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LEGAL ASPECTS OF THE SUCCESSFUL SUCCESSION PLAN

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Ironstone welcomes guest contributor, Scott D. Calhoun. Scott serves as Ironstone’s Legal Counsel and holds more than 25 years’ experience in corporate law. Scott advises clients on a full range of business matters. 
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Once you have decided to begin long-term planning for a successful succession of your business, you will need to make sure your plan is properly documented so that it will accomplish your goals.  This article concludes our series on succession planning.  Part I briefly outlined succession strategies and introduced you to the process.  Part II provided a more in-depth review of a number of key factors.  In Part III, we provide some insight into the details of properly implementing the successful succession plan from the legal perspective.
USE YOUR TEAM TO FORMULATE THE RIGHT PLAN FOR YOU,
THEN ORGANIZE ALL YOUR PAPERWORK

As we discussed in our earlier articles, formulating a proper succession plan starts with putting together a good team of advisors.  At a minimum your team should include your attorney and CPA, and you might consider adding an outside financial consultant to the team.   Think of your team as a coaching staff putting together a game plan.  Once all the coaches have met and hashed out various ideas, a master plan is put together.  As game day approaches, steps are taken so that the detailed game plan can be implemented.  Among those steps is putting your legal affairs in order, including:

  • Update (or make plans to update) your will or other testamentary documents
  • Make sure your corporate minute book is up to date and complete – including stockholder records and minutes
  • Confirm that all your corporate registrations and business licenses are current
  • Put in place all agreements with current employees that are necessary to preserve the value of your business – non-disclosure/non-solicitation agreements, existing shareholder buy-sell agreements, stock option or other equity participation plans

NEXT COMES IMPLEMENTATION DEPENDING ON THE NATURE OF THE SUCCESSION

If your plan calls for an INTERNAL succession (an existing partner or employee, or a targeted successor candidate, or a family member), several different arrangements could be used:

  • Transfer through existing buy-sell agreement
  • Establishment of stock option or other equity participation and transfer arrangement
  • Transfer through gifting program or limited partnership (especially useful with family members)

Each of these structures produces its own legal challenges and requires that specific issues be addressed. With respect to buy-sell agreements, you will need to focus on:

  • Triggers – buy-sell agreements can provide for the purchase and sale of stock in many circumstances other than death, including disability, separation or retirement, divorce, or even upon achieving certain performance goals
  • Valuation – how the company is valued at the time of the buy-sell is critical, and the methods of determining value are quite varied.  We strongly encourage you to decide on an appropriate valuation methodology at the time of putting the buy-sell agreement in place
  • Funding – perhaps the most important issue, how the buy-sell is funded can be the difference between a successful succession or the collapse of the business

If you are implementing a stock option or equity participation (or phantom stock) plan:

  • Appropriate grant percentages and formulas – the goal of these plans is to provide incentive for performance and also “skin in the game.”  Careful thought is required to ensure that these incentives are appropriate but not excessive
  • Triggers for payout – when will the stock be awarded or the compensation paid?  On sale of the business?  Other restructuring?  These are questions that need to be answered
  • Amendment and correction – these plans need to have flexibility, so the original document should allow for amendment within reasonable parameters

For limited partnership arrangements (can also use LLC) to transition to family members:

  • Control – this is a critical issue for first generation business owners.  The key point is to determine how to use this method of succession and maintain control until you are ready for the transition to be finalized.  This requires some care in planning and drafting
  • Gifting program and valuation – using valuation discounts and gifting of interests allows the first generation owner to leverage the gifts and maintain control
  • Commitment of family member – this goes back to the issues discussed in our earlier articles emphasizing the importance of selecting the proper persons to take over the business.  Make sure your chosen successor is in it for the long haul

If your plan calls for an EXTERNAL succession (sale to strategic partner, wealth management firm, or purely outside investor):

