either by taking a percentage of the company’s daily credit card proceeds or by debiting a certain amount of funds from the company’s bank account. Depending on the risk profile of the company, it can be a more expensive form of financing for a business compared to other types of financing.
What these three things have in common is that they are each a type of “alternative lending.” Alternative to what? To the type of loan a company can get from a “regulated” commercial bank. This webinar explains these types of financing arrangements, what to consider before entering into them, and provides some tips on how to negotiate them.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/alternative-structures-po-financing-factoring-mca-2021/
Published in the NCEO March-April 2013 Edition of the Employee Ownership Report
SES Chairman & CEO Jim Steiker explains how warrants can be used to bridge the gap in a larger ESOP transaction between bank financing and the full price of the sale.
TROs and Preliminary Injunctions (Series: Newbie Litigator School 101 - Part 1)Financial Poise
Sometimes—often at the beginning of a case—you need the court to take immediate action to protect your client’s interests or to maintain the status quo while the litigation progresses. This webinar discusses procedures and strategies for obtaining temporary restraining orders and preliminary injunctions. The topics discussed include the procedural and substantive requirements for obtaining TROs and preliminary injunctions, some best practices for how to succeed on motions seeking TROs and preliminary injunctions, and how to challenge and defeat those motions.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/tros-and-preliminary-injunctions-2021/
ADR & Settlement (Series: Newbie Litigator School 101 - Part 1)Financial Poise
Many cases are litigated outside of the court system through the use of alternative dispute resolution methods such as arbitration, and the vast majority of cases settle before they reach trial, either as a result of the parties’ efforts or with the help of a mediator. This webinar covers the basics of arbitration and mediation, presenting an effective case to a neutral third party, and negotiating and documenting a successful settlement, either directly or with a mediator’s assistance.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/adr-settlement-2021/
How to Prudently Hire and Retain a Discretionary Corporate TrusteeThe 401k Study Group ®
Most plan sponsors seek to have a retirement plan that provides adequate benefits to their employees, is easy to
administer, is compliant with ERISA fiduciary standards and protects the plan sponsor from legal and financial risk and liability. Working in conjunction with a knowledgeable retirement plan advisor, a discretionary corporate trustee is
uniquely suited to allow the plan sponsor to meet these goals.
An ESOP sponsor may confront conflict when fulfilling its corporate governance and fiduciary responsibilities. This presentation discusses the danger of wearing multiple hats and how to minimize litigation exposure through best practices.
Published 2004 in the Journal of Employee Ownership Law and Finance
Co-authored by Jim Steiker, this article reviews the legal standards that govern ESOP committees.
The seventh webinar presentation in the M&A Litigation Series examines successor liability and liability based on an alter-ego and other veil-piercing theories. Prevalent misconceptions on successor liability are discussed, as are third party claims against the post-merger entities.
On our agenda:
Myths and Misconceptions about Successor Liability
Veil-Piercing
Third Party Claims
General Liability, Umbrella/Excess Coverage, Commercial Auto-Workers’ Compens...Financial Poise
As a business owner, there are a plethora of choices when it comes to insurance. This webinar touches upon all you need to know about General Liability, Umbrella/Excess Coverage, Commercial Auto Insurance, and Workers’ Compensation insurance.
General liability coverage protects the business from third party suits for Property and Bodily Injury claims. The panelists also look at potential product liability or intellectual property exposure that is not covered. Most business owners understand that commercial umbrella is a must, but how do you determine how much is the right amount? The panelists will also examine why Hired/Non-Owned is important when it comes to Commercial Auto coverage.The panelists will also touch upon best practices for managing employees who drive for your business with their own cars.
The panelists will also cover Workers’ Compensation insurance. Topics discussed include managing the costs of the insurance itself as well as the proper management of workers compensation claims. Other topics discussed include codes and classification errors, how to get money back from the insurer, as well as best practices for Independent Contractors.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/general-liability-umbrella-excess-coverage-commercial-auto-workers-compensation-2021/
Alternative Structures - PO Financing, Factoring & MCA (Series: Business Borr...Financial Poise
Purchase-order financing (P/O financing) is a type of asset-based loan designed to extend credit to a company that needs cash quickly, to fill a customer order. A company may operate with such a small amount of working capital that it cannot afford to pay the cost of producing a customer’s order. P/O financing enables such a company to not turn away business, by borrowing from a lender using the purchase order itself as collateral to support a loan.
