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Breaking Up The Business

Be prepared for what can go wrong with a business. You start a business with other people. You do not want to think about the business ending but most people do not want to think about their marriage coming to an end, either.

The New York Times published Making the Breakup Much Easier and I think it gives a non-lawyer perspective on business relationships falling apart. For a more lawyerly post on the same subject follow this link.

"When he tried to cash out, they argued that the business had hit hard times and wasn?t worth anything. (Both restaurants have since closed.) Mr. Ayoub, 51, who now owns Fornino, an upscale pizzeria in the Williamsburg section of Brooklyn, said he walked away from the feud with just enough to pay his lawyer."

Such tangles and many others can be avoided with a buy-sell agreement ? basically a business prenup or a postnup, depending on when owners draw it up. In a buy-sell, partners (the process is the same for corporations and limited liability companies) decide what will happen to their interest in the company if events like death, divorce and personal bankruptcy occur.

A buy-sell can prevent an assortment of evils, like becoming unwilling partners with an owner?s heirs, or leaving a surviving spouse illiquid because the remaining owners refuse to buy the survivor?s inherited shares. By requiring a sale under certain circumstances, known as trigger events, and specifying the terms beforehand, the buy-sell avoids conflict and protects everyone, said Louis A. Mezzullo, author of ?An Estate Planner?s Guide to Buy-Sell Agreements for the Closely Held Business.?

The best time to arrange the details, which can require 20 pages or more, is before you begin a venture, said Robert E. Gregg, a lawyer with Squire, Sanders & Dempsey in Tysons Corner, Va. Still, Mr. Gregg, who has worked with many start-ups, said there was generally no harm in waiting six months or so until you?re sure the business is workable. Either way, there are issues to sort out.

The article goes on a bit about the different options for the content of a buy-sell agreement:

What are the payment terms and financing? A lump-sum payout is often associated with life insurance that is used to finance a buyout when an owner dies, Mr. Redd said. You?ll need fewer policies if the company buys a policy for every owner, rather than if they insure one another individually, he said. The alternative is an installment sale, with payments plus interest over a defined period. These arrangements are common in buyouts where the owners don?t anticipate a ready source of cash, which could happen if one owner gets divorced or wants to quit the business, Professor Donaldson said. The legal bill to prepare a buy-sell agreement can cost $2,500 to $15,000, depending on complexity. If your budget is tight, you can rely on the free buy-sell agreement that many life insurance companies offer policy buyers, but it will probably cover only an owner?s death, not other trigger events.

I wonder if the fees quoted are not New York fees instead of Indiana fees, but I agree on what increases the costs. The more complexity wanted and needed by a client means more work and higher fees. However, I (again) say that the buy-sell agreement must be part of the documents creating the business entity - the Limited Liability Company's operating agreement, the corporation's corporate by-laws and so on.

Full post as published by Indiana Civil & Business Lawyer on February 26, 2008 (boomark / email).