Category: Working On Your Business

Designing a buy and sell agreement can be a challenge to not only the advisor but also the owners of companies! 

Featured by YOUR BUSINESS WORTH, posted in Buy and Sell Agreements, Company Wealth, Funding your Buy and Sell, Passive Ownership, Selling Your Business, Tax Efficient, Uncategorized, Valuation, Working On Your Business

Factors to consider when selecting the type of Buy and Sell Agreement for your business.(I) 

Before you can design a buy and sell (BS) you need to consider the following:  

  1. Number of owners: the greater the number, the more likely the BS will be a stock-redemption. 
  2. Nature and size of the entity: As a rule, a larger company will call for a redemption BS, or hybrid do to the fact that ownership interests will probably be worth more.   
  3. Value of the entity: The higher the value, greater chance of a redemption BS. 
  4. Relative ownership interests: Because of larger interest in ownership, greater likely hood a redemption or hybrid because of the cost to purchase. 
  5. Ages of owners: If there is a wide disparity in age between owners, greater chance of using a stock redemption or hybrid BS agreement?  
  6. Financial conditions of the owners: The more questionable an owner’s finances are the more likely a redemption/hybrid. 
  7. Enforcement of buy-sell agreement:  If there is a question as to the likelihood of partners reneging on the BS, or unable to fulfill the purchase obligation, the more likely a redemption/hybrid. 
  8. Desires for new cost basis for the purchasing owner: Chances are a cross purchase arrangement would be used if surviving purchasing partner wanted a higher cost basis.  
  9. Health and insurability of the owners: When there are younger or unhealthy partners, the disparity in premiums will tend to adversely affect the other owners, consequently, redemption will be used.  
  10. Commitment of owners to business: Cross purchase or hybrid can be used so the more committed partner can purchase the non-interested partner directly.  
  11. Availability of assets inside of the entity for redeeming the interest: Since some businesses have minimum-asset performance-bonding, a cross purchase BS would be used. General Contractors would be an example.  
  12. State law with respect to entity redemptions: If lightly capitalized, use cross purchase.  
  13. Existence of restrictions under loan agreements on the use of the entity’s assets to redeem equity interests: Loan agreements may have restrictions on the use of assets as they are the collateral for the loans, usually would use cross purchase. 
  14. Family relationships within the business:  Maintaining equal ownership between family members can be a challenge, normally, a cross purchase agreement works the best, unless the business is capitalized to have different classes of stock. 
  15. Professional licensing or other qualification requirements: Licensing and professional designations with, (professional corporations) will have an impact on the type of redemption agreement.   
  16. Type of entity: If a family C corps, there would be concerns that a redemption would be treated like a dividend, if so, they would opt for a cross purchase, if that was an issue (attribution).  

 As you can see, depending on the situation and circumstances of the company, the type of Buy and Sell agreement is not a random decision. Planning and insight must be used.  This comes down to asking the right in-depth questions when discussing the designing of the buy and sell agreement.

(1) Paul Hoods great book:  Buy-Sell Agreements

If you would like to receive a free report on the 19 questions you need to ask yourself to have an efficient Buy and Sell Agreement, email me at:  tperrone@necgginc.com, request: 19 questions.  I will send this to you immediately,

A Great Benefit Every Business Owner Should Be Aware Of! 

by YOUR BUSINESS WORTH, posted in Buy and Sell Agreements, Executive Benefits, Income from your business, Key People_Or Group, Tax Free Income, Team, Uncategorized, Working On Your Business

Over the years in the small business arena, when retirement is mentioned, the discussion usually focuses on programs like 401k, Profit sharing, SEP’S, and Simple Plans.   

 They are all very good plans and every business should offer one of them to their employees for the purpose of having a benefit plan where employees can save for their retirements.   

 However, not every employer wants to take on the burden of funding retirement for their employees for many reasons.  The reasons range from a lack of cash flow, employee groups who would rather take the money home.   

 In situations where the employer feels they would like to use their company to create a benefit for themselves, and not the employees, they should look into an executive compensation plan called the CEEP (Corporate Executive Equity Plan).  The CEEP is a hybrid of a few types of benefit plans used for the higher paid group in companies and for the owners.   

 The term “non-qualified “, refers to a plan that normally is not used for the masses, but used for a selected group of people.  As an example:  Employer A can decide that they want to put a plan in for employee B, C but not employees D-Z.  In most cases the plan itself would not be tax-deductible as a “plan”, however, it can be tax deductible under certain conditions. 