Factoring is one of the oldest forms of business financing. Note that the term is “financing” rather than “loan” because factoring is not actually a loan. In a typical factoring arrangement, the company needing financing makes a sale, delivers the product or service and generates an invoice. The factor (the funding source) then purchases the right to collect on that invoice by agreeing to pay the company in need of financing the amount of the invoice minus a discount.
MCA lending is, in summary, an advance on a company’s sales. Financing through a merchant cash advance (MCA) is used mostly by companies that accept credit and debit cards for most of their sales, typically retailers and restaurants. The concept is this: funder purchases a portion of the company’s future credit card receivables for a discounted lump sum. The MCA funder receives the purchased credit card receivables as they are generated either by taking a percentage of the company’s daily credit card proceeds or by debiting a certain amount of funds from the company’s bank account. Depending on the risk profile of the company, it can be a more expensive form of financing for a business compared to other types of financing.
What these three things have in common is that they are each a type of “alternative lending.” Alternative to what? To the type of loan a company can get from a “regulated” commercial bank. This webinar explains these types of financing arrangements, what to consider before entering into them, and provides some tips on how to negotiate them.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/alternative-structures-po-financing-factoring-mca-2021/
Published in the NCEO March-April 2013 Edition of the Employee Ownership Report
SES Chairman & CEO Jim Steiker explains how warrants can be used to bridge the gap in a larger ESOP transaction between bank financing and the full price of the sale.
TROs and Preliminary Injunctions (Series: Newbie Litigator School 101 - Part 1)Financial Poise
Sometimes—often at the beginning of a case—you need the court to take immediate action to protect your client’s interests or to maintain the status quo while the litigation progresses. This webinar discusses procedures and strategies for obtaining temporary restraining orders and preliminary injunctions. The topics discussed include the procedural and substantive requirements for obtaining TROs and preliminary injunctions, some best practices for how to succeed on motions seeking TROs and preliminary injunctions, and how to challenge and defeat those motions.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/tros-and-preliminary-injunctions-2021/
ADR & Settlement (Series: Newbie Litigator School 101 - Part 1)Financial Poise
Many cases are litigated outside of the court system through the use of alternative dispute resolution methods such as arbitration, and the vast majority of cases settle before they reach trial, either as a result of the parties’ efforts or with the help of a mediator. This webinar covers the basics of arbitration and mediation, presenting an effective case to a neutral third party, and negotiating and documenting a successful settlement, either directly or with a mediator’s assistance.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/adr-settlement-2021/
How to Prudently Hire and Retain a Discretionary Corporate TrusteeThe 401k Study Group ®
Most plan sponsors seek to have a retirement plan that provides adequate benefits to their employees, is easy to
administer, is compliant with ERISA fiduciary standards and protects the plan sponsor from legal and financial risk and liability. Working in conjunction with a knowledgeable retirement plan advisor, a discretionary corporate trustee is
uniquely suited to allow the plan sponsor to meet these goals.
An ESOP sponsor may confront conflict when fulfilling its corporate governance and fiduciary responsibilities. This presentation discusses the danger of wearing multiple hats and how to minimize litigation exposure through best practices.
Answer 1(A)No, king and queen will not be liable for EPL acc.docxjustine1simpson78276
Answer 1(A)
No, king and queen will not be liable for EPL according to ASA315 (ISA 315) standards.
Auditing standard ASA 315 is applies for a review of a financial report for a financial year or for half year and an audit of a financial report for some other reason. As per this standard, evaluator must get a comprehension of the element and its surroundings, including its inward control, adequate to recognize and survey the dangers of material misquote of the financial report whether because of extortion or mistake, and adequate to plan and perform additionally review techniques. Under this standard, auditor must examine among the engagement group the helplessness of the substance's money related answer to material. The auditor additionally needs to figure out if any of the evaluated dangers are critical dangers that require exceptional review thought or dangers for which substantive strategies alone don't give adequate suitable review confirm. The auditor needs to assess the plan of the element's controls, including significant control exercises, over such dangers and figure out if they have been actualized (Gay, 2010).
This International Standard on Auditing (ISA) deals with the evaluator's commitment to recognize and review the risks of material mistake in the cash related explanations, through appreciation the substance and its environment, checking the substance's inward control. The auditor must perform chance appraisal strategies for the fundamental ID and evaluation of dangers of material error at the budgetary proclamation and affirmation levels. Hazard evaluation systems independent from anyone else, be that as it may, don't give adequate proper review prove on which to base the review sentiment (IFAC, 2009).
