We routinely advise clients on various business transactions encompassing the entire evolution and life cycle of a company, with issues ranging from choice of entity for organizational purposes, to the sale, merger or dissolution of the entity, all of which include careful analysis and consideration of antitrust laws, corporate governance, executive compensation, information technology, corporate, partnership and individual income tax, securities and regulatory related matters.
Since we routinely represent lenders and creditors, in representing business entities we have a strong knowledge base for advising companies with respect to how the “other side” views and approaches a transaction.
We also have extensive experience in negotiating, drafting and closing asset-based transactions, stock-based transactions, and agreements regarding mergers and other acquisitions, divisions and dissolutions.
On a daily basis we represent companies of all sizes and across diverse industry groups with respect to ordinary course of business matters including general contractual matters, covenants not to compete, employment and consulting agreements, stock incentive and option plans, contracts and other instruments and documents and counsel corporate boards of directors, officers and shareholders regarding governance matters.
Our core competencies in the area of Business Transactions include:
Corporate and Business Governance and advising Board of Directors and Management
Business Formation and Choice of Entity
Contracts and Agreements Engaged in Ordinary Course of Business
Mergers, Acquisitions and Tender Offers and related tax Matters,
Medical, Dental and other Professional Entity Law, and
Commercial Financing Law.
Corporate finance law has become an increasingly complex field in recent years. Our seasoned corporate finance attorneys have the knowledge, experience, capability and personal network to deliver “best of class” service to our clients.
We regularly provide commercial finance legal counsel to businesses and other issuers, investment banks, lenders, borrowers and other parties in corporate finance related transactions including the private placement of securities, venture capital financings, merger and acquisition financing, management and leveraged buyouts, tender offers, debt financings with banks and other financial institutions and spin-offs, restructurings and recapitalizations.
As such, we have substantial experience and contacts in the corporate finance arena to help our client’s businesses take the next step. Our team of corporate finance lawyers represent clients in a wide range of industries including e-commerce, social and digital media, biotechnology and medical technology and devices, retail and consumer packaged goods, mobile applications, software and interpretative data, food technology and power generation.
Our corporate lawyers bring a practical, results-oriented, and pro-active perspective to business law. We serve as corporate lawyers for Arkansas-based companies, as well as national and international businesses. On a daily basis, our corporate lawyers counsel clients on a vast array of corporate, securities and commercial matters, ranging from those related to routine operating issues to those more complex tax-driven transactions requiring a more specific and in-depth skill set and knowledge base.
We regularly advise clients on such matters as corporate governance, board and management composition and procedures, committee compensation and procedures, best practices for boards, committees and officers, special committee formation and execution, crisis management, stated and federal securities laws, employee compensation, technology transactions and employment law.
Our corporate law practice focuses heavily on strategic deals including mergers, acquisitions, and divestitures as well as intergenerational transfers and succession planning. Our corporate attorneys analyze alternative forms of business organizations and are heavily involved in the drafting and negotiation of shareholder and operating agreements.
A substantial focus of Smith Hurst is the representation and counseling of entrepreneurs. As a result of this focus, our lawyers have provided legal counsel to hundreds of entrepreneurs starting new businesses. We have first hand, in-depth and sophisticated legal and practical knowledge and experience in forming companies and related choice of entity considerations, equity structures, negotiations with investors and lenders, intellectual property rights, executive compensation, protection of confidential and proprietary information and contractual relations with third parties such as vendors, customers and consultants.
Our interdisciplinary approach coupled with our breadth and depth of the practice of entrepreneurial services, allows us to serve as a strategic adviser and counselor through each stage of a private company’s growth. Our Entrepreneurial Services practice brings a no-nonsense, reality-based focus to the legal needs of entrepreneurs and emerging companies.
Our executive compensation lawyers are able to develop innovative plans to meet our client’s needs.
Our executive compensation attorneys have extensive experience in and routinely counsel our company clients with respect to all aspects of executive compensation law including compensation arrangements, equity-based incentive plans, employment and severance agreements and deferred compensation. We regularly design and draft equity and other compensation plans that play a significant role in driving the growth of start-up and emerging companies.
The Smith Hurst executive compensation attorneys also work with our mergers and acquisition attorneys to address human resource and liability issues that often arise in business transactions.
