This is the final article on business buyout agreements. In Part I we've covered the basic situations where it's prudent for business owners to create buyout agreements. We've discussed the major components of the buyout agreements, addressing the circumstances under which co-owners can compel each other to sell their interest in business, the right of first refusal and forced buyouts. The main question that still needs to be answered is how to calculate the appropriate price of business, and what will be the payment terms. We address this and other issues below.
Methods of valuation To prevent lengthy and foreseeable disputes over the appropriate value of the share, valuation method must be agreed upon.
Independent appraisal With this method, a third party neutral professional appraiser (preferably, a pre-selected one) determines the value of the company. The main advantage to this method is that it uses an objective and flexible standard which reflects the current value of the business, taking into account such difficult to value assets as company's goodwill, reputation and earnings potential. The main drawbacks are that it takes time and can get expensive.
Earnings capitalization With this method, you take company's gross revenue, subtract costs, and multiply this figure by a certain agreed-upon number (capitalization rate). The advantage of this method is that it is quick and relatively easy to calculate the value. The main drawback is that the final number may not represent the true value of the company. For example, the company may not show much profit, and yet have great real value, if you reinvested nearly all profit back into the healthy, growing company. To account for this, you may decide to multiply company's gross revenue, rather than pure profit.
Book value Book value is company's assets minus liabilities. The advantage of this method is its simplicity but the main drawback is that it does not account for earnings potential, especially if the company is new. To account for this drawback, you may decide to use a multiple of book value, where you multiply the book value by a certain agreed-upon number.
Other issues An effective buy-sell agreement should address the following issues:
- Should the agreement be guaranteed by pledging corporate assets, personal guarantees, loans, etc.?
- How to allocate shareholder loans?
- Should there be a covenant not to compete?
- Should the spouses of the shareholders sign the buy-sell agreement? What if they will not?
Partnership Disputes Resolution
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