In the fundamental case Caparo looked for after the firm Touche taking after a movement of offer purchases of an association called Fidelity plc. Caparo attests that the purchase decisions were based upon mixed up records that overstated the association. They moreover ensured that, as evaluators of Fidelity, Touche Ross owed potential monetary experts a commitment of thought. The case was unsuccessful; the House of Lords assumed that the records were set up for the present shareholders as a class for the inspirations driving rehearsing their class rights and that the evaluator had no sensible learning of the reason that the records would be put to by Caparo (Gay, 2010). For this situation ponder, Impulse acquired a huge advance from a fund organization, Easy Finance Limited (EFL), to give extra working capital like Caparo. So the reviewers are not subject for this (Law Teacher, 2003).
In the reference of Columbia espresso case, it was announced that the auditor would be only subject if the auditor had considered everybody that would utilize the review report arranged by the auditor to settle on any fund or speculation choice (Australian Law of Business, 2010). But for this situation the evaluator just arranged the report.
In the event of a bankruptcy, the debtor or trustee may opt to take legal action in order to recover money or property that was transferred by the debtor prior to going bankrupt. These actions, whereby such transfers are effectively reversed, are referred to as “avoidance actions.” In this webinar, the expert panel discusses the applicable provisions of the Bankruptcy Code, common avoidance actions, and key considerations when planning for and defending against these actions.
Part of the webinar series: COMPLEX FINANCIAL LITIGATION 2022
See more at https://www.financialpoise.com/webinars/
Defending Against Bankruptcy Avoidance Actions (Series: Complex Financial Lit...Financial Poise
In the event of a bankruptcy, the debtor or trustee may opt to take legal action in order to recover money or property that was transferred by the debtor prior to going bankrupt. These actions, whereby such transfers are effectively reversed, are referred to as “avoidance actions.” In this webinar, the expert panel discusses the applicable provisions of the Bankruptcy Code, common avoidance actions, and key considerations when planning for and defending against these actions.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/defending-against-bankruptcy-avoidance-actions-2021/
HunterMaclean ERISA and employee benefits attorney Rebecca Sczepanski made this presentation at the 2015 Savannah Fiduciary Seminar. Her presentation covered a summary of the legal issues regarding fiduciary status, including how to identify ERISA and state law fiduciaries. She provided tips for avoiding or mitigating risks associated with defined plan fiduciary status as well as an update on major fiduciary litigation.
Collateral value is the foundation of all lending transactions, but even the most traditional valuation techniques require a blend of art science and require debtors and practitioners to incorporate their judgment. Where is the line between reasonable judgment and gaming the system to arrive at a valuation that skews the fact pattern to one party’s favor? This webinar presents practice pointers on how to use the ABA Model Rules as a guide to navigating ethical issues in real estate valuation. Model Rules addressed may include those that govern the client-lawyer relationship (Rule 1.1 through 1.3); those that speak to the need for candor toward the tribunal and fairness to an opposing party and counsel (Rule 3.3 through 3.4); and the necessity for truthfulness in statements to others and issues surrounding unrepresented persons (i.e. Rule 4.1 through 4.3).
Part of the webinar series: Ethical Issues in Real Estate-Based Bankruptcies 2022
See more at https://www.financialpoise.com/webinars/
It is a common play in real estate to create a separate operating entity to serve as a tenant and execute a lease between the owner of the property and himself. Typically, this happens in assets which serve as a real estate-based business, such as a retail property. The structured enables the operator to reduce the taxable income of the business and also provide a liability shield for the property owner. However, this arrangement can easily lead to some ethical issues, should the property owner become distressed. Where is the line between a savvy real estate strategy and unethical behavior? This webinar presents practice pointers on how to use the ABA Model Rules as a guide to navigating ethical issues in Insider Lease Agreements. Model Rules addressed include those that govern the client-lawyer relationship (Rule 1.7: Conflict of Interest: Current Clients); those that speak to the need for candor toward the tribunal and fairness to an opposing party and counsel (Rule 3.3 through 3.4); and the necessity for truthfulness in statements to others and issues surrounding unrepresented persons (i.e. Rule 4.3).