Financial Institutions and Banking
Our team of banking law attorneys has extensive depth and experience working with financial institutions in banking and banking-related issues, including state and national banks and bank holding company matters such as tender offers, mergers, commercial and residential lending transactions.
In the complex world of banking and finance, Smith Hurst offers sophisticated solutions in the area of financial institution law. We endeavor to provide a host of services to complement our traditional lending transaction services for those financial institutions seeking a full-service law firm. We frequently prepare loan documentation and provide legal opinions in matters related to lending transactions.
We also have experience working on lending transactions involving HUD-secured financial obligations. We have represented financial institutions with respect to revolving and term loans for lending facility, debt restructuring and property acquisition and development, including multiple participant loans and syndications.
Privacy and security of financial information continue to develop as increasingly important arenas of concern for financial institutions. Our banking attorneys remain abreast of the changes in federal and state regulations and assist our clients in drafting the necessary policies and procedures to protect sensitive information. As part of our commitment to our clients and our community, members of the Smith Hurst banking law team are happy to serve as members of advisory boards for a number of Arkansas banking institutions.
Health Care Professionals, Practices and Ambulatory Surgery Centers
Smith Hurst has a presence throughout the State of Arkansas in representing clients within the health care industry. Many of the region’s for-profit and non-profit health care companies, hospitals, surgery centers, facilities and health care providers rely on Smith Hurst’s health care lawyer for advice and counsel.
Our clients include ambulatory surgical facilities wholly-owned by physicians as well as joint ventures involving physicians and hospital, independent physicians, medical practice groups, endoscopy centers, practice management companies, retail pharmacies and lenders and investors involved in health industry transactions.
Our health care lawyers are able to advise our clients with respect to the legal implications of their day-to-day business activities as well as those special matters such as formation and creation of a medical-related entity, capital investment and mergers, acquisitions and other transactions and extraordinary events.
Privacy and security of health information continues to develop as an increasingly important area of concern for health care providers. Our health care attorneys are acutely aware of the changes in federal and state regulations and assist our clients in drafting the necessary policies and procedures to protect sensitive information.
Information Technology and E-Commerce
We help our clients navigate through the complex issues of IT law that often arise when developing, licensing or acquiring information technology. In today’s economy, such technology drives almost every company’s operations and growth. Our information technology lawyers handle the countless aspects of information technology and e-commerce transactions ranging from small, one-time license agreements to technology joint ventures to multiparty global outsourcing deals.
Our multifaceted approach to the technical, business and legal issues surrounding information technology law allows us to be a value-add to any transaction on which we work. For our provider-side clients, we represent software and mobile application developers, outsourcers, content providers, infrastructure and network providers, and application service providers. For our user-side clients, we represent companies that use technology in a wide variety of industries, including financial services, transportation, power energy, nanotechnology, manufacturing, entertainment and retail.
Mergers and Acquisitions and Reorganizations
We frequently represent our clients with respect to merger acquisitions, joint ventures and strategic alliances, dispositions, spin-offs and other divisive transactions, management and leveraged buy outs and reorganizations. These types of transactions typically involve various legal issues, including antitrust, consumer protection, real estate, tax, securities, corporate finance and products liability related issues.
Our mergers and acquisitions attorneys also help clients evaluate strategy and alliances through due diligence investigation and ensure that relationships are established with careful attention to compliance with applicable law. Our mergers and acquisitions lawyers have helped buyers and sellers in all areas of due diligence, including comprehensive review of portfolios and contracts to ascertain potential risks and liabilities associated with transactions on both the buy and sell side of transactions.
With respect to company reorganizations, our attorneys provide solutions based upon minimizing tax costs and maximizing intrinsic value and financial return. Reorganization structures include the consideration of strategic acquisitions or dispositions, tender offers and share exchanges, tax-free transactions including forward and reverse triangular mergers and multi-step transactions, redemptions, recapitalizations and liquidating transactions.
New Markets Tax Credits
Our attorneys have an extensive understanding and substantive experience in serving as legal counsel to parties involved in New Markets Tax Credit transactions, involving both leveraged and non-leveraged transactions and for-profit and not for profit, tax exempt entities, and have successfully closed many New Markets Tax Credit transactions. These transactions are acutely document laden and tax-sensitive but yield substantial economic benefits to those businesses and communities that qualify for such transactions. Smith Hurst is pleased to advise those businesses, investors and lenders who advance and further economic revitalization to qualifying distressed areas through the utilization of New Markets Tax Credits.
