The Role of the Attorney
“I’d like to leave/sell my business. Can you help me?” How you answer this question determines whether you will represent your client and his or her company in the future.
No matter your profession, you have three primary responsibilities when working with your business owner clients:
- To inform and to educate the owner about the Exit Planning process
- To facilitate the Exit Planning process by coordinating your activities with those of the owner and his/her other advisors.
- To provide services necessary to ensure the owner’s successful transition from the business.
As an attorney, you offer counsel and insight into the business owner’s overall Exit Plan. You prepare the documents necessary to effect:
- a transfer of ownership among family members;
- a merger or acquisition
- a transfer to an insider
- estate planning
- various stock plans
- key employee benefit planning
- deferred compensation for the owner
- buy/sell and stay bonus planning
In addition, the attorney can create the original planning letter outlining and providing analysis of various tools that are used to attain the objectives stated in an owner’s Exit Plan.
Step One: Setting Exit Objectives
- Meet with owner regarding Exit Planning objectives.
- Counsel owner regarding various Exit Planning techniques.
- Review existing legal documents related to ownership.
- Help to form the Advisory Team.
- Generate hourly revenue for meeting time, usually two to five hours.
- Uncover legal needs otherwise neglected or unknown to be addressed during Exit Planning representation.
- Refer owner/client to Advisory Team members.
Step Two: Determining Value / Price
- Explain appropriate type of valuation.
- Help select valuation advisor depending on owner’s objective (sale to third party or transfer to insider)
- Discuss methods of reducing business value (eg. Unfunded Non-qualified Deferred Compensation Plan).
Create Exit Planning Memorandum based on first two Steps (for a fee of $3,000 to $10,000).
Step Three: Preserving, Protecting and Promoting Value
1. Preserve value
- Conduct Fiscal Year End Planning meeting with all Advisory Team members present.
- Review Entity status (C vs. S)
- Determine applicability of Charitable Remainder Trust
- Determine applicability of ESOP
- Discuss use of lowest defensible value for ownership transfers to insiders
2. Protect value
- Conduct fiscal year end legal audit
- Discuss entity protection, review existing entity
- Discuss and create as necessary off-shore trusts
- Review casualty and liability insurance coverage
- Discuss and review removal of personal guarantees (and of Personal Assets as collateral for business debt)
- Discuss and use lowest defensible value in all Business Planning instruments
- Discuss and create multiple entities
3.Promote Value–Implement Value Drivers.
- Create incentive-based plan to motivate and keep key employees
- Create Non-Qualified Deferred Compensation Plan
- Create Equity Based Plan
- Create Stock Purchase Plan
- Stock Bonus Plan
- Stock Option Plan (ISO and non-qualified)
- Buy Back Agreements
- Meeting time with client, typically 3 – 15 hours.
- Create Exhibit to Planning Letter detailing specific proposal regarding key employee incentive planning and other protection/preservation tools such as:
- Multiple entities
Fees generally between $1500 and $5000.
Review or prepare documents including those related to:
- entity status
- fiscal year end audit
- casualty and liability coverage, and
- personal guarantees.
Fees generally not less than $5000 and as great as $50,000.
Step Four: Converting Business Value to Cash – Sale to Outside Third Party
Tax analysis necessary for owner’s sale of company
- Due diligence required for owner’s sale of company
- Negotiation of sale of business
- Preparation and review of all transaction documents
Opportunity: Representation of Owner/business in sale. Fees between $30,000 and $150,000.
Step Five: Transferring the Business for a Promissory Note
- Create a written plan to transfer company to insiders.
- Draft documents effecting transfer (notes, security instruments, employment and buy back agreements).
- Draft documents providing incentives to key employees not receiving ownership.
Opportunity: Create documents that implement Exit Plan. Generally, fees not less than $5000 up to $25,000.
Step Six: Contingency Planning for the Business
- Prepare buy/sell agreement.
- Prepare stay bonus agreement.
Opportunity: Prepare business continuity documents. Fees generally between $1500 and $4000.
Step Seven: Wealth Preservation Planning
- Perform overall estate planning.
- Focus on design if child(ren) to receive business
- Consider use of GRATs, IDITS, FLPs, LLCs, CRUTs.
- Transfer business interests to children prior to sale.
- Create related entities to be partly owned by children
- Perform charitable income/estate tax planning.
Opportunity: Successful Exit Planning requires sophisticated Estate Planning services: lifetime gifting, GRATs, family limited partnerships, etc. Fees generally between $3000 and $25,000.
I have been asked over time what goes into a Business Plan, here is the start of a recent plan:
Business Strategic Plan – ******* Batteries
Company: ******* Batteries
Is a distributor of truck and auto batteries to supply car shops, auto dealers and trucking companies. The company is a proprietorship and has a book value of $730,000 but it is highly profitable. The market value is now $1,200,000. There are 10 employees, but only one is critical to operations – John’s son Billy.
Business Owner: John *******, age 53
John established the company 20 years ago, and has focused his attention on it almost exclusively, as he has no special hobbies or sports and rarely takes a vacation.
Owner’s Spouse: Elizabeth *******, age 51
Elizabeth is not employed. She has no plans or interest in returning to work.
Owner’s Son: Billy *******, age 30
He worked at ******* Batteries during high school. He completed college and started work in the company at age 26. He handles all sales and is gradually learning the company’s accounting and billing programs. Billy is engaged now, and has just purchased a local home for his fiancé and himself.
Owner’s Daughter: Barbara (*******) *********, age 28
She is married to Reggie ******** who is a minister. She is very active in the small church where he is the minister. They have two small children.
Owner’s Desire: John wants Billy to continue his outstanding job in sales, gradually expanding their customer base. John has observed that Billy has the education, talent, interest and is a very hard worker.
Business Indebtedness: The company has no bank loans. Accounts payable are approximately equal to receivables.
Survivor Income Goal for Elizabeth:
- $60,000 per year. They consider this would be adequate, since the house and all business debts are currently covered by life insurance.
- If the business is willed by John to Billy, he would control most of the income and the family assets.
- If the business was willed to Elizabeth, and then she divided her estate equally, the company ownership would be split between her son Billy and her daughter Barbara, although Barbara has no interest in the company nor does she feel it fits the interest of her husband whose ministry career choice will likely cause them to change locations about every ten years.
Sibling Relationships: Billy and Barbara are cordial, but not real close and Barbara’s husband is devoted to his religious career.
Estate Planning: None. John has focused entirely on the business and has felt that ******* Batteries would provide for Elizabeth. However, he has no idea how this would be achieved. Neither John nor Elizabeth have wills or trusts.
Estate Distribution Objective: John wants to provide an equal distribution of his estate between Billy and Barbara.
Family History: John’s older brother, Samuel, died leaving a fairly large estate to his widow Susie, who has remarried. Susie is very close to her new husband’s children who are always wanting and getting financial support. The family is concerned that if Susie (who has serious diabetes) dies, all of her substantial estate will go to her second husband and that Samuel’s two daughters, who are both self-sufficient teachers, will get nothing.
Income for Spouse: Where would Elizabeth get her income if John died?
Succession Challenge: If the business were left entirely to Elizabeth, how long would Billy run a business if he had no ownership? He and his father have discussed the future and Billy “expects” to be the successor owner – but there is no guarantee. After he is married, Billy may easily become more concerned about these issues. He has commented that his sister Barbara “Knows nothing about the business, and neither she nor Reggie have ever expressed any interest in it.”
John *******: Self-employed income of $186,000
Billy *******: Salary of $4,000 per months ($48,000) plus commissions of $92,000 – total $140,000