How the CEEP works!  

Mr. Jones owner of the Big Dip Donut shop decides that he wants to allocate $25,000 a year into a retirement plan for himself and no other employees of the company.  For the most part, he can’t have a qualified retirement plan without offering it to the employees.  Even a “Simple Plan”, which is the easiest to implement would have drawbacks.    Continue reading “A Great Benefit Every Business Owner Should Be Aware Of! “ →

A Road Map For A Succession Planning  Essentials For Planning   Creating Your Team Of Advisors 

by YOUR BUSINESS WORTH, posted in Buy and Sell Agreements, Company Wealth, Income from your business, Tax Efficient, Team, Uncategorized, Valuation, Value drivers, Working On Your Business

Who Are They 

Their Role 
Accountant 
  • Develops financial statements 
  • Provides tax advice 
  • Assists in Estate planning 
  • Assists in Business value 
Attorney 
  • Negotiates agreements 
  • Tax Advice 
  • Prepares estate documents 
  • Advises on business structure along with implementation 
Management Team 
  • Manages the ongoing operation  
  • Operational advice and expertise for new owner 
  • Enables business continuity 
Business Appraiser 
  • Estimates fair market value of Business  
  • Provides the credibility of asking price 
  • Advice on how to maximize business value 
Business Broker 
  • Finds buyer and market insight for value 
Financial Advisor 
  • Facilitates and council’s family goals and value 
  • Plans for the future of the estate and distribution 
  • May have the capacity to help fund Buy and Sell Agreements and Deferred Compensation situations 
  • Offers financial advice to all the members 
  • Helps project future financial needs 
Banker-Commercial 
  • Financing options for acquisition 
  • Access to other experts that may be needed 
  • Supports the business transition before and after the acquisition 

Exit Options: 1 

  • Transfer the business to a family member; This represents about 42% 
  • Sell to partners or your employees (directly or through ESOP); This represents about 17% 
  • Sell to a third party; 19% 
  • Partner: 10% 
  • Wind down business -3% 
  •  Don’t know -8% 

Questions To Consider 

  1. Are there one or more family members who want to take over the business?  
  2. Does the family successor have the skills to operate the business and guarantee the return on your investment?  
  3. What are the qualifications and skills someone would need to purchase your business to guarantee the successful transition?  
  4. If you transitioned to your family member, how will your employees, suppliers and customers react?  
  5. What is the most tax-efficient way to pass ownership to family members?   
  6. Will you continue to have a role in the business? 
  7. How will this succession option impact the rest of the family? 

Selling to partners or your employees 

  • Which employees or partners are best suited to purchase your business?  
  • Do they have funds or access to funds?  
  • Will you have to finance part of the sale?  
  • Do they have the management capability to run the business successfully?  
  • Can the business take on debt for this transaction long term?   
  • Where will the purchase price come from?  
  • Do the purchasers have assets as collateral?   

Third party  

  • Who are likely candidates in your industry that would be interested in your business?  
  • Do you want to sell the whole business or only part of it?  
  • Will the potential buyer have the entire financial resources to purchase the business, or would you be prepared to partially fund their acquisition?  
  • What is the most tax-effective way to sell your business?   

 

Case Study#5 Using Corporate Dollars To Keep Wealth Out Of The Business But In Your Pocket

by YOUR BUSINESS WORTH, posted in Company Wealth, Executive Benefits, Key People_Or Group, Strategies of growing business, Tax Efficient, Tax Free Income, Uncategorized, Working On Your Business

This is the case of Joey Bag of Donuts and his pursuit of keeping wealth outside of his business.  You see, over the years working with Joey Bag of Donuts we told him that leaving too much of his wealth in the business can be problematic, especially when the time came when he needed to exit his business.  He heard me tell him many times, that someday he will leave his business by either a death, disability, or retirement, and taking the wealth with you when you need it the most, can be a problem, if you don’t have the right exit strategy.

There are many reasons wealth gets lost in a business when it is sold.  It can range from bad planning to bad luck, but Joey Bag of Donuts always remembered to keep as much of his personal wealth outside of the business as possible.  By the way this is why he purchased his company building and put it in a separate LLC.  Joey Bag of Donuts also believes in putting as much of his income to the company pension plan, again, outside of the business.

