Good planning can often begin with owners transferring ownership interest to family members, without giving up control of the business. This type of planning sets the stage for the future passing of the baton and can be highly effective.
The long-term plan of business transition can also focus on who can run the business operations once the senior guard leaves the business. Just because a family member has worked in the business, it does not mean they can run the business effectively.
Business Transition And Succession Planning requires many years to develop the right plan. It starts with finding the right employees to train for the job, and the right people to run the business (this includes family succession situations).
I have found that “Passive Ownership” can be a particularly good possibility for many business owners. They stay in control and slowly give away the duties over time while running the business, but at the same time slowly disengaging from the business. It gives them time to help prepare the junior successor for the job.
The procedure for “Transition Planning” is critical for a long-lasting understanding amongst the family members, both in and out of the business. Without clear communication to the family members, conflict and bad feelings may occur.
- What would happen to the business if one of the partners died?
- Who will buy your interest in the business?
- Will the company, shareholders, or the heirs keep the right to own the shares. Are the party’s mandated to buy your shares?
- Where will the capital to buy the shares come from?
- Do you want the deceased shareholders/beneficiaries to have the choice to run the business?
- What is the funding mechanism to buy the business?
- How is the life insurance structured to help fund the purchase price?
- Is the same true for a disability? If so, what is the definition of a disability to trigger the sale. Is the disability funded?
- What are the rules if a partner wants to sell to a 3rd party?
- Is there a “put” right; to have the company buy the shares of a disputed share holder?
- What are doing concerning incentives to key employees?
- How are you supporting retirement through the company?
- What are you providing in executive compensation to the key people active owners, and officers of the business?
There are many more questions that need to be answered. The elements of your business succession plan will normally be in your business succession agreement and incorporated in the operating or stockholder’s agreement.
Operating Agreement:
An agreement which regulates the company and manages the relationships between the members of the company.
Buy-Sell Agreement
An agreement between the business owners to buy and sell interest in the business at a specified price upon a “triggering event”, such as death, disability, divorce, voluntary withdrawal, non-voluntary withdrawal, bankruptcy, and retirement.
This document is important and serves to obtain a fair price for the stockholder and a path for a smooth transition for the parties involved.
Type of Buy and Sell agreements:
- Cross purchase: This is between stockholders to buy departing stockholder’s shares
- Redemption agreement: The entity (business) buys the shares
- Hybrid/ a combination of above: A “wait and see buy and sell”[1]
Provisions in the buy and sell agreement
The sale price of the departing owners’ interest and how it will be paid
- Installment
- Sinking fund
- Cash
- Life insurance[2]
Other Methods To Transfer Property:
Although the buy and sell agreement is an effective method to transfer property, other methods, such as ESOPs, compensation plans, and pension plans have a place in funding.
There are other areas and issues in your business planning that need to be addressed at some point and redefined over time.
The valuation of your company should be done by a qualified and certified appraiser. Business owners seem to think they know the value of their business, however, in more cases than not, they are incorrect.
Having A Team Of Financial Experts Will Help You Plan Your Business And Your Estate.
My suggestion is to create a team of advisors who can meet periodically and report on the status of the business to the “team”.
I have found this to be a valuable tool as everyone gets on the same page in the planning process and understands what the owner wishes to accomplish.
Over the years I have created the team consisting of the CPA, attorney, banker, investment, insurance and other professionals who come together and review what the status of the planning is up to that point for the business owner. Normally, the team consists of the professionals who have a relationship with the business owner and are currently doing planning for them. Unfortunately, each professional has their own agenda, and rarely knows what the other professional are doing for the business owner.,
In most cases this is the first time the advisors have communicated with each other. I have always thought this was in the best interest of the business owner and was prudent to use these resources. Putting the business owners’ advisors in the same room once a year could be the best planning strategy, they can employ.
The Bottom-Line Thought
The solutions and strategies are in abundance to solve the issues. The problem is defining what the owner wants in their plan.
[1] A combination of the redemption and the cross purchase. Usually, the stockholder or trust owns the life insurance on the partners. Normally driven by tax issues and positioning.
[2] Life insurance is normally the least expensive way of funding the death benefit when compared to alternatives. The life insurance can also play a role in providing funds to help stockholders purchase interest in the company.
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