  • Due diligence – during the negotiation process, you will be asked to open your records for the buyer to conduct its due diligence.  As a seller, you should do the same to ensure that your buyer is who has been represented to you and that the buyer will be able to successfully complete the acquisition
  • Valuation and payment terms – these will be key issues in the negotiation process.  An important point to remember is that your notion of what your business is worth will almost never be the same as a buyer’s notion of what the business is worth.  Talk to your advisors about expectations
  • Security for payments – you will want to make sure you will actually get paid the amount agreed to for purchase of the business.  Proper security for those payments is vital

DEFINING YOUR FUTURE ROLE AND RESPONSIBILITIES

Part of the succession transaction needs to be a clear understanding of what your future role with the business will be.  In this regard, you will need to mindful of several issues:

  • Consulting or employment arrangements – if the deal calls for you to stay on in some sort of consulting or ongoing management role, your exact responsibilities need to be clarified and your compensation specified.  DO NOT allow yourself to believe that just because negotiations went smoothly and professionally, you will be able to “take it as it comes.”  Document everything.  If there is strong trust, all will go smoothly anyway
  • Non-compete agreements – you may be asked to sign a non-compete agreement.  This may not be a big deal if you are definitely retiring, but if you need some flexibility, you need to pay careful attention to these terms
  • “Earn-outs” – these are a popular means to keep initial purchase prices low.  If your deal includes earn-outs, make sure you are satisfied with the upfront and guaranteed money you will receive.  You should NOT count on getting any more
  • Taking the business back – this issue relates to making sure the purchase price payments are properly secured.  If the buyer cannot make the payments, you will want to have the ability to take the business back.  But be aware – it may not be worth much if these circumstances occur

NO ROOM FOR HANDSHAKE DEALS

In our previous articles, we have pointed out the need to prepare yourself for the transfer, take care in choosing your successor(s), and communicating with your clients and your employees.  These are all important factors in a successful succession plan.  So is communicating clearly with your team of advisors, especially your legal and accounting advisors.  The successful succession of your business and assuring that you receive proper value for your business depend on numerous factors, and the transaction will require careful paperwork.  There is no room for a handshake deal, or for whispered “back-room” arrangements with the potential successor.  These transactions do not have to be overly complex, but you need to make sure your advisors know everything that is important to you and then you need to trust your advisors to implement your plan successfully.

Using this approach, IRONSTONE can help you PASS THE TORCH effectively!

What areas of your succession plan need to be addressed? Let us know how prepared you                                                                            are for transfer by leaving us a comment or ask questions here!

Download The Entire Succession Planning Series

Download Ironstone’s Research White Paper

• Email us at info@ironstonehq.com
• Call our office at 800-917-8020
• Connect with us:

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A Must Read! Integrating Leadership Development With Succession Planning

Download Ironstone’s research paper here!

Create An Immortal Succession Plan By Integrating Leadership Development With Succession Planning

• Email us at info@ironstonehq.com
• Call our office at 800-917-8020
• Connect with us:


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Passing The Torch – Succession Planning, Part I

Your succession plan is not just a blueprint for retirement, selling your business or a catastrophic continuity plan focused on legal issues and the best price.  This is a plan for long-term sustainability of the firm; a vital strategic process that nurtures and develops rising leaders in order to increase transferability and continue the legacy of the practice.

In our two-part series of succession planning, we will look at:

  • Motivating you to start creating your plan and empowering you to do so with little to no overwhelm in part one
  • An in-depth review of the key factors to succession to guide you through the process of successful implementation

The Succession Strategy

Purposeful planning is essential to the entire succession process and helps build strategies that benefit both the individual and the overall business.  Make sure you involve the right people, invest in the right tools and make the right decisions in order to achieve results.  The following provides an outline of the steps to incorporate in your succession strategy:

  • Evaluate the practice and define practice goals
  • Prepare yourself for transfer
  • Prepare the practice for transfer
  • Choose your successor(s)
  • Focus on development, refinement and planning
  • Prepare your clients for transfer

Common Misconceptions of Succession Planning

What It Is

                              What It Isn’t
 Develop talent to move forward  Identify immediate understudies
 Identify long-term goals  Unchanging firm structure
 Improve readiness/build a team to fit practice  “Back-up” candidates
 Develop large talent pool to fill vacancies  Catastrophic buy/sell agreement

  Overcome Risks and Reap The Benefits

You Don’t Have One

You Have One

 Fear of lost identity/control  Sustainability of the practice
 Fear of mortality/aging  Ongoing supply of well-trained talent
 Potential jeopardy to your family’s financial security  Available resources to aid future needs
 Fear of not finding an acceptable successor  Well-motivated team to continue your legacy
 No financial security for employees and clients  Improve all processes
 Grief over separation from the business  Improve service offerings

 Part II of succession planning will elaborate specifically on each step outlined above.  The actionable developmental steps provided will cover the process from start to finish.