Part of the webinar series: ETHICAL ISSUES IN REAL ESTATE-BASED BANKRUPTCIES 2022
See more at https://www.financialpoise.com/webinars/
RESTRUCTURING, INSOLVENCY & TROUBLED COMPANIES 2022: Bad Debtor Owes Me Money!Financial Poise
Sometimes it begins when a client, tenant, or customer starts to slow-pay, with the result that your accounts receivable start to accrue gradually. Other times the issue presents itself more suddenly. Either way, you find your company owed a great deal of money that looks like it may not be collected because your client/tenant/customer has filed bankruptcy, has commenced an assignment for the benefit of creditors, has been put into receivership, or is otherwise just plain insolvent. What do you do? What should you not do? The topics discussed in this webinar include the pros and cons of putting a counterparty into involuntary bankruptcy; when and how you may be able to pursue third parties (like guarantors, directors, or officers) for the amount owed; risks related to preference attack; pros and cons of sitting on a “creditors’ committee” in a Chapter 11; how to negotiate for “critical vendor” protection in Chapter 11; and practical guidance for continuing to provide goods or services to an insolvent counterparty.
Part of the webinar series: RESTRUCTURING, INSOLVENCY & TROUBLED COMPANIES 2022
See more at https://www.financialpoise.com/webinars/
Solution manual for Intermediate Accounting, 11th Edition by David Spiceland...mwangimwangi222
Solution manual for Intermediate Accounting, 11th Edition by David Spiceland, Mark Nelson, Verified Chapters 1 - 21 Complete.docx
Solution manual for Intermediate Accounting, 11th Edition by David Spiceland, Mark Nelson, Verified Chapters 1 - 21 Complete.docx
Solution manual for Intermediate Accounting, 11th Edition by David Spiceland, Mark Nelson, Verified Chapters 1 - 21 Complete.docx
Recently, shareholder groups have sued companies for inadequate disclosure in the annual proxy. They allege that companies provide insufficient disclosure to determine how to vote on “say on pay.” If a company follows SEC guidelines, why is this not sufficient?
Sometimes It Begins When A Client, Tenant, Or Customer Starts To Slow-Pay, With The Result That Your Accounts Receivable Start To Accrue Gradually. Other Times The Issue Presents Itself More Suddenly. Either Way, You Find Your Company Owed A Great Deal Of Money That Looks Like It May Not Be Collected Because Your Client/Tenant/Customer Has Filed Bankruptcy, Has Commenced An Assignment For The Benefit Of Creditors, Has Been Put Into Receivership, Or Is Otherwise Just Plain Insolvent. What Do You Do? What Should You Not Do? The Topics Discussed In This Webinar Include The Pros And Cons Of Putting A Counterparty Into Involuntary Bankruptcy; When And How You May Be Able To Pursue Third Parties (Like Guarantors, Directors, Or Officers) For The Amount Owed; Risks Related To Preference Attack; Pros And Cons Of Sitting On A “Creditors’ Committee” In A Chapter 11; How To Negotiate For “Critical Vendor” Protection In Chapter 11; And Practical Guidance For Continuing To Provide Goods Or Services To An Insolvent Counterparty.
Part of the webinar series: Restructuring, Insolvency & Troubled Companies 2021
See more at https://www.financialpoise.com/webinars/
Solution manual for Intermediate Accounting, 11th Edition by David Spiceland...Donc Test
Solution manual for Intermediate Accounting, 11th Edition by David Spiceland, Mark Nelson, Verified Chapters 1 - 21 Complete
Solution manual for Intermediate Accounting, 11th Edition by David Spiceland, Mark Nelson, Verified Chapters 1 - 21 Complete
Solution manual for Intermediate Accounting, 11th Edition by David Spiceland, Mark Nelson, Verified Chapters 1 - 21 Complete
1. New and Notable ESOP Valuation
Issues
Paul D. Trost
GreatBanc Trust Company (Moderator)
Steve Whittington, CFA
Willamette Management Associates
Christopher Horner
Dickinson Wright PLLC
The ESOP Association’s Las Vegas Conference & Trade Show
November 13-14, 2014
2. 2
Introduction
Paul D. Trost
• Paul is with GreatBanc Trust Company, joining in 2014 from North Star Trust Company,
where he was in the ESOP services group since 2004. He was previously employed by
Duff & Phelps, LLC, where he focused on corporate valuation matters, ESOPs, ERISA,
fairness opinions and related corporate finance transactions. He is an active member of
the NCEO and the ESOP Association as a member of the valuation advisory committee.
Christopher Horner
• Chris is an attorney with the Washington, D.C. office of Dickinson Wright PLLC. His
practice focuses on leveraged ESOP transactions, including the design and
implementation of such transactions. In addition, Chris regularly counsels shareholders,
directors and executives of closely held businesses to craft successful liquidity and
business succession strategies.