Professional Service Companies and Professionals
The legal issues that confront professional service companies and professionals, such as physicians, dentists, lawyers, engineers, architects and accountants are typically similar to those that pertain to non-professional service providers; however, professional service companies and providers are routinely faced with a more intense regulatory environment which necessitates a heightened level of understanding and appreciation for properly advising and counseling professionals in their business transactions and activities.
Our attorneys have extensive experience in representing professional service providers in their practice activities, including regulatory compliance and representation and filing matters before their applicable state governing boards as well as the formation and organization of professional corporations and limited liability companies (including relationship documents among partners and shareholders) and the successful transition of professional practices and the acquisition of other practices in compliance with applicable rules and regulations, with particular experience with medical and dental professionals and clinics, ambulatory surgical facilities, accountants and accounting firms and attorneys and law firms. Our professional service attorneys work within the firm with our taxation attorneys, intellectual property law attorneys, information technology attorneys, and executive compensation attorneys to ensure our clients receive well-rounded advice on the issues confronting their organizations.
Our real estate lawyers represent developers, lenders and real estate brokerage firms in connection with real estate transactions. Our real estate attorneys have been serving the complex needs of the Northwest Arkansas real estate community for many years. Our counsel includes matters with respect to purchasing and selling real estate and construction, financing, development, management, and the operation of commercial, industrial, and residential projects; the public and private offering of various types of real estate securities; securitized lending transactions; leasing on behalf of landlords and tenants; and real estate restructurings on behalf of lenders and borrowers.
Our real estate attorneys work with clients with real estate loans, construction and development loans, as well as interest rate swaps, letters of credit, deferred (Section 1031) tax exchanges and convertible mortgages. In addition, we represent local, regional and national real estate developers, investors, landlords, tenants, and lenders in numerous development projects, including office buildings, shopping centers and hotels.
Retail Consumer Products and Services
As a result of being located in close proximity to the world headquarters of Walmart, the world leader in retail and consumer products, our retail lawyers have acquired substantive experience in representing many growth companies in retail law matters across the consumer and retail products industries, as well as venture capital firms that seek to invest within these industries. Our retail law practice ranges from formation and organizational matters including capital raising, through contractual agreements (such as supply chain agreements, marketing and advertising agreements, retail representation agreements, distribution and sales agreements, joint venture agreements, data research agreements, consulting agreements) and into mergers, acquisitions and divestitures. As retail law continues to grow into the e-commerce market, our retail attorneys are mindful of the technology changes and issues this market presents.
Areas of focus within our retail law practice include:
•Advertising, marketing and consumer protection
•Sourcing, supply chain and distribution
•Products liability advice
Our securities attorneys possess a strong knowledge base in securities law, primarily as it relates to privately-held companies and the private placement of securities, including both convertible debt and equity securities. At Smith Hurst, we believe strongly in providing a comprehensive approach to business.
The securities law group has extensive experience in both Arkansas and the region in assisting clients with regulatory matters, private placements of securities, and related equity financing matters. As a result, we are able to provide valuable industry knowledge and experience to identify potential partners to help our clients grow their businesses in an effective manner.
Securities law services we often provide relate to structuring private placements of securities, tender offers, executive compensation and stock option matters and preparing and completing compliance and exemption with the Securities and Exchange Commission and state securities departments. Areas of focus within our securities law firm practice include:
•Private Placement of Securities including pursuant to Regulations D of the Federal Securities Act of 1933 and Section 4(6) Exemptions (crowd funding)
•Resale of Privately Placed Securities, including pursuant to Rule 144
•JOBS Act Counsel
•State Blue Sky Compliance Matters
All of our tax attorneys who practice in the field of tax law have obtained a Masters of Laws in Taxation (LL.M.) degree from New York University School of Law, universally respected as the preeminent tax program in the world. Our tax lawyers regularly advise clients on the tax aspects of all types of businesses. We routinely render tax counsel regarding entity formation, corporate and pass-through taxation, including Subchapter S corporations, corporate reorganizations, acquisitions, spin-offs and other dispositions, joint ventures, financings and restructurings. These tax considerations can often determine the form, structure and feasibility of the contemplated transactions.
