A lawyer should not only design and verify the buy-sell agreement, but accountants and business valuation experts should also review the valuation rules of the agreement to identify contradictory or ambiguous formulations before they are concluded. When evaluating, certain words and phrases have a specific meaning for the expert (as “fair value” and “fair market value”) and the occasional use of these words may lead to unintentional conflicts in the future. An expert can read the evaluation rules and make proposals that help identify ambiguities. These proposals could also address “uncontrollable” versus “control” values, discounts due to lack of marketing, and rebates due to lack of voting rights. Accountants and appraisers can help identify valuation language issues and help business owners and their lawyer choose a more accurate valuation language. The importance of plain language can be shown by an example from the authors` professional experience: a buy-sell agreement between the owners of a holding company contained a clause summarizing: “The auditor will determine the fair value and the parties will act on the basis of that value. However, if such a party does not agree with fair value and the transaction has not been concluded within 90 days of the date of the expert`s report, the price of the transaction is the fair market value” (emphasis added). In this case, “fair value” had some meaning, and “fair market value” had a completely different meaning. The difference between the value calculated on a “fair value” basis and the “fair market value” was millions of dollars. In addition to the obvious business benefits of a purchase-sale agreement, these agreements can also support each owner`s estate planning goals. The typical goals of estate planning are: the capture of an owner`s interests.
While business owners may find it difficult to find anything positive about allowing an owner to mortgage their interest as collateral for a loan, there may be a benefit of conscience. If the purchase-sale contract does not allow the owner to mortgage an interest, the creditor may argue that the provisions of the contract do not apply to the involuntary transfer of enforcement. By expressly allowing an interest rate to be pledged, the purchase-sale agreement can give non-defaulting owners a chance of recovery or the opportunity to buy the interest from the creditor. √ If the company is an S company, it is advisable to include in the purchase sale provisions ensuring that the company does not lose its S status. In a situation where owners have the wisdom to seek the advice of a lawyer, accountant or business valuation expert, every person should know who represents each professional, whether it is the SME or one of its owners. It is the responsibility of a professional to say this clearly. Knowing who the lawyer or accountant represents is important for how the purchase-sale contract is designed and audited. The least painful condition of a purchase and sale was attested by this writer not by a death, but by a handicap and a good agreement.
The owner concerned had suffered a concussion during an alleged football match and, after several months of treatment, it was clear that his ability to make the books had been impaired and that his ability to concentrate would not disappear. The Small Business Administration reports that the United States has nearly 30 million private companies, of which nearly 6 million employ multiple people. The owners of many of these private companies are baby boomers (people born between 1946 and 1964) who are now in the early stages of a massive shift from work to retirement.