In many small or family owned businesses providing for the orderly transition of ownership and control of businesses from a senior or departing shareholder to the next generation, key employees or to third parties is essential for the survival and continuing success of the business.
Older owners whether they be shareholders of corporations or partners of partnerships want to sell their interest for the highest price to provide for sufficient funds for their retirement years. Where an installment sale is used to effectuate the sale of their ownership interest, the selling shareholder needs legal safeguards and protection to assure that they will receive all of their payout over time.
The remaining shareholders or the buyers of the business do not want to overpay for the business so as to insure its continuing viability. Any deal must be structured so that it is profitable to the remaining or acquiring shareholders.
There are many competing considerations involved in this process, so negotiations will be needed to carve out a workable and enforceable agreement with the proper legal and financial protections for both parties. The real goal and trick here is to ensure that the deal will actually work for the departing shareholder and the remaining shareholders or buyer; namely, the departing shareholder is fairly and adequately compensated for the value of his shares and the business continues successfully after the transition and such continuation is financially viable and worthwhile to the remaining shareholders or partners.
In addition, the tax implications for the parties involved need to be considered since the tax concerns of the buyer and seller may not be aligned.
These transactions require finesse and a clear sense of all the parties interests. If the deal overly favors one side, the success of such a transaction will be jeopardized.
To help insure success, the contracts and documentation must be thoughtfully structured and prepared. For example, here are some (but by all means not all) of the important non-tax factors and provisions that need to be considered in any shareholder or partnership agreement or sale of a business.
Many shareholder agreements set a definitive retirement date to provide for a smooth and predictable transition between senior and junior ownership interests in a family context. Even in non-family contexts, this provision has many advantages. In many cases, it takes many years of lead time to plan and provide for this momentous transition.
The parties must determine whether services will be performed by the departing owner after the sale of his interest in the business. This senior member of the firm may possess special skills, expertise, knowledge and contacts that may be very valuable and in some cases imperative to effectuate a smooth and successful transition.
The parties need to negotiate an acceptable contractual arrangement for the departing owner if it is desirable for this senior member to continue working for the organization. This will require an employment or consulting agreement that provides for services to be performed for a contractually agreed amount of compensation for an amount of years to be determined by the parties.
The retiring partner must be given adequate financial security and protection to insure that all deferred payouts will be made. The following are some of the legal provisions used to ensure payment for any deferred payout under the sale agreement:
In addition to these provisions, there may be other protections built into a comprehensive sale agreement to protect the owner if not paid in full.
Often times the retired owner is given the right to block mergers or a total sale of the business or other changes to the business until full payment is made on any installment sale. Usually such transactions can take place if the sale and any retirement payment obligation is paid in full prior or at the time of such sale or contemplated change.
Often times the retired owner is given the right to block the sale of a line of business unless the sale and retirement obligations are paid in full prior to the contemplated transaction.
Agreements may provide the remaining or acquiring partners with the right to change the payout to a retiring partner due to certain behavior that jeopardizes or harms the financial well being of the organization such as improper client contact or interference with business operations, malfeasance, fraud or misrepresentation.
At some point in time, limits need to be placed on allowable activities and contact with clients after retirement to ensure retention of valuable clients or customers. The use of a covenant not to compete provision is generally required to protect the business and its remaining principals.
The selling partner may insist on key man or other insurance on the key remaining partners to ensure payment of the outstanding obligations under the buy out contract.
Well drafted shareholder or partnership agreements provide for a buyout trigger and often at a lower amount of money than the normal buyout figure if the owner engages in various illegal or immoral activities including but not limited to sexual harassment or public embarrassment to the organization.
Some agreements contain provisions that require forced retirement for lack of performance. In addition, sometimes transitional employment agreements can be terminated early due to lack of performance or violation of the terms of such agreement.
The above discussion just touches the surface of the legal considerations involved in any exit strategy concerning a change in control and stewardship of an organization. For more on succession planning see Succession Planning for Family & Small Businesses.
Tax implications must be considered and can have a dramatic impact on the planning, structuring and documentation of any exit strategy and on the ultimate legal agreements.
Every situation is unique so having experienced tax and corporate counsel is essential to effectuate a comprehensive agreement that can give each party what they need while simultaneously insure the continued existence, vitality and success of the business.
Steve is an excellent corporate attorney who has a deep understanding of corporate law, taxes and estate planning. He’s been extremely helpful to me in keeping my many companies and business ventures organized, focused and squeaky clean. He’s very strong in estate planning and wealth preservation as well. Finally, his follow through is air tight and utterly dependable.
Fred Marshall, February 27, 2009