Our tax group is complemented by the firm’s trust and estate and private wealth planning practice which renders sophisticated, personalized estate planning and tax advice to high net worth individuals and families. The work of our private wealth planning lawyers reflects the firm’s thoughtful, innovative and discreet approach as applied to intricate trust, estate, charitable and other highly personal planning matters. Smith Hurst has been recognized as a Tier 1 Law Firm in the fields of Tax Law as rated by Best Law Firms in America.
Tax-Exempt and Non-Profit Organizations
Our non-profit lawyers routinely establish and advise organizations on how to obtain and maintain their income tax exemption. At Smith Hurst, we work with our clients to establish the right non-profit structure from an organization’s beginning in order to provide the right footing to carry out its tax-exempt mission. We have extensive knowledge and experience in corporate governance and compliance matters which allows us to serve the specialized needs of our nonprofit clients, including boards and management, on issues such as fiduciary responsibilities, conflicts of interest, directors’ and officers’ coverage, and indemnification. We help develop best practices and prepare governance guidelines, bylaws, committee charters, conflict-of-interest policies and ethical conduct statements.
We often advise clients with respect to tax-exempt fundraising and financing and on regulations governing private foundations, including self-dealing, jeopardy investment and excess business holding rules as well as the rules on domestic and foreign grant making. We also assist clients in the formation of new nonprofit organizations, reasonable compensation issues, restrictions on lobbying and political activities, unrelated business taxable income, and the rules for supporting organizations and donor-advised funds.
Trade Secrets and Employee Mobility
Trade secret law can be a complicated area of the law with many nuances. Trade secret manipulation, misuse, misappropriation and theft and the litigation that arises from it has exploded in recent years as the world has become ever more dependent on technology. Handling these fast-paced and immediacy driven disputes, when often times the client’s business is hanging in the balance, requires experience, anticipation and advanced preparation. Our attorneys have advised and represented many companies, entrepreneurs, investors, and start-up founders in the area of trade secrets and employee mobility and do so on a daily basis.
Trade secret law and employee mobility law differs, quite dramatically, from state to state. Accordingly, clients typically must apply different policies, use different contracts, and plan risks differently when they have multi-state operations.
We focus our practice of law in this area primarily with respect to:
Trade Secret Law
We routinely advise clients on issues including trade secret identification, inevitable disclosure, and threatened misappropriation.
Depending on the jurisdiction, non-competition covenants and non-solicitation covenants can be an important part of the legal landscape for litigants and mobile employees. Understanding the risks when hiring employees from a particular state, and understanding one’s rights with respect to departing employees located in different states, and we render advice in this regard to our clients on a regular basis.
Preparations to Compete and Fiduciary Duty
Fiduciary status can transform the risks when employees plan to leave and form a new business, posing important legal questions for employers, departing fiduciaries, and those who hire them. We routinely advise clients regarding what the law permits and prohibits when this occurs.
NDA Disputes Between Businesses
Not every trade secret law dispute involves mobile employees. We frequently have advised clients where business partnerships break up and the parties dispute ownership of their work together.
Trusts and Estates, Private Wealth, Planning and Family Office Representation
Our Trusts & Estates, Private Wealth Planning and Family Office Representation practice is not limited to the needs of only well-established individuals and families. Rather, as a result of our expansive entrepreneurial services practice we also have a strong clientele base of younger entrepreneurs, executives and professionals who are planning their personal affairs in anticipation of their future successful endeavors. We believe that our approach to this type of client is different from our peers – we have an integrated approach that combines tax and estate-planning fundamentals with our extensive understanding of how business actually operates. This approach allows us to focus both on lifetime benefits and planning for succession. We know that there is nothing more important to our clients than their families and businesses and work with them to ensure that their goals and objectives for their families and businesses are properly designed and implemented. We have substantial experience in all aspects of estate and private wealth planning and the administration of trusts and estates and are skilled in the complicated tax and probate laws governing the transfer of assets. That said, we are also sensitive to the many family and personal issues that are an inherent part of this area of the law. We represent clients from a variety of backgrounds, across all walks of life. Our extensive representation of corporations and other businesses has resulted in a special and focused emphasis on estate planning for business owners. This area of our practice focuses on planning strategies for crucial “transition events” in the life of a business owner, including sales and reorganizations. Our lawyers practicing in this area of law also help business owners with “succession” planning, looking to the eventual passage of the business on the owner’s death or retirement.
