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Urgent Warning (and Solution) to Attorneys and Business Owners re Shareholder/Buy-Sell Agreement Problems

WARNING. Portions of the great majority of buy-sell agreements (or relevant portions of operating agreements) addressing the valuation of interests when trigger events occur are seriously flawed. As a result, they are destined to create time-consuming, expensive, and emotional disputes between buyers and sellers when they are triggered. Most attorneys and business owners do not seem to believe me, but recent experience only reinforces the need for this warning post.

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One Picture Wins the Day in the Complex AriZona Iced Tea Litigation

Keep it Simple and Hit the Bull's Eye

While I have always focused on trying to make presentations for judges as understandable as possible, I have been thinking about this topic a good bit during the past year. By the time the year is over, I will have spoken on this topic of simplifying complex financial information for judges and juries a number of times around the country. Sometimes, it is a single graphic that helps convey the reasonableness of a complex series of opinions. This post is about one such graphic.

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Kress v. U.S. Denies S Corporation Premium and Accepts Tax-Affecting

The issue of a premium for an S corporation at the enterprise level has been tried in a tax case, and the conclusion is none. This case marks a virtually complete valuation victory for the taxpayer. It also marks a threshold in the exhausting controversy over tax-affecting tax pass-through entities and applying artificial S corporation premiums when appraising S corporations (or other pass-through entities). This post provides an extensive review of the case.

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Seven Ideas to Convey Business Valuation Concepts to Judges and Others

How should an expert explain the basics of valuation to a judge or a jury or a business owner or an attorney who needs to understand something about value for court, for personal reasons, or for clients? This post provides seven ideas to discuss the essence of business valuation in terms that have proven successful for me.

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10,000 Steps (and a Bit of Pickleball) Once Again!

I last wrote about walking and my personal goal to walk a minimum of 10,000 steps each day. In that post, I reported that I had walked 10,000 or more steps every day in November and did the same thing in December, up to and including New Year’s Eve. After a major setback, I am happy to announce I crossed the 10,000 step daily goal for the first time since December 31st.

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Should Pre-Litigation Appraisals be Admitted in Current Litigations?

It is Likely Best to Assume That They Will be Admitted

Peter Mahler of New York Business Divorce Blog wrote a post today titled “Disclosure of Estate Tax Stock Appraisals in Shareholder Disputes.” The question addressed is if or whether, in the context of contested stock valuation procedures stemming from elections to purchase in statutory dissolution or dissenting shareholder cases, pre-litigation appraisals rendered for estate tax purposes (or other purposes) should be discoverable. That’s a good question. In this post, I’ll comment briefly as a business appraiser and businessman.

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11 Good Things About EBITDA

The last post addressed EBITDA’s “Naughty 11” Problems and What to Do About Them. Today we talk about EBITDA’s “11 goodies” that help counter the “naughty 11” problems and make it a useful tool for analysts, operators, and owners. In the end, there is no single magic measure of cash flow that reveals all about business value. EBITDA, however, is one measure of cash flow that deserves attention in terms of valuation-related analysis, but in the context of solid reviews of historical income statements, balance sheets, and cash flow statements with insights about history and outlook from management.

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EBITDA’s “Naughty 11” Problems and What to Do About Them

EBITDA is at the same time the most discussed and most maligned measure of business cash flow. Simply put, EBITDA is Earnings Before Interest, Taxes, Depreciation and Amortization. The problem with EBITDA is that too often analysts or market participants or writers want to think that there is a single measure of cash flow that will reveal all, bringing Utopia to valuation. This post notes 11 things that EBITDA is not or will not do—and compares other cash flow measures according to the same criteria. Utopia does not exist and there is no valuation elixir. Sadly, we actually have to analyze companies to value them or buy them or sell them.

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Promissory Note Valuation

The Second Time Around was Better Than the First

My last post described an early promissory note valuation that provided me with an object lesson in humility. This post is the follow-up to show that it is possible to learn from such lessons and to lay the groundwork for future growth. The ending of this two-part series is happier than its beginning!

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Promissory Note Valuation

A Lesson in What Not to Do

While working on the valuation of a series of promissory notes recently, I recalled a case involving my very first note valuation. It reminded me once again that if an appraiser (or any professional) desires an object lesson in humility, he or she just needs to look at a report (or other work product) prepared 30 (or 10, or even five) years ago.