Steve Whittington, CFA
• Steve has significant experience in many areas of business valuation, concentrating
particularly on ESOP and other corporate transactions. Steve specializes in the following
ESOP-related services: feasibility studies, post-transaction cash flow analysis,
transaction financing, fairness and solvency opinions, annual employer stock
valuations, and general consulting.
3. 3
Presentation Overview
1. Background of the Department of Labor’s increased scrutiny of ESOP
transactions
2. Valuation topics covered in recent judicial opinions
3. The GreatBanc Settlement Agreement
4. Questions?
5. 5
Valuation and ESOP Litigation
Litigiable Issue Number of Occurences
Standing 32
Fiduciary Status 31
Management of Plan Assets (Non-Stock Drop) 27
Distributions 24
Management of Plan Assets (Stock Drop) 24
Valuation 22
*Source: Employee Ownership Report (May – June 2014) / Volume XXXIV, No. 3. Survey measured court litigation from
1990 through 2012.
6. 6
United States Department of Labor (DOL)
• Valuations have been “an area of chronic problems” that the Employee
Benefits Security Administration has aggressively pursued in the
previous year….DOL is pursuing a “big number” of cases for 2014. The
Focus needs to be on assessing the reasonableness of management
projections of future earnings. Deputy Assistant Secretary Tim Hauser.
• “[V]aluation issues continue to be very problematic.” Assistant
Secretary Phyllis Borzi.
7. 7
Recent Judicial Decisions
• Duty of Prudence Not Implicated by Improper Financial Reporting
• Qualified Independent Appraiser Not an ERISA Fiduciary
• Lack of Qualifications and Independence of Appraiser Contributes to
Disqualification of ESOP
8. 8
Malcolm v. Trilithic, Inc., 57 EBC 2862 (S.D. Ind. 2014)
• Duty of Prudence Not Implicated by Improper Financial Reporting
– Plaintiff alleged that the board of directors, officers and members of ESOP’s
administrative committee colluded or were complacent in the fraudulent
recording of a $175,000 fictitious sale of inventory to bolster accounts receivable
to inflate profitability reported to the company’s lender.
– Plaintiff further alleged that certain defendants breached their fiduciary duties by
falsifying financial reports which caused a material understatement of the equity
value of the employer securities to the detriment of participants and their
beneficiaries, and other defendants participated in the breach or failed to remedy
the breach after receiving notice.
– Held: The defendants did not breach their fiduciary duty by failing to investigate
purported false sale. The plaintiff presented insufficient evidence that purported
false sale had an effect on value of employer securities or raised red flags about
prudence of investment in employer securities that would trigger duty to
investigate by fiduciaries.
9. 9
Perez v. Oden and Thielking (N.D. Fla. Dec 13, 2013)
Qualified Independent Appraiser not an ERISA Fiduciary
• Former shareholder used corporate assets to cover personal expenses and
these transactions were recorded as an asset on the balance sheet (i.e.
advances to officer). The aggregated transactions represented the most
significant asset of the sponsor company.
• Initially, the DOL alleged that appraiser used a book value approach to value
employer securities, which inflated the equity value of the sponsor company
and caused the ESOP to pay in excess of fair market value of the employer
securities it purchased from terminating participants.
• Subsequently, the DOL conceded that the appraiser was not an ERISA
fiduciary, but asserted that the appraiser knowingly participated in the fiduciary
breaches by the former shareholder and trustee because it assisted them in
concealing the misappropriation of the corporate assets.
10. 10
Perez v. Oden and Thielking (N.D. Fla. Dec 13, 2013)
Qualified Independent Appraiser not an ERISA Fiduciary
• Held: ERISA § 502(a)(5), which authorizes DOL to bring a civil action “(A) to enjoin
any act or practice which violates any provision of [ERISA], or (B) to obtain other
appropriate equitable relief (i) to redress such violation or (ii) to enforce any provision
of [ERISA],” does not authorize a suit against a non-ERISA fiduciary for appropriate
equitable relief on grounds of a non-fiduciary’s ‘knowing participation’ in a breach of
fiduciary duty ...in the absence of a prohibited transaction.
