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May 29, 2018 at 01:46 PM
Starting a business is an invigorating process. All founder energy is focused on the success of the new enterprise.
For that reason, the founders often overlook an essential element of business planning: designing the exit strategy.
Creating a formal buy-sell agreement from the start will mitigate risks that could hinder, or even destroy, your client’s business down the road.
Simply stated, buy-sell agreements are the blueprints that guide any eventual buyout, sale, divorce or death of an owner. Most commonly, buy-sell agreements are put in place to protect the family of an owner if a partner dies, is debilitated or decides to exit or retire, while allowing the remaining owners to move the business forward.
(Related: 4 Key Buy-Sell Agreement Basics)
Another common occurrence is the passing of the baton, or transition of the business ownership to a current employee or outside individual. The buy-sell agreement can include a provision to pay the taxes on the transfer of ownership to the new owner, while protecting the company’s cash flow to keep business operations running smoothly.
An insured buy-out agreement uses life insurance to ensure that funds will be available to pay for the execution of the agreement. Many buy-sell agreements also incorporate disability insurance.
With any business agreement, having a cadre of advisors is critical, and for this particular agreement, having a legal team and a business advisor at the table, as well as a life insurance advisor, can prove invaluable.
Below are the three most relevant buy-sell agreements when it’s time for an owner to give up his or her stake in a company.
- Cross Purchase Agreement: This structure is for two or more parties and is utilized during ownership changes when shares are crossed over to other owners.
- Stock Redemption Agreement: In this structure, the entity, or the business, is the focal point and if shares are exchanged, the entity will repurchase them. This structure gives owner(s) peace of mind that they can sell shares back to the entity, if needed.
- Combination Agreement: This structure gives owners the option to do either of the above, meaning they can sell their stake to either the entity or to other owner(s). The structure of the combination agreement will determine the right of first refusal between owner and equity. This strategy provides tremendous flexibility to both sell and purchase additional shares, and is commonly used to ensure shares remain with the original owners.
A buy-sell agreement could involve a family patriarch with several adult children who love each other, and the business — and spouses or grandchildren who see everything differently.
When that kind of owner lacks a well-designed, well-funded buy-sell agreement, the result could be a failure to treat family members in similar situations in a similar way, emotion-driven decisions about the business, and permanent family rifts.
The most common mistake in developing a buy-sell agreement is owners not properly answering, ‘how much do we need to fund the agreement?’ Using a business advisor to quarterback this process is highly recommended, as too often owners take shortcuts during the process and valuation details are overlooked, resulting in poorly funded buy-sell agreements.
