Protecting Your Business’s Future: The Critical Role of Buy/Sell Agreements

Business owners should strongly consider buy-sell agreements to safeguard the interests of both the business and its owners. These agreements are invaluable in setting clear guidelines for ownership transitions in various situations, from unforeseen events to changes in business dynamics. They typically cover:

• Regulation of the owners' relationships

• Management of the business

• Transfer of ownership interests

• Privileges and protections for owners

Buy/sell agreements help mitigate risk by preparing for unexpected events, ensuring business continuity, and avoiding costly disputes that can arise without proper planning. Let’s dive into the key components of buy-sell agreements, triggering events, and methods for determining a purchase price.

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Triggering Events in Buy/Sell Agreements

Buy/sell agreements are activated by specific "triggering events" that require the sale or transfer of an ownership interest. These events typically fall into three categories, each representing a potential risk to the business:

1. Third-Party Sale Triggers

   Business owners are often concerned about a potential sale to outsiders, as a new owner could disrupt the company’s decision-making process. To prevent unwanted transfers, such as shares falling into the hands of an ex-spouse following a divorce or creditors following bankruptcy, buy/sell agreements often include protections against third-party sales.

2. Owner Viability Triggers

   An owner's physical or mental incapacity can impact the smooth operation of a business. Buy/sell agreements ensure that the company has a plan in place to manage ownership transitions in the case of death or disability. In many cases, the agreement may also outline the use of life or disability insurance as funding mechanisms for the buyout.

3. Relationship Severance Triggers

   When an owner leaves the company, whether through resignation, retirement, or termination, it can create complications for the remaining owners. A buy/sell agreement mitigates this risk by defining the terms for how shares will be handled, preventing a former owner from joining a competitor or disrupting the company's future.

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Key Provisions in Buy/Sell Agreements

A well-structured buy/sell agreement should include provisions that address potential challenges and outline clear solutions. These provisions help ensure a smooth ownership transition:

• Purchase Price Determination

  Methods for determining the purchase price can vary. Common approaches include:

• Fixed price (e.g., book value)

• Agreed-upon formula (e.g., multiple of earnings)

• Agreed-upon methodology (e.g., market-based)

• Third-party appraisal by a qualified business appraiser

• Restrictions on Transferability & Rights of First Refusal

  To protect existing owners' interests, buy/sell agreements may restrict the transferability of shares. This provision ensures that owners cannot sell their shares to outsiders without first offering them to other owners or the business itself.

• Employment & Non-Compete Clauses

  These provisions help protect the business from former owners who may attempt to start a competing company after leaving. The agreement can restrict such actions, safeguarding the company's market position.

• Call & Put Options

  Call and put options allow owners to buy or sell shares at a predetermined price, giving them control over the timing and terms of ownership changes.

• Funding & Terms of Purchase

  Buy/sell agreements often specify how the buyout will be funded, such as through insurance proceeds, company profits, or loans. This ensures the transaction is financially manageable for all parties involved.

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Types of Buy/Sell Agreements

There are several types of buy/sell agreements, each with its own advantages depending on the business structure and ownership:

1. Cross-Purchase Agreements

   In a cross-purchase agreement, individual owners purchase life insurance policies on each other. Upon a triggering event, the remaining owners buy out the departing owner’s shares.

• Pros: Owners maintain control over their shares; favorable tax treatment for surviving owners.

• Cons: Becomes complicated with multiple owners due to the number of policies required.

2. Entity-Purchase Agreements (Stock Redemption)

   In this arrangement, the business itself buys the departing owner’s shares, using a single insurance policy on each owner.

• I’ll be discussing this in greater detail next month as the Supreme Court has just issued a ruling that affects how entity purchases are taxed moving forward.

3. Combination of Third-Party & Business Purchase Arrangements

   This hybrid address both cross-purchase and redemption arrangements and may provide right of first refusal provisions for the remaining owners and the business.

• Pros: Offers flexibility to decide at the time of the event; suitable for changing business circumstances.

• Cons: More complex to structure and manage due to the number of options available.

More on Methods to Determine the Purchase Price

Valuing a business for a buy/sell agreement is essential and can be approached in several ways:

• Fixed Price

  A simple approach where the owners agree on a fixed price for the shares. However, this method may become outdated quickly if not regularly updated to reflect changes in business value.

• Agreed-Upon Formula (e.g., Book Value or Multiple of Earnings)

  Formulas offer a straightforward method of valuation, such as using a multiple of the company's earnings. This method is low-cost but can oversimplify the valuation process, potentially leading to inaccuracies.

• Agreed-Upon Methodology (Market-Derived)

  This method employs an agreed-upon market-based valuation approach to calculate the price. It provides more accurate results than formulas, particularly for businesses that undergo rapid changes in value.

• Appraisal by a Qualified Business Appraiser

  An appraisal performed by a third-party expert can ensure an accurate and fair valuation. While this is often the most reliable method, it can be time-consuming and expensive.

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A well-crafted buy/sell agreement is crucial for any business with multiple owners. It provides a clear plan for ownership transitions, helps protect against unexpected events, and ensures fairness for all parties. Whether you opt for a cross-purchase, entity-purchase, or a combination of both, having a buy/sell agreement in place will help secure the future of your business and avoid costly disputes.

It’s essential for business owners to work closely with legal and financial professionals to tailor the agreement to their specific needs, ensuring it is regularly updated as the business grows and changes.

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Fiduciary Financial Advisors, LLC is a registered investment adviser and does not give legal or tax advice. Information presented is for educational purposes only and does not intend to make an offer or solicitation for the sale or purchase of any securities. The information contained herein has been obtained from a third-party source which is believed to be reliable but is subject to correction for error. Investments involve risk and are not guaranteed. Past performance is not a guarantee or representation of future results.

Fiduciary Financial Advisors does not give legal or tax advice. The information contained does not constitute a solicitation or offer to buy or sell any security and does not purport to be a complete statement of all material facts relating to the strategies and services mentioned.