One major sticking point in the business divorce is what to do with a departing owner’s interest in the company. That departing owner has invested money, sweat, and maybe committed a large share of his or her life to the company to build its value. Unless the corporate governing documents allow for the payment of that value upon departure, and provide a formula for calculating the value of such buyout, Arizona statutes provide no independent procedure to solve the problem. As a result, the parties create leverage, attempt to negotiate, and if necessary, file litigation utilizing certain statutes if applicable all in an effort to force the buyout.
Assuming no corporate governance documents exist, the departing owner certainly will start negotiating for a buyout in exchange for returning their interest to the company or the other owners. But how do you set the value? The company accountant can be called upon to state the book value as then existing in the corporate records. But that is a low end value. Perhaps there have been third parties who have offered to buy the company. Most privately held shares are restricted preventing sale. Professionals may be employed to value the stock or appraise assets.
Valuation presents its own issues unique to the closely held business. Valuation experts utilize discounts from fair market value because of the lack of marketability generally of ownership interests in private companies and for a minority owner interest which may total up to 70% of the enterprise value. However, a concept has been created known as “fair value” which eliminates the concept of a willing buyer and seller in a fair market without compulsion. The rationale is that the other owners of the business who own the other restricted ownership interests are really the only persons interested in controlling those shares giving them full value and as a result, the discount should not apply. Thus, the more accepted practice is for the entire enterprise to be valued, no discount should be taken, and a pro rata value attached to the shares. In fact case law in Arizona has held under the dissenter’s rights statutes that no discount should be taken in a fair value valuation.
Several Arizona statutes permit a buyout that may assist the departing shareholder. First, under the dissenter’s rights statutes, a shareholder who objects to a merger, plan of share exchange, or a sale or exchange of all or substantially all of the assets of the company may dissent and be paid their fair value for their shares. Under the judicial dissolution statutes discussed in the last column, the corporation may elect or if they fail to elect one or more shareholders may elect to buyout the shares owned by the departing owner. In both circumstances, procedures to conclude the fair value process including court proceedings if necessary, are set forth in Arizona statutes.
There have been cases in other jurisdictions which have held that the court has the equitable power to order a buyout. This equitable remedy is fashioned out of necessity, probably because insufficient statutory procedures exist in corporate settings.
The ability to have a court assist or force a buyout, under particular circumstances, helps solve the complexities of a negotiated buyout that the departing owner views as essential. But I propose the Arizona Legislature adopt a new approach to help resolve business divorce issues.
Read Part 2: here.