The following excerpt is from Mark J. Kohler and Randall A. Luebke’s book The Business Owner’s Guide to Financial Freedom.
Selling your business to a partner is probably the most common ownership transfer among small businesses. The reason is, your partners have a clear picture as to the value of the business, its potential, and what they need to do in order to replace you in the operations.
Selling to a partner is often one of the easier transfers to handle legally – not that partners don’t have their battles and disagreements – but most buying partners want to make the transition smooth and get the selling partner out quickly and painlessly. Many times, I feel that partners are amenable and anxious to define the transaction and process so that they themselves can utilise the same method with a good conscience in the future.
The document that typically lays the groundwork for a partnership sale like this is called the “Buy-Sell Agreement.” These types of agreements are drafted daily by law firms around the country and are actually implemented for more reasons than a partner wanting to sell.
In a more elaborate Buy-Sell Agreement for a more mature or established partnership, the document will cover issues of divorce, death, disability and a requested departure or exit. I call these the “Four Ds,” and each is important to address with predefined terms.
The primary purpose of the Buy-Sell Agreement is to define the procedure for the transfer of ownership, price, terms and transition well in advance of any event causing a transfer. This is a powerful tool because it prevents a partner from holding another partner hostage at a price or process in the heat of emotions when the transfer is needed.
For example, if all partners understand the process to determine the value well in advance, then they can work more clearly toward increasing the value of the business. Each party also knows that they’re all held to the same equation and process no matter what side they’re on. This way, it will be fair when the time comes for each partner to leave the partnership (at least, that’s the goal of the document and can certainly minimise the chance of a lawsuit). Following are some details you need to know about the Buy-Sell Agreement.
Determining the value
Most Buy-Sell Agreements require the partners to agree to the value of the company on an annual basis and record it in the annual partnership meeting. This may seem arbitrary, but if everybody agrees (typically requiring a unanimous vote) and everyone knows the value applies to everyone, then who cares what anyone from the outside thinks? If the partners can’t agree, then a third-party appraiser is brought in to do a formal valuation if a buyout is triggered during the upcoming year.
Oftentimes, the terms are based on a note, with interest, paid out over five to 10 years. This can obviously create the retirement income a partner is looking for, and over the period of payments, it will spread out the tax bill as well. Some Buy-Sell Agreements require the remaining partners to obtain a loan for a good portion of the purchase price and then finish off the rest with a Note. This allows the departing partner to invest the initial money received wisely to create additional cash flow and prepare for when the payments under the Note end.
First right of refusal
Typically, there’s a first right of refusal that must be given to the remaining partner(s) when a partner wants to leave or sell. This means that before a partner can run out into the open market and look for another buyer, they first have to offer their ownership interest to the other partners. This obviously can create some hurdles for the partner wanting to sell because they first have to find a third party willing to buy into a partnership where they may not be welcomed with open arms, probably be in a minority position, and then have to wait around for the other partners to exercise their first right of refusal. But, again, it’s a protection mechanism that “cuts both ways” and protects all the partners.
To protect both parties, there can be a provision requiring the departing partner to sign a noncompete, and also the remaining partner or partners to “pledge” the partnership interest they purchased as security or collateral for the Note they’re paying off. Thus, if the buying partner(s) defaults, the selling partner can come back into the company as an equity partner to try to recover the remaining sales price or value sold in the original agreement.
It’s OK for a partnership not to have a Buy-Sell Agreement in place, but it can increase the tension in the case of a partner selling when the remaining partners didn’t foresee the situation and don’t have the wherewithal to buy out their partner. In these situations, I tell the partners to turn immediately to their partnership agreement (typically an LLC Operating Agreement) to understand what the governing document allows for when it comes to a partner who wants to get out or sell.
If you’re in a partnership and you have the slightest thought that you might want to sell in the next 10 years, and your partner might just be the buyer, then implement a Buy-Sell Agreement immediately. Don’t mess around with the disaster that can be created in a partnership when it becomes volatile or a partner up and decides they want out.
This article was originally posted here on Entrepreneur.com.
Success Fuelled By Partnership
Property Point, the Department of Small Business Development (DSBD) along with the Small Enterprise Development Agency (SEDA) have joined forces to drive market access to a legion of high potential small black-owned businesses.
