Buy-sell agreements are often unclear regarding the interpretations of their buy-sell provisions. The subject matter of this post is a brand new Indiana Supreme Court ruling that found the valuation terms to be clear – and agreed to by all the parties. Appraised market value was considered to be the equivalent of fair market value. Since the valuation applied to the interest and not to the company, it was appropriate for the valuation expert to consider valuation discounts.
Was the selection of the first appraiser and obtaining his result a revocable offer on the part of the Company pursuant to the buy-sell portion of the operating agreement? Was it okay to withdraw the “offer” prior to the time that Plaintiffs had accepted it? This was the Company’s basic argument. Or was the selection of the first appraiser by the Company a binding acceptance of the implicit call option that the Plaintiffs had negotiated at the time the operating agreement was signed? This was the Plaintiffs’ argument. Read this post to see what Vice Chancellor McCormick of the Delaware Chancery Court concluded.
The role of the third appraiser is always to bring resolution to buy-sell agreement valuation processes. The question is how the third appraiser’s conclusion will be used to bring pricing resolution. In this post we see that one “typical” way of considering the third appraiser’s conclusion has in interesting and potentially dangerous twist for valuation processes.
Recently, I was involved, for a moment, in a buy-sell agreement valuation process that had many issues. A key executive in a company was terminated. He owned about 15% of a profitable operating company, and his firing triggered the company’s buy-sell agreement provisions in its operating agreement. This was a buy-sell agreement that was virtually destined to fail unless the parties agreed to a change in the process.
The Indiana Court of Appeals reversed a trial court decision, concluding that valuation discounts in an unclear buy-sell agreement were appropriate even in light of the mandatory nature of the buyout. In other words, the agreement created a market and the trial court ignored this fact. This is an interesting case and yet another example of why valuation processes in buy-sell agreements must be carefully drafted to avoid such debacles when trigger events inevitably happen.
I have long used the term of “words on the pages” of buy-sell agreements to relate to those usually too few words that describe the valuation processes called for by the agreements. A typical agreement will devote 150-200 words to attempt to describe a multiple appraiser valuation process. It is not possible to do so. There are too many things that have to be described or defined. In this video, I talk about the defining elements of any buy-sell agreement valuation process and the need for clarity in the “words on the pages” to assure reasonable processes when agreements are triggered. I also state that I have a new book in the process of finishing that will provide draft “words on the pages” that have a good chance of working. Attorneys, business appraisers, and other advisers to business owners will want this book!
Kashmiry v. Ellis is a recent Ohio appellate case regarding the buy-sell agreement portion of a shareholders’ agreement. The case reinforces a number of things I have been “preaching” about for years. If a buy-sell agreement has provided for an annual valuation by agreement of the parties, then the parties must reach agreement annually. If the agreement then provides for a valuation mechanism to determine the price following a trigger event, then the valuation process should be clearly defined and workable.
I have read too many buy-sell agreements to count. The typical valuation process in them (for appraisals following trigger events) range from 150 words to perhaps 300-400 words. That simply is not enough “wordage” to describe or define any valuation process, much less an appraisal. I started focusing on the seven defining elements over the years as I experienced problems with each and every one of them in troubled or litigated valuation processes where I was either an appraiser or a consultant. Do your clients’ buy-sell agreements adequately define the seven elements? Or does your company’s agreement do the same? If they are not clear in an agreement, future trouble is almost certainly lurking.