The Tranquil Transition

Successful execution of your plan requires resilient structures, effective processes and dedicated talent in place to carry out the strategies defined above.  Implementation will guarantee the long-term sustainability of your practice that you have worked so hard to ensure.  Keep the following points in mind throughout the transition:

  • Blur the line between incoming and outgoing team members
  • Focus on improving communication
  • Clearly define behavioral steps
  • Utilize evaluation processes for real development of the succession plan

Always Be On The Lookout

Be adaptable to inevitable changes occurring in the practice; evolution not revolution.  There are both challenges and unforeseen changes that have the ability to restrict a good succession plan.

  • Challenges

Compensation for purchasing ownership, share valuation, percentage of equity to transfer, how to share decision making in management, financing new owner’s share purchase and cultural fit.

  • Unforseen Changes

Team roles, clients and most importantly, updating your succession plan during the building and execution stages.

The financial elements of a succession plan are significant, but not all encompassing.  The non-financial aspects influence the success or failure of the plan; they are most harmful if neglected.

The value of extraordinary human capital and robust processes allows evolution to occur evenly and without damage.

Don’t join the 50% of advisors that have not written a succession plan*

Make sure your business is one that others will want.  Develop the next generation of advisors that best fit the practice in order to increase transferability and continue your legacy.  The more indispensable you are, the higher the value your business will be when you leave.

The steps you take to define your succession plan, more specifically processes, clear roles and career paths, are as good for business today as it is tomorrow or10 years from now.  If you didn’t start early, start now!

A successful succession plan embodies a talent development mindset and establishes a performance culture throughout your firm.  If you can visualize the impact of a stellar succession plan, you need Ironstone to help you implement it!    *2012 In Advisor Solutions Succession Plan Study

Ironstone will evaluate your existing succession plan and strategize with you to gain optimal benefits.  If you haven’t implemented a succession plan, we will collaborate with you to develop a comprehensive plan.  We specialize in identifying gaps in your existing plan and will collaborate with you to develop solutions that are parallel in achieving the results your desire.

We are curious!!  Have you developed your succession plan?   Let us know!

Follow us as we explore each of Ironstone’s Fundamental 4™!

  • Strategic Planning
  • Business Development
  • Operational Effectiveness
  • The Human Element

Coming up next, learn about Business Development and Client Appreciation!

• Email us at info@ironstonehq.com
• Call our office at 800-917-8020
• Connect with us:


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Success Systems For Your Firm

We are in our second cycle of blogging about Ironstone’s Fundamental 4™, and sincerely hope that you are gaining additional guidance and support for implementing best practices in your firm.

Ironstone focuses on 4 key fundamentals that we refer to as the Fundamental 4.

  • Strategic Planning
  • Business Development
  • Operational Effectiveness
  • The Human Element

Each of the 4 key fundamentals have 8 sub-categories that you will use to begin creating your systems.  Visit our website to see each sub-category to start your system processes.  www.IronstoneHQ.com

In series one, “How To Increase Your Effectiveness,” https://aeschlapia.wordpress.com/2012/02/14/how-to-increase-your-effectiveness/   we reviewed how you can increase your effectiveness by using reports and tracking systems in your firm.  When you define your standard operating procedures and create multiple tracking and reporting systems the operational effectiveness of your firm is improved.

Clients and prospects come into direct contact with each of your systems.  To provide extraordinary service you must pave the path by implementing and updating each system.

How To Start

Start by developing the external and internal processes for each sub-category of the 4 key fundamentals.  Formally communicate these processes with clients and team members in order to achieve the mission and vision you have established for your firm.