• The District Court dismissed all claims against the Valuation Firm and held that the
DOL failed to state a claim upon which relief can be granted under ERISA because (1)
there had been no prohibited transaction by the Valuation Firm, (2) there was no “act
or practice” by the Valuation Firm that violated ERISA, and (3) the remedy sought
(disgorgement of professional fees and an injunction to prohibit all future valuation
work for ERISA covered plans) would not be “appropriate equitable relief” under
ERISA Section 502(a)(5).
11. 11
K.H. Company, LLC Employee Stock Ownership Plan v. Commissioner
Appraiser Neither Qualified Nor Independent for Purposes of 401(a)(28)(C)
• United States Tax Court considered whether IRS abused its discretion
in determining purported ESOP was not qualified under section 401(a)
and trust was not exempt under section 501(a). This question hinged
on, inter alia, whether a qualified independent appraiser performed the
appraisal.
• Section 401(a)(28)(C) requires that a qualified independent appraiser
must perform all valuations of securities that are not readily tradable on
an established securities market and that the standards for appraisers
are similar to those set forth in the regulations promulgated under
section 170(a)(1).
12. 12
K.H. Company, LLC Employee Stock Ownership Plan v. Commissioner
Appraiser Neither Qualified Nor Independent for Purposes of 401(a)(28)(C)
• Treas. Reg. § 1.170A-13(c)(5)(i)(A) provides that a qualified appraiser is
an individual who includes on the appraisal summary a declaration that
he or she holds himself or herself out to the public as an appraiser or
performs appraisals regularly.
– Subject appraiser failed to duly execute statement that the “undersigned holds
himself out to be an appraiser,” thus the ESOP failed to meet this requirement.
13. 13
K.H. Company, LLC Employee Stock Ownership Plan v. Commissioner
Appraiser Neither Qualified Nor Independent for Purposes of 401(a)(28)(C)
• Treas. Reg. § 1.170A-13(c)(3)(ii)(F) provides that the qualified appraiser
who signs the appraisal must list his or her background, experience,
education, and membership, if any, in professional appraisal
associations.
• Furthermore, Treas. Reg. 1.170A-13(c)(5)(i)(B) provides that a qualified
appraiser is an individual who includes on the appraisal summary a
declaration that he or she is qualified to make appraisals because of his
or her background, experience, education, and membership, if any, in
professional appraisal associations.
– Subject appraiser failed to execute the appraisal report and neither the appraisals
nor the appraisal summaries list the information referenced in the Treasury
Regulations, thus the ESOP also failed to meet these requirements.
15. 15
Control Premiums
Perez v First Bankers/Rembar ESOP
• A control premium can be considered in a situation where an ESOP
buys a majority stake of the common stock of the subject company
– The DOL takes the position that an ESOP trustee may pay a control premium for
employer securities only to the extent that an unrelated third party would pay a
control premium [Prop. DOL Reg. §2510.3-18, Preamble §B5]
• Is control in both form and substance passed to the ESOP?
– The ESOP is a “captive shareholder”, does it ever have operational control?
• Must assume the ESOP’s control will not be dissipated within a short
period of time after purchase.
– Multi-stage transactions? Does the ESOP pay a control premium multiple times?
– Creeping control (minority to a majority interest)
16. 16
Control Premiums (continued)
Perez v First Bankers/Rembar ESOP
• The majority shareholder sold his interest in Rembar (87 percent)
based on a valuation that included a 25 percent control premium.
• The DOL alleges that a prohibited transaction (ERISA Section
406(a)(1)) took place because the ESOP overpaid for the company
stock.
• The issue wasn’t why a control premium was contemplated but what
the control premium represented:
– Subordinated note to the shareholder had covenants that gave that shareholder
control of the board of directors of the company
– The note would not be repaid for 10 years
– The shareholder would “control” the company for 10 years despite the fact that
the ESOP paid for “control”
17. 17
Seller Financing
Perez v PBI Bank/Miller’s Health Systems ESOP
• In an ESOP transaction, a valuation advisor is often asked to opine on
the fairness of several elements of the transaction besides the
purchase price itself
– If an ESOP transaction uses leverage, a valuation advisor will look at the
reasonableness of the interest rates associated with the leverage
– This leverage can include subordinated seller notes
• ERISA §408(b)(3)(B) states that a loan to an ESOP is exempt from
§406 if “…such a loan is at an interest rate which is not in excess of a
reasonable rate.”