We also taught him to have his company support whatever it can legally towards his personal lifestyle.  For example, his cars, gas, some entertainment, health insurance, retirement, and other things are paid for through company.

Joey Bag of Donuts wanted to put more money away for himself and his family’s future, but didn’t want to use his own funds, so why not have the company support more retirement contributions?

We already had a profit-sharing plan, and he was sharing company contributions with his employees.

We decided that a non-regulated plan was the best way to go, so we developed a plan for only him.  The plan is a combination of two concepts.  We call this the CEEP PLAN (CORPORATE EXECUTIVE EQUITY PLAN).

The plan is a discriminatory plan, so Joey Bag of Donuts can pick himself or anyone else he wants, unlike a profit sharing or 401k plan, which is a regulated plan.

THE PLAN:  As you can see, the company made all the contributions, and took the deductions for them.  Joey Bag of Donuts was the sole participant of the plan. His cost was “0” out of pocket and he ends up with almost $800,000 of cash at retirement.  He also could turn the cash into a tax-free income stream.  In this case it was $67,500 tax-free income. The stream of income is worth more than $1,215,000.  Along with that he has a death benefit of $2,300,000 payable to his family tax-free.

THE BOTTOM LINE:  Joey Bag of Donuts gets retirement income using corporate funds.  All the contributions can be applied to just his account.  He also has the use of the account before retirement, like a  “family bank”, along with the ability to withdraw funds tax-free.[1]  There would be no 10% penalty if withdrawn before 59 ½.  Continue reading “Case Study#5 Using Corporate Dollars To Keep Wealth Out Of The Business But In Your Pocket” →

THE SECRETS OF BUILDING A GREAT ORGANIZATION

by YOUR BUSINESS WORTH, posted in Company Wealth, Inside Sale, Key People_Or Group, Passive Ownership, Selling Your Business, Strategies of growing business, Uncategorized, Value drivers, Working On Your Business

I recently read a book called,” The Secrets Of Building A Great Organization”, by Bruce Clinton owner of BusinessWise, L.L.C., a business consulting and coaching firm based in Connecticut.

I found the book to be very interesting because, not only does it provide a road map of management for newer managers, but it re-educates older experienced managers in the most up to date strategies.

Bruce is the first person to mention that there are no magic formulas in being a good manager, however, with the basic strategies that he covers, a good manager, through their own talents, can become a great manager using the strategies Bruce discusses.

Many of the strategies are ones that Bruce uses in his practice as a business coach, and strategies developed while he ran different businesses.

For anyone who is a business owner or running a business, I would suggest this read.  In the book it is mentioned that most business owners don’t consider themselves good managers or they feel they don’t know enough about managing.

Any business owner who does $1-$150 million in annual sales, has 8-200 employees, is family owned and may be facing growth or succession issues, should read this book.

What I really enjoyed about the book is the small details that Bruce covers which are needed to build a successful business.  These are details which are not normally discussed in detail.  The book covers the importance of them.  These are the small details that make all the difference in the world of a business’ success, and Bruce covers them extremely well.  For example:

  • Overcoming communication breakdowns
  • Dealing with levels of incompetence
  • Fitting family members into the business
  • Retaining good employees
  • Building a workable succession plan

Continue reading “THE SECRETS OF BUILDING A GREAT ORGANIZATION” →

Why Use Non-Compete Agreements!

by YOUR BUSINESS WORTH, posted in Buy and Sell Agreements, Funding your Buy and Sell, Income from your business, Inside Sale, Key People_Or Group, Selling Your Business, Uncategorized, Valuation, Value drivers, Working On Your Business

Non-compete agreements (NCA) represent a separate agreement. They could be in an employment contract, or as a separate article in a buy and sell agreement. Sometimes they are referred to as “Covenants not to complete. “

This is based on the possibility that an employee can do harm to a company upon termination.  They could know sensitive information about the company’s operation, owners and employee’s personal information, special operations, and proprietary information to a competing advantage, along with so much more.

Picture a very long-term employee working side by side with the owners, for many years, and then leaving to work for the owner’s competitor.  Certainly, there can be issues.

No compete agreements (NCA), can be used to retain employees also.   It would be very difficult to change jobs within an industry or profession when the leaving employee is limited to compete in a geographic and specific industry for a period of time.  However, non-compete agreements are hard to enforce, because in many instances the agreement has overreached and is very broad in the definition of industry and geographic coverage.

