Does your company have life insurance on its key
players? If so, don't
dismiss the rest of this article – there are some minefields you may not have
thought of. If not, call an
insurance agent today and then use some of these ideas in your
conversation.
In working with closely-held companies, including Chief Executive Boards International
members, I find that even those who have "key man" insurance in place
many times have not thought through the implications of just who owns the
insurance and just who the beneficiary should be.
Many articles and many insurance agents assume the answers to both
questions are "the company".
Not necessarily.
There are actually two major
reasons to insure a key player. One is
the traditional "key man" concept, where the insurance is meant to
provide enough cash to hire, train and compensate a replacement. In the case of closely-held companies, this
may be an owner or it may also be a senior manager essential to the business,
whether he owns shares or not. In that
case, the company as the beneficiary makes sense.
The second and probably bigger reason for life insurance is
to fund the provisions of a buy-sell agreement, providing the cash necessary to
buy the shares left in a deceased co-owner's estate. Call it "Partner Insurance",
because the objective is completely different - it's to fund your estate and
transfer ownership to your other shareholders.
This case is tricky and full of potential mine fields if not thought
through initially and the beneficiaries updated regularly. I've rarely seen one of these properly
configured. Why?
Closely examine your company's buy-sell agreement. You may find, as in many, that there's a
provision whereby the company has right of first refusal to buy back a deceased
partner's shares at a then-current valuation.
There are hundreds of variations on that theme, but generally those
shares are bought back into the treasury, thereby "reverse diluting"
the remaining shareholders. The math
becomes tricky.
Let's say, for example, you're just starting to transition
the ownership of your company and you have a 15% partner (someone who's been
with you for years - your intended successor/owner) and two 5% partners (key
players, with shares mostly for retention purposes), with your holdings at
75%. At 100 shares outstanding, share
ownership would be 15+5+5+75=100. If the
company is the beneficiary and there's enough money to completely buy back (retire) your
shares, then the remaining partners' outstanding shares become 100% of the
ownership of the company. Proportionally
divided, then, their shares (15, 5 and 5) end up being 60%, 20% and 20% of
ownership. You may be fine with that as
far as the lead person is concerned, but what's happened is that the two minor
shareholders have each suddenly "inherited" 15% of your company. Was that your plan or your intent? Probably not. What's also happened is, in the case of a typical 67%
super-majority requirement on major decisions (such as sale of the company),
you've unwittingly handcuffed the majority owner, where either of the other two
can block anything he wants to do. Was
that the plan? You can see the
problem. By the way, the estate gets a
step up in basis, meaning that the shares bought back from the company produce
zero taxable income for the heirs - either ordinary or capital gains. Good deal. Unfortunately, the partners don't get the
same deal. Their basis is still their
original investment - whatever they paid for their shares when they bought
them.
What's the alternative?
Depends on your intent. For this
case, let's assume what you really wanted was for your majority and long-time partner
to inherit control of the company, keeping the minority shareholders at 5%
each. How would you do that? Simple.
Make the majority shareholder the beneficiary of your "partner
insurance" policy. In other words,
your partner receives (tax-free, it's life insurance) enough cash to buy your
shares directly from your estate (which the buy-sell should allow). This could be a win all around. Your partner gets the insurance money, tax-free. Your estate gets a step up in basis on your
shares, and then sells them to your partner at that price for no taxable gain. And
your partner, since he paid real money for your shares also gets that amount
added to the basis of his shares. A win
all around. Despite the advantages of
this approach, I've never seen a buy-sell initially set up this way.
Variations on this theme could include a small piece of the
insurance proceeds for the minor partners, and if the death benefit exceeds the
current valuation of the company, you could name your spouse or heirs for the
rest. Granted, this takes some
management, updating the beneficiary percentages whenever you update the
company valuation. Among multiple
partners, then, these policies need to name the surviving partners as
beneficiaries to achieve the intended result in case of death of anyone (also
known as a cross-purchase agreement).
If you dismiss the "partner as beneficiary" option
and the company remains the beneficiary, question two is, "What is the
valuation of the shares the company is buying back from your estate?" This is another minefield, particularly if
the company is the beneficiary and the valuation process doesn't take insurance
proceeds into account. Let's say your
company is worth $4 million and we have a $3 million insurance policy on
yourself (to cover your heirs' 75% ownership), with the company as the
beneficiary. That's this week. This weekend you get hit by a beer truck and
expire. Next week the insurance policy
pays off and there's an additional $3 million of cash on the balance
sheet. What's the company worth
then? A capable attorney for your estate
would argue it's worth $7 million. Wow,
then we're talking about buying back your 75% stake at a price of $5.25 million. Where's the other $2 million going to come
from? This problem is a whole lot
easier to solve. Your buy-sell
agreement should have a section on valuation. In that section, simply state something like
"for the purpose of valuing a deceased shareholder's shares, any proceeds
of life insurance paid to the company will be excluded from the
valuation." One sentence that could
save a $2 million dispute, in this sample case.
Note: Insurance benefits paid to the company may be
taxable, adding further complications.
So, just like the rest of your buy-sell agreement, the
insurance component needs to be carefully thought through and various possible
scenarios played out. In my experience,
buying the life insurance is an afterthought and almost no thought is given to
the beneficiary question - it usually defaults to being the company, with
surprising unintended consequences.
Finally, the purpose of this insurance is to cover a tragic
situation. As such, term life insurance
with a top-rated company is the best vehicle. Ignore pitches that suggest this is also
somehow an “investment” and that cash value insurance is appropriate. Invest the difference in your own company or distribute the money to
shareholders.
As always, check with your own legal, financial and tax
advisors to be sure any of these ideas are right for your specific
situation.
If you have other approaches or scenarios relating to buy/sell agreements or key man/partner insurance, click "Comments" below and share them with others.
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Terry Weaver
Chief Executive Boards International
http://www.chiefexecutiveboards.com/
TerryWeaver@ChiefExecutiveBoards.comhttp://www.chiefexecutiveboards.com/
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