Normally shareholder agreements or buy sell agreements are written by the majority shareholder's very smart and experienced attorney and are totally favorable to the majority shareholder/Corporation. The minority interest shareholders are required to sign these agreements and often do not understand all the implications of what they are signing until it is too late. I will define too late as when they are trying to exit the business and get a liquidity event at a value that is reasonably close to the value of the company multiplied by their percentage ownership in the company.

There are several approaches that we see used in determining the Purchase Price for shares of selling shareholders. The most common is Net Book Value. What net book value means is that you take all the assets and subtract all the debts and you get the shareholder equity or net book value. To the untrained observer that would seem fair and logical. In reality, it is simply an accounting presentation and generally has no relationship to what the business is really worth. An example is a company that owns a prime piece of real estate for their factory and the neighborhood has become hot. That facility was acquired in 1968 for $2 million with half of the value in the building and half in the land. The building has been depreciated down to $400,000 and the land stays on the books at $1 million. A fair market value of the facility is now $8 million and yet its net book value is recorded at $1.4 million.

Another weakness in this approach (for the minority, not the majority shareholders) is that there is no value placed on the going concern or the good will. Let's say you are software company with 300 installed accounts, a cutting edge application and are growing at 30% per year. They might have 10 depreciated servers, some used office furniture and virtually no other hard assets. Their book value is $87,000. The true fair value for the company, according to a strategic buyer who may really want this company might be $25 million. The book value is not even in the same zip code as the true value of the business.

Sometimes the parties agree on an approach that is based on an appraisal from a qualified valuation firm. If you are a minority holder you are beaten before you have even started. Standard valuation practice allows for a lack of marketability discount of up to 40% and a lack of control discount of up an additional 40%. Say good bye to your ability to compel the corporation to give you fair value.

The best way is to establish a valuation formula that can be applied when the agreement is put in place and also at a date ten years into the future. My favorite is an EBITDA multiple. A safe bet would be a 4 X EBITDA to establish the value of the entire company and then each shareholder would be able to get their ownership % times the company value. The company should have the ability to pay this out over 5 years at prime so that the event does not disrupt the company's capital structure. One note of caution, most small companies do everything possible to push down earnings which would depress the value of the enterprise using EBITDA. An example is salaries for owners and key employees that are above market (a constructive dividend). We use the term normalized EBITDA or Adjusted EBITDA to add back things like excess salaries, owner perks, and other expenses that would not be allowed if the company were a division of a large public company.

I know what you are thinking. I already have one of these agreements in place, am a minority interest shareholder, I am leaving the company, and I want fair value for my stock. Unless you have the evidence, the stomach, and most importantly the deep pockets to pursue a shareholder oppression lawsuit, you are pretty much out of luck. We have developed some approaches that have been reasonably successful in improving the outcomes of these unfortunate stockholders, but that is the subject of a future article.

Dave Kauppi

David Kauppi is an M&A Advisor with Mid Market Capital, Inc. MMC is a private investment banking firm specializing in providing corporate finance and intermediary services to entrepreneurs and middle market corporate clients in a variety of industries. The firm counsels clients in the areas of mergers, acquisitions, divestitures, resolution of shareholder issues, private placements of debt and equity, valuations, corporate growth and turnarounds.

Dave began his Mergers & Acquisitions practice after a twenty-five year career with a Multi-Industry background that included banking, high tech, and services. While in the leasing industry he gained a reputation for ?finding a better way? through creative deal structure. During one fiscal year, Dave?s region successfully negotiated over $200 million in financing transactions. He was instrumental in negotiating three multi-million dollar strategic partnerships in the service industry and launched and managed a very successful division.

In his M&A practice, Dave has completed transactions that range from succession planning exits, to finding strategic buyers for healthy, rapidly growing companies seeking a partner to provide scale, to division divestitures, to troubled companies. Dave has also been a speaker on shareholder issues and has published several articles on Mid Market M&A. His career focus has been in sales and sales management and he has received numerous awards for sales excellence. He brings his strong negotiating and facilitating skills to his practice, successfully managing transactions to a win-win result.

Dave graduated from The Wharton School of Business, University of Pennsylvania with a BS in Economics with a concentration in Finance. He received an MBA with a concentration in marketing from DePaul University. Dave is a Certified Business Intermediary (CBI), a licensed business broker, and a member of IBBA (International Business Brokers Association) and the MBBI (Midwest Business Brokers and Intermediaries). Contact Dave Kauppi at (630) 325-0123, email davekauppi@midmarkcap.com