Although historically the gift and estate tax rules were fairly consistent and not subject to any substantive change, in more recent years, they have been subject to frequent change and certainly the topic of heated Congressional and public debate. As a result of the numerous changes to the gift and estate tax system and rates, strategies continue to be developed for reducing taxes. Today’s most important planning tools, such as family partnerships and limited liability companies, grantor retained annuity trusts, life insurance trusts, split dollar life insurance plans, perpetual (dynasty) trusts, and grantor trust sales were virtually unknown in past decades. Further, recent significant tax law changes have created material uncertainty concerning the future of the transfer tax system. To effectively respond, clients must now consider the use of creative new provisions in their wills and estate planning documents. An important part of our practice in this area of the law is to identify which of these tools and responses is appropriate for a particular client and to aid in implementing them.
A client’s plan could involve simple wills and powers of attorney or could be a more sophisticated plan with a variety of trusts and entities. We recognize that there is not one plan that fits all clients, and we won’t begin to try to fit our clients into a cookie-cutter plan. In all planning that we do, we strive to tailor a plan that addresses each client’s unique goals for their family, passes ownership of business and real estate and minimizes the tax obligations and risk exposure for our clients and their descendants. Techniques and services that we often provide to our clients include:
- Planning and preparation of simple and complex wills and trusts, including for multiple generations of family members
- Life insurance planning with the use of trusts, split dollar plans and other financing options
- Planning for the transition of ownership and management of closely held family companies and other family assets, including arrangements to accommodate the differing interests of younger-generation family members
- Charitable planning, including forming and advising private foundations, charitable remainder trusts and charitable lead trusts
- Planning for business succession including the use of buy-sell agreements and insurance
- Lifetime gifting using limited liability entities and trust techniques such as GRATS, QPRTS, CRUTS and CLATS
- Probate and administration of wills and trusts
- Minimizing gift, estate and generation-skipping transfer taxes through the appropriate use of trusts and other entities designed to take maximum advantage of legitimate exemptions and other measures acceptable under current law
We also have assisted executors in overseeing the administration of large estates and handling the frequent legal, tax and accounting work required with such estates. We are prepared to assist in carrying out various executional functions, such as collecting, valuing and disposing of assets and maintaining all estate records. In these projects, we are typically assisted by an experienced group of fiduciary accountants, investment advisors and administrators. Frequently, our practice in this area of the law includes the representation of existing trusts and their trustees. Important steps can be taken to reduce taxes and preserve wealth, as well as to ensure that the needs and desires of trust grantors and beneficiaries are effectively served over time. For example, the effective exercise of powers of appointment over “grandfathered” generation-skipping trusts may postpone the imposition of tax for an additional generation.
Our lawyers who focus their practice in this area of the law are experienced in reducing the effective rate of estate tax through lifetime planning. A significant aspect of our work involves helping our clients transfer an increased portion of their assets to beneficiaries on an after-tax basis and developing the appropriate legal structures, such as trusts and partnerships, to hold and manage wealth over time.
Venture Capital, Private Equity; Private Placement of Securities and Emerging Markets
Our attorneys have a substantial practice in representing clients with matters regarding angel based, private equity and venture capital funds, capital formation and raising and the documentation and structuring of investments in portfolio companies, with a particular emphasis in the private placement of securities. With more than twenty years of experience in Arkansas and throughout the United States, the venture capital and private equity attorneys of Smith Hurst have substantial experience and contacts to assist our clients’ businesses in taking their next steps for growth and development. Our venture capital law group often provides sophisticated legal counsel to individual financiers and investors, angel funds, company management, private equity firms and venture capital firms seeking to invest capital in companies as well as counsel emerging businesses seeking capital from such sources. We have a vast amount of experience in leveraged buyouts and acquisitions, management buyouts and the formation and operation of private equity funds and funds of funds. We appreciate the legal, business and financial issues facing emerging and intellectual property driven companies and strive to work with these companies to successfully obtain capital and financing from other sources. We also have substantial experience in tax, securities and entity laws that provide a solid foundation with which to provide advice to these clients.