 “Inch-By-Inch It’s A Cinch!”

For each process/system that you create, follow these steps:

Step 1:  Introduction

Your introduction should include the following components:

  • Title – name the process
  • Purpose – describe the intention/objective of the process
  • Scope – identify when and to whom the process applies
  • Roles – list the roles and functions of those involved in the process
  • References – include any reference documents that help form parts of this process.

Step 2:  Steps/Procedures

Begin writing a list of each step needed to perform the process.  Each set of procedures must be followed to accomplish a given task.

Step 3:  Mapping

Describe the event and the amount of time that is required for the process.  Describe the inputs, activities, sequences, and decision points within the process.  Use flowcharting to provide a visual aide to the process.  Within this step Ironstone has found that a checklist of each output will help to validate that the action is completed.

In the Mapping Step you should also include exit criteria.   Describe an output’s state (or condition) required before the process or procedure can be considered “complete”.

Step 4:  Metrics

For most processes that you create, you will want to ensure that the process is measured to determine its contribution to your firm.  Determine what key metrics you will monitor and compile data that will demonstrate the ROI from the process. Be sure to review any areas that should be improved.

Step 5:  Document Control

Create a chart that contains the history of any revisions made to your document.  In the chart, include the date, the revisions that were made with a brief description, and the person who made the revision.

Your systems and processes will provide consistency throughout your practice, and Ironstone can provide you with templates and checklists to help you get started as well as review your current processes to identify the gaps that are most commonly overlooked.  Contact us for assistance in creating proven and effective systems for your firm.
 
 
Follow us as we explore each of Ironstone’s Fundamental 4™! 

  • Strategic Planning
  • Business Development
  • Operational Effectiveness
  • The Human Element

You won’t want to miss our next in the series:  The Human Element-Leadership


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Begin With The End In Mind

Your succession plan should start when you make plans to open your firm.  If you want to create a purposeful life and path for your career, as you start your business think about what your exit game plan will be.  Regardless of being in the midst of success, if you do not have a succession plan, make it a priority this year. 

How should you start the process?  Think of yourself as replaceable and begin to delegate tasks to others.  Other key questions to answer in developing your succession plan:

  • At what time would you like to transition out?
  • Who will you sell to?
  • When will you make the transition?
  • How will all of these work together?
  • Are annual recurring revenues growing over time consistently or are they up and down and somewhat volatile?
 

Predictability is the preference in appealing a buyer to your firm.  Higher net cash flow and higher recurring revenue will give your firm a higher valuation. 

How long should an exit take?  Each firm is different, however, it can take months to years for the entire succession process.  When pursuing a sale the following steps can take 1 to 2 months per step and are critical in successful succession planning:

  • Preparation
  • Marketing
  • Negotiating
  • Due Diligence
  • Final Transaction
 

 Other considerations to include in your succession plan:

  • Prepare your team & your clients. Make sure your clients will receive the same level or better quality of service that they are currently receiving.
  • Train your clients so they are used to you being out of the office.
  • That the buyer can have a profitable practice.
  • That you will be compensated fairly for your practice.
  • Look for businesses that are compatible with your firm.
  • Is the business a fee-based or commission-based firm?
  • Is the firm financial-planning based or investment-management service based?
  • What is the firm’s client service philosophy?
 

As the owner of your firm, you are sure to be experiencing feelings of loss of control, loss of significance and grief.  Be aware that your team is experiencing an elevated pressure of anxiety if you leave them in the dark.  It is vital to communicate the tactics of your succession plan to your team.   

Purposeful planning is key to the entire succession planning process.  “One of the best things you can do is to work ON the business not just IN the business.”

 We want to hear from you!  Is your succession plan in place?

Contact us for assistance in following the proper steps needed for a successful succession plan.

 

Follow us as we explore each of Ironstone’s Fundamental 4™! 

  • Strategic Planning
  • Business Development
  • Operational Effectiveness
  • The Human Element

You won’t want to miss our next in the series:  Business Development- Branding & Value Proposition-Does Your Firm Have A Value Proposition?  Learn How To Create A Unique Value Proposition For Your Firm.