Buy-Sell Agreement Overview: Why Your Business Should Have One

Clint Weeder

Business tax planning, investment advisory services, business valuations

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Every small business that hopes to extend its legacy needs to consider a buy-sell agreement. A buy-sell agreement will ensure you can protect the continuity of your business if anything happens to you or another shareholder, like disability or death. This kind of agreement removes any ambiguity in the succession plan and the owners’ exit plan and will protect the interests of employees, customers, other shareholders, their families, and the company. However, while 60% to 70% of small business owners are willing to transfer the business to their heirs, only 15% have a succession plan.

This article targets small business owners who want to avoid potential disagreements or disruptions, which can turn into expensive financial and litigation matters. We will cover crucial aspects of a buy-sell agreement, triggering events, and how to prepare a proper agreement that protects the future for you and your business.

What Is A Buy-Sell Agreement?

A buy-sell agreement is a legally binding contract between business partners that clearly define how their ownership is to be handled in case of a triggering event such as death or if they leave the company. It will help streamline the process, so you aren’t left with the confusion of how to delegate responsibilities or ownership upon a partner’s departure. The agreement is similar to a will that aims to protect the interests of each owner and their beneficiaries.

What Are The Triggering Events In A Buy-Sell Agreement?

As the name suggests, triggering events are formidable situations that no business wants to face. A buy-sell agreement acts as a cushion to prevent any repercussions on the business’ continuity should a member depart. There are five common triggering events.

1. Death

The death of a partner must be considered in a buy-sell agreement. With the agreement, the members can decide what happens to their ownership and how the ownership interest should be valued.

2. Divorce

Divorces can lead to tussles over the ownership of company shares, but buy-sell agreements can dictate how ownership interests will be handled.

3. Termination of Employment

This usually happens when an employee who has ownership in the company is discharged from their duties. A buy-sell will regulate how the employee must sell their interest without causing friction.

4. Bankruptcy

When a shareholder declares bankruptcy or insolvency, the other shareholders can stop the ownership interest from being sold to pay off debts.

5. Disability

Disability, just like death, can bring a business to a standstill. The agreement needs to define the types of disabilities to be covered and the steps to be taken when buying out a disabled partner.

Do You Need A Buy-Sell Agreement?

Every co-owned business should have a buy-sell agreement. This is in the event any of the events listed above afflicts one or more partners. If partners fail to plan for any event, the ownership may pass to a child or spouse who lacks the passion or experience in the company.

Here are reasons a business owner would want to consider obtaining a buy-sell agreement.

1. You’ll Have an Exit Plan For Your Members

A buy-sell agreement will help avoid any negative impacts on the existing relationship among members. Waiting until the last minute to start negotiating places the business in jeopardy. If a partner wants to leave the company or retire, a buy-sell agreement will lay down what will happen to ensure a smooth transition. It will also act as a binding contract, so all parties are protected in case of any bad blood during the split. The business has the power of preventing the leaving partner from further having any influence in the company once they are gone.

2. It Will Give Clear Directions About What Will Happen to a Member’s Portion if They Pass Away

Death can cause emotional turmoil, which can place the company’s ownership in the wrong hands. If something unexpected happens, you want a plan so business operations can continue normally. 

3. Ensures Job Stability for the Other Employees in the Company

The exit or death of a partner can cause confusion and a gap in management, affecting the entire organization. Your employees may panic over their job security and decide to leave or the lack of structure and leadership could cause the company to have to let go of some employees. A buy-sell agreement acts as a protection plan to help create a smooth transition of power which will provide stability for your employees as well.  A succession plan is also suitable for small organizations without adequate resources to support knowledge management programs and solid employee development.

4. Establishes a Set Value for the Different Portions 

The existence of an agreement determines how the business will value the member’s ownership interest. It helps prevent a situation in which a partner may demand more money than what the shares are worth. This clause will come into play if the remaining partner wants to purchase the exiting partner’s portion of the company.

Basics Of Crafting A Buy-Sell Agreement

Having competent advisors at your side will help to ensure you don’t overlook critical factors in the agreement.

1. The First Step Is to Decide Which Agreement Is Best for Your Situation

Usually, there are three types of agreements for an organized and fair handover of the business reins. 

  • Cross-Purchase Agreement: The exiting partner sells their shares to the remaining partners. This type of agreement is typically better for smaller businesses with only a few owners. 
  • Entity-Purchase Agreement: The exiting partner sells shares to the entity which retires the ownership interest. This works well for larger corporations and is known as a stock redemption agreement. For a partnership, it’s called liquidation of interest. 
  • Hybrid Agreement: This type of agreement is a combination of the first two. The partner has to first offer to sell their interest to the entity. If the entity declines, then they can sell to the remaining partners.

2. Draft the Agreement Early on in the Business

You should draft a buy-sell agreement as soon as possible in case a triggering event takes place. This helps establish a plan early on to ensure decisions are made while all partners are level-headed rather than when an event occurs that could influence the agreement plan later on. 

3. Be Specific

The plan should be definitive on what events can trigger the buy-sell agreement due to their unexpected nature. In addition, there should be specific rules on who can buy or sell the ownership interests and under which types of situations.

4. Specify the Valuation Method

How will the value be calculated? Seeking business valuation services will provide a comprehensive picture of your business’s actual value. The valuation considers factors like fair market value, book value, and formula approach. It’s important to note that once the valuation method is decided, it will be extremely difficult to fight the valuation in the future. You can choose to have a valuation clause that directs an expert to calculate the value of the business. Others specify their valuation methodology in the agreement.

5. Take Out Life Insurance Policies

Partners will typically take out life insurance policies on one another so that in case of an emergency, they will have the necessary funds to purchase their member’s shares. The company is the policyholder and submits premium payments and upon the death of a partner, the firm receives the life insurance death benefits. Use a life insurance calculator to estimate how much insurance you and your partners need.

6. Don’t Forget Taxes

Research the tax implications of your buy-sell agreement, as each one comes with different tax requirements. However, proceeds from life insurance are usually tax-free, which reduces the tax burden. 

Conclusion

Running a business has its challenges. However, it also gives a sense of accomplishment. Implementing a buy-sell agreement will help extend the life of your business in case a life-altering event takes place. If you already have an agreement in place, it’s recommended you review it every three years as your business continues to change. If you still have questions about the ins and outs of a buy-sell agreement, McMill CPAs and Advisors are here for you. Succession planning is one of our core services to enable small business owners to develop a comprehensive buy-sell agreement. Reach out to us for help in drafting your Norfolk, Nebraska small business buy-sell agreement.