• Therefore, a transaction’s structure would be deemed “fair to the
ESOP” if the leverage was at this so called “reasonable rate”
18. 18
Seller Financing (continued)
Perez v PBI Bank/Miller’s Health Systems ESOP
Company Bank
ShareholdersESOP
Company obtained $40M bridge loan from
bank at 8.25%
Repay $40M bridge Loan
$40M Loan to
ESOP
(“Inside Loan”)
at 5%
ESOP pays $40M cash for 100% of company
stock
19. 19
Seller Financing (continued)
Perez v PBI Bank/Miller’s Health Systems ESOP
• In the formation of the Miller’s Health ESOP, a series of transactions
occurs, at the end of which the purchase of $40 million in company
stock is leveraged with a “seller note” at an interest rate of 12 percent.
• The complaint alleges that “the selling shareholders’ indirect loan to the
ESOP at 12% was far in excess of a reasonable rate of interest.”
• The DOL judges the interest rate excessive in comparison to the other
interest rates of loans used in the series of transactions.
– The loan from Miller’s Health to the ESOP had a rate of 5.09 percent.
– The loan from the bank to Miller’s Health was 250 bps plus LIBOR = 8.25
percent.
21. 21
The GreatBanc Trust Settlement Agreement
• The settlement focuses on the process fiduciaries should follow in the
context of ESOP transactions.
• The settlement outlines guidelines The Department of Labor expects all
fiduciaries to follow and understand when an ESOP purchases or sells
shares.
• These policies and procedures set the framework for fiduciary conduct
in transactions that involve non-publicly traded stock.
• Is a fiduciary required to follow these guidelines?
22. 22
Selecting a Valuation Advisor
Independence is imperative
• Precludes having performed work on behalf of:
– Plan Sponsor;
– Seller/counter-party
• Not have a familial or corporate relationship with any of the above.
– Fiduciary should collect the information and consider the independence of an
advisor.
23. 23
Selecting a Valuation Advisor
• Feasibility Study-Generally speaking, a feasibility study is a 1)
preliminary value range of the company stock and 2) a cash flow
scenario analysis to determine if the company can accommodate a
levered transaction
• Section B of the Settlement Agreement Attachment
– The Trustee will not use a valuation advisor for a transaction that has previously
performed work-including but not limited to a “preliminary valuation”-for or on
behalf of the ESOP sponsor
• Generally speaking, this provision in the Agreement attempts to remove
a potential conflict of interest for a valuation professional who may do
work for the sellers first, and the ESOP trustee second.
24. 24
Selecting a Valuation Advisor
Qualifications
1. Consider other advisors as appropriate
2. Ask for background/qualifications
3. Review the qualifications
4. Document the inquiry
5. Investigate any civil or criminal actions involving the advisor
6. Check references
Again, the fiduciary should collect the information and consider the qualifications of an
advisor.
25. 25
Information Used in Financial Analysis
Fiduciary is responsible for determining fair market value for which it
should undertake a prudent investigation (good faith)
Consider all relevant facts and circumstances as part of the due diligence
What information is typically applied when evaluating a company?
26. 26
Information Used in Financial Analysis
The information requested, provided, and used must be reviewed and
understood by the fiduciary
• Projections
– Consider the sources of the financial projections provided
– Test reasonableness
– Understand how valuation advisor integrates these into its analysis
27. 27
Projections
• In most ESOP transactions, a valuation advisor will rely primarily on an
income approach, in particular the discounted cash flow (DCF) method
– Projections represent the “best thinking” by company management
– DCF method makes the most sense from a “going concern” standpoint (i.e.,
value in continued use)
• Projections are a vital part of the valuation process
– Company “controls” projections
– Valuation advisor “controls” the discount rate
• How does the fiduciary take all of this into account?