When SEDA invited Property Point to apply for funding through their incubation fund structure, the pilot project became a game-changing partnership. The aim of the project is to provide incubation funding of R6-7million annually over three years. The Enterprise Incubation Programme (EIP) under the Department of Small Business Development awarded Property Point funding of R5 million for a 12-month programme to incubate 15 businesses.
“The goal of the collaboration was to drive market access to a cohort of high potential small black businesses,” says Desigan Chetty, Head of Operations at Property. “Point Property Point’s demand led-approach to ESD suited DSBD’s objectives to ensure that businesses are able to access markets after going through a capacity building programme.
“Property Point’s objective is to establish a strategic relationship with government to assist in contributing to the sustainability of small businesses, reducing dependency and ensuring that businesses are enabled to competitively access market opportunities,” he explains.
Access to markets, job creation, and sustainable small business growth
The major objective was to access markets, ensure job creation and sustainable growth of small businesses. Each business was taken through a diagnostic assessment and a bespoke business development map was produced.
“One-on-one mentorship was a successful tool to align the objectives of the owners as well as the businesses,” adds Desigan. “In addition, the focus was on profiling the businesses, enabling them to access markets through a solid sales pipeline process, acquiring machinery to increase operational capacity and also accessing technical certifications which are often a barrier to opportunities.”
The power of partnership
The biggest success story would be that Property Point has managed to exceed all expectations of DSBD, according to Khutjo Langa, Property Point’s Monitoring and Evaluation Manager.
“The impact targets were achieved in the first quarter and we have been pushing the boundaries to increase the ROI of the funding. We have added one more business to the initial set target of 15 businesses because we saw a need and a perfect fit for that business to benefit from this partnership.”
Khutjo believes that there is certainly a need for collaborations of this nature, “especially now that we have seen the results that can be achieved if things are done correctly. South Africa needs both private and public to work together to solve the ills of our country. These kinds of collaborations allow easy flow of resources and accountability, thus ensuring that everyone does what is expected of them.”
Working with the DSBD
The small businesses that are part of the DSBD intake will form part of the Property Point alumni network and we will still maintain contact through our monthly Entrepreneurship To The Point networking engagements.
“The DSBD team was supportive and provided oversight to ensure that programme objectives were met,” says Desigan. “The Director General, Edith Vries, attended the launch of the programme and engaged with each of the 16 businesses on the programme individually.”
“We have learned a lot from this engagement,” says Khutjo. “We were stretched but proved that our ten years of existence and proven track record qualifies us to be able to take on such projects and succeed.”
Bradley Kodi, Programme Manager at Property Point agrees. “The experience has been amazing thus far, by no means easy, but a beneficial relationship of interchangeable learning between both organisations,” says Bradley. “I strongly believe this public-private partnership can be considered a success – our impact speaks for itself.”
Alan Knott-Craig Answers: How To Find Partners And Navigate The Partnership Territory
Most businesses are built on some form of partnership, from co-founders to investment deals. Here’s how to find partners and navigate partnership territory.
How do you find the right partners? — Johnny
The best way to find partners is to make it easy for them to find you. Speak at conferences, write a blog, write books, do media interviews, make it easy for people to notice you. With some luck someone will approach you and voila, you’ll have a potential partner. The real challenge is knowing whether they are the right partner.
The only way you will find the right partner is if you are totally honest about yourself. The only way you can be totally honest about yourself is to know yourself.
To know yourself, you need to take risks. Lots of risks. Fall in love, start businesses, travel, meet new people, do public speeches. Keep taking risks. Sometimes you’ll win, most times you’ll fail.
It’s in failure that you’ll find out how you respond to setbacks, what is important to you, what type of people you gel with. One of the biggest risks you’ll take is choosing a business partner. If you make a mistake, it’s painful, but you then know more about yourself and will find it easier to find the right partner next time. Take risks.
How do I discipline a senior executive in my business? We’ve been partners for over two years, he’s helped me enormously, but he recently crossed a line with one of our staff members and I’m not sure how to handle the situation. — Busi
Start with having a disciplinary code and disciplinary process that describes the steps to be taken in the event of an employee contravening the code.
