Prudent business owners establish buy-sell agreements if there are partners or shareholders in the business, and sometimes even in a one-owner business. With a buy-sell agreement, the owners agree that if one owner leaves the business because of death, retirement, disability, or other triggering events, the remaining owner(s) will buy out that owner or the owner’s estate.
Too often, however, business owners use canned buy-sell agreements, with little thought given as to how the contract best fits their particular needs.
FAILURE TO FUND
One of the most common mistakes business owners make is failing to properly fund a buy-sell agreement. Let’s say two partners, each owning half the business, agree to buy the other out in the event of death or other triggering event. However, how is the remaining owner going to pay for the other half of the business?
Few owners will have the cash, and banks will be reluctant to loan, especially if the business is still young and unproven. Bankers will question how the business, having just lost a key person, can service the debt of a new loan.
A new partner could be brought in, but the remaining owner may not want the new partner. The most common solution, though not the only one, is for a life insurance policy to be taken out on each partner or shareholder in the amount of the value of the interest of the owner.
There are many different methods of structuring the policies (ownership of the policies by the business can have severe tax consequences, for example), so business owners should work with a qualified financial advisor.
DECIDING THE PURCHASE PRICE
This may seem an easy question in the beginning, when the owners mutually agree on the value of the business. However, what happens several years down the road? What is an acceptable evaluation to the Internal Revenue Service? If the owners have not re-valued the business each year, there could be serious disputes. If one owner leaves in a way that is detrimental to the business (such as taking clients), should the departing owner receive a smaller price for his or her interest?
ALL OWNERS MAY NOT BE EQUAL
Buy-sell agreements are usually easier to develop if the owners have equal shares of the business. However, what if there is a majority owner? The majority owner may not want the minority owners to buy his or her stock, preferring to have family members or a key employee take over. A standard buy-sell agreement may not allow this to happen.
Perhaps two, completely different, buy-sell agreements are needed. One for the minority owner might call for the interest to be sold to the majority owner(s). The majority owner might wish to have an agreement that calls for other family members to acquire his or her shares. Perhaps a stock redemption agreement may be the most suitable arrangement for one of the owners.
Nearly all buy-sell agreements allow for the death or the retirement of the owners to trigger the buy-sell option. Sometimes overlooked is the disability or divorce of an owner.
In the event of divorce, for example, the stock could end up in the hands of the spouse, which the remaining owners may not want. Other triggering events can be the firing of a minority owner, or the personal bankruptcy of one owner.
REFUSING THE RIGHT OF FIRST REFUSAL
A common provision in buy-sell agreements is the right of first refusal. The departing owner cannot sell his or her interest without first offering the remaining owners the opportunity to buy it. This may sound like it puts each owner in control, but in reality that is not always the case.
A minority owner of a small business, for example, will probably have a hard time finding an outside buyer willing to pay for fair market value for a minority interest.
On the other hand, if the departing owner does find a buyer, the remaining owners may find it difficult to come up with the money to buy the owner out in order to avoid bringing in an undesired new co-owner.
By tailoring an agreement to your needs, these and other common buy-sell agreement problems can be anticipated and avoided.