A number of months ago, I received a call from Carole Gailor, Co-Chair of the AICPA/AAML 2016 National Conference on Divorce. She asked if I would put together a session on buy-sell agreements in the context of divorce. I was glad to accept the offer. When she told me the conference would be in New Orleans, I was excited. I hadn’t been there for quite some time.
In fact, Carole’s call reminded me of my first trip to NOLA in late August 1968, which dates me after a fashion. I had recently graduated from Stetson University, been commissioned as a 2nd Lieutenant in the U.S. Army, and been married. We went to NOLA for our honeymoon just in time for television spectacle of the 1968 Democratic Convention in Chicago. I have to recall that as a newly minted Army officer, the protests and violence were disturbing. But we had a wonderful honeymoon, anyhow.
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Buy-Sell Agreements and Divorce
Last week, I attended the joint AICPA/AAML and spoke on Friday. I did speak on the topic of buy-sell agreements and related the subject matter to divorce as much as I could. Divorce is a frequent trigger event in buy-sell agreements. Divorce provisions are normally in place to protect a company and its remaining owners from being forced into business with a non-owner spouse as result of equitable distribution of marital assets in an owner’s divorce.
The buy-sell agreement session seemed to have been interesting to the audience based on feedback during the remainder of the day.
I told one story about reviewing a buy-sell agreement for an attorney a number of years ago. The agreement had a divorce “trigger” event. It said that in the event that an owner (there were four 25% owners) was divorced, the Company had the right to purchase his shares and, effectively, terminate that owner. I explained to the attorney that the reason for such clauses was not to control stock merely in the event of divorce, but in the event that a court would otherwise allocate it in equitable distribution to a non-owner spouse. I don’t know if the owners changed that agreement. If not, I hope that none of them has been divorced in the last few years!
My overheads from the buy-sell agreement and divorce session are available here.
Battle of New Orleans 2016
I also participated in a panel labeled the Battle of New Orleans 2016. David Levy fed questions to the panel which included Jay Fishman, Ron Seigneur, Nancy Fannon, Jim Hitchner and me. These panels are fun for the panelists, and the general session audience. We covered a number of controversial topics without too much controversy. Rather than disagreeing with each other, we tended to provide different perspectives on the topics, which included:
- What are the most supportable valuation methodologies? There was considerable discussion from the panel and in a couple of other sessions about the use of guideline transactions and the discounted cash flow method.
- BV standards and credentials. Do attorneys and courts really care? There were a variety of opinions. David Levy polled the audience and there were differing viewpoints among the lawyers. From my perspective, attorneys and courts are quite concerned about credentials and experience, and somewhat less concerned about standards absent substantive errors.
- Cost of capital and growth rates. My opinion, which I think was shared by the other panelists, at least generally, is that appraisers often get too caught up in efforts to be precise about the individual components of a build-up discount rate, and may not pay sufficient attention to whether their resulting discount rates make sense in the context of the market for similar assets.
- Working with attorneys, including depositions and trial testimony. The panelists strongly prefer working with attorneys who take ample time to work with their experts in preparation for both deposition and trial.
- What is the difference between price, value and proceeds? I answered this one first. Price and value are synonymous. They reflect, e.g., fair market value. Proceeds, on the other hand, reflect the net amount available from the price or value after considering all expenses. The panel seemed to agree that the allocation of transaction expense was for the courts to handle in divorce valuations.
It was great to spend time getting ready for and participating on the panel with Jay, Ron, Nancy, and Jim, and meeting David Levy in the process.
An Offer You Can’t (I Hope) Refuse for Buy-Sell Agreement Materials
I extended a limited time offer to the audience in NOLA which I’ll duplicate for readers of ChrisMercer.net. If you go to the upper right hand corner of any blog post, you will see a panel asking readers to sign up for the blog. Anyone doing so receives an immediate download of our Buy-Sell Agreement Review Checklist. This checklist is my most downloaded resource, and you will definitely want it if you deal with buy-sell agreements at all.
Anyone signing up for ChrisMercer.net for the next two weeks (ending on June 6, 2016) will also receive a complimentary PDF copy of Buy-Sell Agreements for Closely Held and Family Business Owners, which regularly sells for $15.00. This book, also available in a print edition for $25.00, provides a wealth of information that is useful to attorneys, business owners, financial planners and business appraisers about buy-sell agreements from business and valuation perspectives.
To be fair with existing subscribers, If you are already a subscriber to ChrisMercer.net, I’ll send the PDF E-book, Buy-Sell Agreements for Closely Held and Family Business Owners to you if you email me and put “E-Book Offer” in the subject. I’d be glad to hear from you otherwise!
My two most recent books are available in an Ownership Transition Bundle. The bundle, priced at $35 plus s/h, has been attractive for many business owners, appraisers and attorneys.