You then need to call in your partner, have a witness present, and get his side of the story. If the issue can be explained away, problem solved.
If not, you have to follow your disciplinary process to the T. If anything, you must be overly strict. You must over-react.
You have to show the rest of your staff that no one is above the law. If you don’t, don’t be surprised if your staff become demoralised and disrespect you and your disciplinary code.
I’m a CEO of a small business. We’ve recently had some HR issues. What’s the right response to gender or racial discrimination in the office? — Vusiswa
No company in South Africa can tolerate gender or racial discrimination. Immediately start a disciplinary process, act firmly and publicly. Make an example of the situation. Draw a line far away from anything that could be construed as offensive, and make sure your entire team knows where that line is.
The first offenders should be used as public examples. Tough luck for them, but the best way to save others from doing the wrong thing is to over-punish the first offender.
I’m losing the confidence of my investors. What do I do? — Belinda
There are a couple of reasons for losing investor confidence:
- They think you’re incompetent. Only you know whether that is true. If true, there is no escaping this truth. Your only option is to find someone else to run your business. That action will rebuild investor confidence.
- They think you’re a liar. If you’re a liar, you will eventually be caught out. Investors will forgive incompetence, but they’ll never forgive fraud.
- You are not delivering on the promises you made. This doesn’t necessarily mean you are incompetent. It means you over-promised. The solution is simple: Stop over-promising. If you think you’ll do 20% sales growth, promise 10%. Get into the habit of giving yourself a margin of error. If you keep your promises, your investors will back you.
Read ‘Be A Hero’ today
Public Private Partnerships Can Work For Entrepreneurs
Property Point will develop 16 small business in the property sector of which two thirds are youth and women owned.
In a landmark partnership for collective economic growth in South Africa, the Department of Small Business Development (DSBD) joined forces with Property Point, a Growthpoint Properties initiative, to develop more small businesses for South Africa’s property sector. DSBD has allocated a R5 million grant to Property Point for a one-year small business development programme as part of its Enterprise Incubation Programme (EIP). This breakthrough initiative is the first public-private partnership of its kind in the property sector. It will develop 16 small businesses in the property sector of which two thirds are youth and woman-owned.
For this unique 16-business intake, Property Point’s programme is powerfully market driven. It will raise the profile of the entrepreneurs and strengthen their competitiveness, with a deep focus on market integration. The programme aims to create market linkages for these small businesses that will see them included in procurement opportunities in the broader property sector, as well as Growthpoint. It is expected to set new benchmarks for small business integration into private sector supply chains.
Estienne de Klerk, CEO of Growthpoint South Africa, says: “We believe in the principles of social and economic transformation and empowerment on all levels, and we are committed to achieving this. As a hands-on property owner, we own and manage our buildings – we recognise our unique position to develop small businesses to increase their access to market opportunities. We are proud to contribute to this pioneering public-private partnership designed to deliver on South Africa’s transformation, small business, economic growth and job creation objectives.”
Shawn Theunissen, head of Property Point and head of Corporate Social Responsibility for Growthpoint Properties, says:
“Property Point’s objective has always been to contribute to South Africa’s economic growth. Using a best practice model, we have delivered positive results in our new partnership with government. This will escalate our impact on transforming the economy at a crucial time when South Africa is dealing with high unemployment and low economic growth.”
The beneficiaries of the Property Point and DSBD partnership have advice on how other entrepreneurs can make the most out of similar programmes:
Advice from Zoleka Ngema of Senzee Trading
- Be honest this helps you define your position and helps you view the real issues in your business.
- Do every task diligently every business is different and what works for one might not work for you, so working diligently personifies the tasks and therefore adds value to your business.
- Lessons are continuous remember & do the tasks done as these will create a cycle of growth even after the course is over.
Advice from Sibongile Shikwambana of Sandwind Coatings
- Be fully present, participate and take advantage of every single opportunity
- Drive your own business agenda; recognise that you and no one else can make your business successful
- Build and maintain meaningful relationships.
Advice from Teko Motlhabi of Techmo Air
- Try to be present and involved with all the activities and opportunities handed to you
- Ask for help from the Programme Managers and the rest of the team when you need it
- Create relationships with your fellow entrepreneurs and collaborate.
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