In this article we discuss business succession planning and explain how to use buy-sell agreements to plan for an owner’s retirement. We explain three different options to plan for a business owner’s retirement with buy-sell agreements, including: the company purchasing a retiring owners shares through a lump sum payment, the company purchasing a retiring owner’s shares through installment payments, and the gradual transfer of a retiring owner’s shares to the next generation.
A buy-sell agreement is a contract between business owners to provide for ownership succession should an owner wish to disassociate from the company, should the company wish to terminate an owner’s interest, or should an owner die or become disabled.
Buy-sell agreements are an excellent tool to plan for an owner’s retirement. In the absence of a succession plan, the retirement of an owner can be economically painful for any remaining owners, if not impossible for the owner who seeks to retire.
In the absence of a succession plan, the owners of a company face the following problems when an owner wishes to retire:
A well-drafted buy-sell agreement can solve these problems by providing answers to the following questions in advance:
Owners negotiating a buy-sell agreement for the retirement of an owner should be creative to ensure that the terms of the agreement fit the specific needs of the owners in question. Below are a few alternative options for how to structure a buy-sell agreement for owner retirement.
A buy-sell agreement may provide that when an owner reaches certain benchmarks, the other owners are required to purchase his or her shares at a certain pre-agreed value should he or she seek to retire. Similarly, the agreement may provide that if the owner wishes to sell his or her shares at any time, the company either has a right of first refusal.
The simplest option is for the company to simply be required to pay a lump sum for the shares at the time that the purchase provision is triggered. This is often attractive to the retiring owner, because he or she will have immediate access to the purchase price. However, this option may be problematic, because the owner may not have any certainty that the other owners will be able to come up with the lump sum when required.
For this reason, a lump sum payment may be coupled with a reduction of the purchase price below fair market value or a longer notice period. For example, if a retiring owner gives three years notice of his or her intention to retire, this allows for the other owners to plan for the purchase of his or her shares more comfortably than in the case of a six-month notice period.
Depending on the impact of the owner’s retirement on the company’s creditworthiness, companies that are planning for this retirement method may want to keep enough liquid funds to pay for some or all of the purchase. This has the downside of preventing the company from reinvesting this money into growth or paying it in dividends.
Another method to provide for an owner’s retirement is to have some or all of the purchase paid in installments over several years pursuant to a promissory note. Payment is generally guaranteed by using the company itself as collateral.
The unpaid balance of the value of the owner’s shares will typically bear interest. This method may be attractive to the retiring owner, because he or she will ultimately receive a larger sum from the company which will be paid in a fixed periodic amount over the course of many years. In this sense, it will serve a similar function to a pension.
In this scenario, the owner’s shares are generally transferred to the other owners or the company immediately, rather than over time as payments are made. This method is also usually attractive to the remaining shareholders, because the retiring owner will no longer be involved in management of the company (as in the third method we will discuss), and the remaining owners will not be required to raise a lump sum on short notice (as in the first method).
This method for retirement planning is best when the company is financially and operationally strong, because the retiring owner bears the risk that the company will default on the installment plans and go out of business.
The final method we will discuss is similar to installment payments except that instead of transferring stock to the remaining owners immediately, the remaining owners will purchase the retiring owner’s stock over time and the stock will be transferred gradually as payments are made.
This solves the problem of an owner relying on the company to be well-managed by the other owners in order to continue to receive payments. However, this method may be problematic because the retiring owner may not want to continue to be involved in the company and the remaining owners may not want to continue to partner with an owner who may no longer be fully motivated. In addition, the retiring owner will have less and less control over company decisions as stock is transferred, which may lead to an awkward transition period.
Disclaimer: The information provided on this blog is intended for general informational purposes only and should not be construed as legal advice on any subject matter. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship. Each individual's legal needs are unique, and these materials may not be applicable to your legal situation. Always seek the advice of a competent attorney with any questions you may have regarding a legal issue. Do not disregard professional legal advice or delay in seeking it because of something you have read on this blog.
Kevin O'FlahertyKevin O’Flaherty is a graduate of the University of Iowa and Chicago-Kent College of Law. He has experience in litigation, estate planning, bankruptcy, real estate, and comprehensive business representation.
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