Continue reading “Why Use Non-Compete Agreements!” →

What Status Is The Stock After A Triggering Event?

by YOUR BUSINESS WORTH, posted in Buy and Sell Agreements, Key People_Or Group, Passive Ownership, Strategies of growing business, Value drivers, Working On Your Business

Chris Mercer author of “Buy-Sell Agreements for Baby Boomers Business Owners” addresses a very good question.  Who owns the stock after the trigger event?  After a trigger event, does the affected shareholders retain the rights, risks and privileges of the ownership, things like, voting, distribution, access to financial information, etc., or are their shares converted to another status, such as (example), the “pending sales of stock” status?

If the shares are converted into the new class or status, do they have the right to receive dividends, or interest while in that pending status, if so, who should be receiving it?

The agreement can also have a clause where the stock that is waiting to be purchased would convert to a “non-voting “status prior to being purchased.

There are many times a stockholder has signed personally for a corporate debt.  The stockholder may desire to have the remaining stockholders make an effort to get the departing stockholder off the note, as they have ceased to be a stockholder.

The questions that Chris puts forth are legitimate issues and should be dealt with when business owners and their council set out to design a buy and sell agreement for the company.

Thank you, Chris Mercer, for bringing these topics to the forefront.

Over the years, many of the buy and sell agreements which I have reviewed over the years, do not address or mention these particular situations, and could create a void should the situation arise.

Check Chris Mercers publications.  He puts out very good information that is useful to practitioners.

The Major Reason Why Business Owners Don’t Plan For Maximizing Their Business’ Financial Potential Is Now Eliminated!

by YOUR BUSINESS WORTH, posted in Company Wealth, Strategies of growing business, Uncategorized, Value drivers, Working On Your Business

Many business owners spend the majority of their time running their businesses and inadvertently end up neglecting some of the more important aspects of their business. This is the time where all the details of the success of your business are planned. We call this “working ON your business”.

Business owners can be vulnerable to financial mistakes because of many factors.

One of the key details of a business owner is what happens to their business in the following scenarios:

  1. What happens if I die?
  2. What happens if I become ill, or have a long-term disability?
  3. What happens if I lost my key person, or my key group of employees?
  4. What happens if I can’t control cash flow, or just don’t want to run the business any longer?

Unfortunately, many business owners don’t spend the time working on their business for many reasons.  Many owners think it’s expensive, complicated and very time consuming.

The truth is that by not working on their business, should any of the above scenarios occur, the consequences would be much more expensive, time consuming and potentially devastating.

In our planning practice, we estimate the average time to create a business and estate financial plans for a business owner, is five to ten hours, not including time with attorneys and accountants who are a part of the team.

How does our process work?

Our system is built around planning with the least amount of time needed for the business owner’s time.  To do this we use technology in communication such as phone conferences, video conferences, and audio and video productions to explain our client’s situation.  This allows the business owner to eliminate using work hours for this project.  We can do this technologically with clarity and brevity.  Our plan is focused on brevity for the business owner.

Our Process: 

  1. Viewpoint Meeting: Define what are some of the areas of concern using our Viewpoint System.  This is a 30 minutes conversation.  Our business owners need about ten minutes to prepare using this aid.
  2. “The Selection Meeting”. Once we define the areas of concern, we dig deeper with a 45-minute Selection Meeting. This is where we discuss all of the possible areas where the client may have problems and concerns.
  3. “The Planning Stage” is the longest meeting. This is about 1½ hours.  Prior to the meeting, we send our client material which they can review and prepare on their own time.  This takes them about 20-30 minutes to complete.
  4. The Discovery Meeting is about one hour where we bring together our findings based on their personal situation and discuss which issues and direction of implementation the client may wish to go. Again, our client receives the information to review prior to our Discovery Meeting[i].
  5. Implementation Session: This is where we start implementation needed to solve the issues.  This is the time when all of the client’s advisors work together to get the planning completed.  For example, our findings are discussed with the professional team and look for their advice and suggestions.    Also, this process brings everyone on the team up to date on the business owners’ situation.  This process breeds new ideas and strategies (earlier in the process, I would have been in touch with these advisors between the Discovery and Implementation Meeting). This may be the first time the client has had all of their advisors working together and sharing knowledge about the business owner! 
  6. Semi-Annual or Annual Review:  This is where we move on to the next area of concern; One concern at a time (in some cases, there may be overlapping of concerns and they can be bundled in the planning).  If there are no additional concerns, we review what has been implemented. This is an automatic process, so we are always adjusting as the business situation changes.