28. 28
Projections (continued)
Perez v GreatBanc Trust (Sierra Aluminum)
Fiscal Years Ending on or Near December 31, Terminal
2014 2015 2016 2017 Year
$000 $000 $000 $000 $000
Present Value of Discrete Net Cash Flow
Projected EBITDA 8,149 9,660 10,110 10,110 10,110
Less: Depreciation and Amortization Expense (2,253) (2,400) (2,550) (2,550) (2,500)
Equals: Projected EBIT 5,896 7,260 7,560 7,560 7,610
Less: Provision for Income Taxes (2,064) (2,541) (2,646) (2,646) (2,664)
Equals: Debt-Free Net Income 3,832 4,719 4,914 4,914 4,947
Plus: Depreciation and Amortization Expense 2,253 2,400 2,550 2,550 2,500
Less: Capital Expenditures (7,500) (2,500) (2,500) (2,500) (2,500)
Less: Net Operating Working Capital Additions (480) (463) (75) (25) (50)
Equals: Net Cash Flow to Invested Capital (1,894) 4,156 4,889 4,939 4,897
Multiplied by: Partial Period Adjustment 1.0000 1.0000 1.0000 1.0000 1.0000
Equals: Adjusted Net Cash Flow to Invested Capital (1,894) 4,156 4,889 4,939 4,897
Multiplied by: Present Value Factor 0.9578 0.8787 0.8062 0.7396
Equals: Present Value of Discrete Net Cash Flow (1,814) 3,652 3,941 3,653
Equals: Total Present Value of Discrete Net Cash Flow 9,432
Present Value of Terminal Net Cash Flow
Terminal Year Net Cash Flow 4,897
Multiplied by: Anticipated Long-Term Growth Rate 3%
Equals: Anticipated Terminal Year Net Cash Flow 5,043
Multiplied by: Direct Capitalization Multiple 16.7
Equals: Terminal Year Value 84,057
Multiplied by: Present Value Factor 0.7396
Equals: Present Value of Terminal Year Net Cash Flow 62,170
Value Summary
Total Present Value of Discrete Net Cash Flow 9,432
Plus: Present Value of Terminal Net Cash Flow 62,170
71,600$
Equals: Indicated Market Value of Invested Capital
on a Marketable, Controlling Interest Basis
[Rounded]
29. 29
Projections (continued)
Perez v GreatBanc Trust (Sierra Aluminum)
• The DOL is concerned that projections provided by company
management may be overstated.
– Projections are provided by company management; if the seller is part of
management—potential conflict
• The Agreement requires the trustee (may be with the help of the
valuation advisor) to identify in writing the individuals responsible for
providing the projections
– Direct conflicts of interest
– “Agents” of someone who may have a conflict of interest
– How did the Trustee consider these conflicts
30. 30
Projections (continued)
Perez v GreatBanc Trust (Sierra Aluminum)
• The Agreement states that any analysis of the projections should
consider how they reconcile to the company’s historical five-year
averages.
• Metrics listed in the Agreement include:
1. Return on assets
2. Return on equity
3. EBIT margins
4. EBITDA margins
5. Ratio of capital expenditures to sales
6. Revenue growth rate
7. Ratio of free cash flows to sales
31. 31
Projections (continued)
Perez v GreatBanc Trust (Sierra Aluminum)
• Document, document, document
– If the company is projected to meet or exceed its historical performance (or the
historical performance of the group of comparable companies)
– Any adjustments made to the projections by management or by the valuation
advisor or by the trustee
– If any adjustments are made, why they are reasonable
• PROCESS, PROCEDURE, AND DOCUMENTATION MATTER
32. 32
Review of Financial Analysis
How is the information used and how is the valuation performed?
• Methods
• Significant assumptions
• Financing part of the transaction?
• Ability to repay debt and address other obligations
• Specific metrics
• Overall impact of the transaction on the company
• Fairness—financial perspective and relative to other parties
Most importantly, the Trustee will determine the prudence of accepting and
relying on the valuation analysis.
33. 33
Other Information Used in Financial Analysis
The information requested, provided, and used must be reviewed and
understood by the fiduciary
• Financial Statements
– Are financial statements audited?
– How much scrutiny is appropriate? Reliability?
– Does the fiduciary need to conduct its own audit?
• Comparable Publicly-Traded Companies Information
– What is comparable and why?
– Historical and projected comparability
34. 34
Other Notable Matters
• Fair Market Value of Debt
• Claw-Back
– Consideration of any arrangement to protect ESOP against possible adverse
consequences
• Other Professionals
– May delegate fiduciary authority to another qualified professional to aid the ESOP
trustee in exercise of duties if prudent
36. 36
Disclaimer
• The Presenters gather their data from sources they consider reliable; however, they do not
guarantee the accuracy or completeness of the information provided within this presentation.
The material presented reflects information known to the Presenters at the time this
presentation was written, and this information is subject to change. The Presenters make no
representations or warranties, expressed or implied, regarding the accuracy of this material.
The views expressed in this material accurately reflect the personal views of the authors and do
not necessarily coincide with those of their employers.
• The Presenters do not provide accounting, tax or legal advice. The information and material
presented herein is provided for informational purposes only and is not intended to constitute
accounting, tax or legal advice or to substitute for obtaining accounting, tax or legal advice from
an attorney or licensed CPA.