For business owners who realize that they need work  on their business, our process can maximize their business’ potential profit, organize them in a timely fashion, and fine-tune them in the future, so they can maximize their “business potential value” when they exit from their business.

[i] We plan for this time, but do not limit this session to a time schedule.

Critical Questions That You Need To Answer If You Own A Business!

by YOUR BUSINESS WORTH, posted in Buy and Sell Agreements, Funding your Buy and Sell, Inside Sale, Uncategorized, Valuation, Value drivers, Working On Your Business

Building a business is hard work. Protecting and preserving it is even harder and overlooked by business owners.

While many owners expect family members to take over the business (69%), very few have actually made plans to make sure their wishes are accomplished (26%), even though they realize the importance of estate and succession planning as is an integrated part of that planning.[i]

A succession plan is complex, time consuming and involves attention to details along with many hard questions which need to be answered for a comprehensive and effective succession plan.  It is also the key element in maximizing the return on the investment of your business. This is the big financial payout, the sale of your business.[ii]

SOME MAJOR QUESTIONS AND ISSUES TO ASK YOURSELF!

What if a shareholder wants to sell their interests?

  • Is there a right of refusal for the other owners?
  • What are the financing arrangements?
  • What are the recourses if you fund the buyout especially if the funding is over a long period of time?
  • What is the arrangement if the business fails, how will you get your money if you financed the sale?

 Who steps in your shoes if you want out? 

Not everyone has the luxury of leaving a business when and how they want to.  Things like death, disability, and situations are uncontrollable.

  • What are your contingency plans when a trigger occurs (death, health, non-voluntary situations)?
  • Do other members of the firm have access and authorization to use funds to keep the business going if there is such an event?
  • Does your family take on personal obligations for financial notes and loans you have signed personally to fund your business operation?
  • Do you have estate documents and health care directives, should you have a disability or become incapacitated?

Taxes- and the planning for them Continue reading “Critical Questions That You Need To Answer If You Own A Business!” →

Disadvantages Of The Buy And Sell Agreement! [i]

by YOUR BUSINESS WORTH, posted in Buy and Sell Agreements, Inside Sale, Selling Your Business, Working On Your Business

Certainly, having a Buy and Sell Agreement (BSA) has many advantages, many of which I have discussed in our past posts (May 2019, Advantages of Buy and Sell Agreements).  However, I would like to go over the disadvantages of a BSA.

RESTRICTIONS ON ESTATE PLANNING

BSA can restrict ownership transfers and consequently management duties. These restrictions can be applied to you also. The restrictions could limit your personal planning by limiting your options for the ownership interests during your lifetime or at death. It may prohibit you from making gifts of your ownership interest to your family. Depending on your planning, your BSA could limit your plans to leave ownership interest to your family. The BSA may require your ownership interest to be sold at your death.

RESTRICTIONS ON FINANCIAL PLANNING 

A BSA can restrict the persons to whom you could sell your ownership interest to and restrict when you can sell it.  An example would be in a situation that you need to sell your interest because you’re in a financial bind. The BSA may require you to sell to your entity or your co-owners, who may not want to buy.

Special election to the defer federal state tax of deceased owners

This could limit an estate owner from using Code Section 6166 which is a way of paying your estate tax over a period of time, giving you the option of paying over a 15-year period, five years of deferral and a ten-year payout.  A purchase from your estate could cause the loss of the right to defer the estate taxes.

A sale of Corporate interests may result in a loss of the entities corporate structure

This could limit the entities right to use its own loss carry back and carry forward losses on a significant change in ownership, which is possible without a well throughout BSA.

The cost of putting together a BSA

It takes time and money to put together a solid buy and sell agreement, Of course this is a disadvantage and it can be expensive, however, in order to have an optimal BSA, you will need to invest time and money.  You will also need a competent council to prepare the necessary documents.  This incurs costs.  Being educated in this strategy is to your advantage when designing your BSA.

A poorly drafted buy sell agreement can be costly:  By failing to carefully work out the terms of buy-sell agreement or by having mismatches between triggering events and the identity of the purchaser versus the funding source, a real mess could be created.

[i] Buy -Sell Agreements for Baby Boomer Business Owners Z. Christopher Mercer, ASA, CFA, ABAR