Business Partner Agreements Are You Covered?

Dwain: I do, actually. I have a group called Canyon Ridge Group, wealth management firm.

Toby: A lot of times when you’re working with licensed professionals, we do things, we like to keep things branded but somebody has their own life and then they have the stuff we do together. Dwain is an expert in a particular area that I really wanted to talk about today and that is buy-sell agreements, keyman policies, all these things that you’ve heard of but know nothing about. I’m going to say, first off, welcome Dwain.

Dwain: Thank you, Toby. I appreciate it.

Toby: Maybe you can give a little background on where you grew up and all that fun stuff so people know who you are.

Dwain: Sure, Toby. Thanks for the opportunity today. As Toby mentioned, Dwain Blake. I grew up in the State of West Virginia. I migrated south with military when I was a young man. Went back to college for several years, I got a couple of degrees in the sciences, and then had the opportunity to start an engineering firm when I was a young man in my 20s. With that engineering firm in place, I learned a lot about both the business world, being a marketer, being a business owner, and one of the best experiences was learning about the business I am in today, which is the financial services industry.

Actually, I have two kids. They’re productive in society. I have a daughter who’s a nurse, who’s down in Florida, Georgia, border area of St. Marys, Georgia and my son is a mining engineer out in St. Louis area. Now currently, he’s down at Southeast Georgia.

Toby: How do you avoid becoming a mining engineer?

Dwain: I was actually a petroleum geologist for a little while and then an environmental scientist; sold that company when I was in my 30s. I guess, my son has always been smarter than I ever was. He took the engineering side and I took the geology side.

Toby: I heard a good one. He was an economist in Texas A&M. He said he likes to bug people by just saying, “Hey, in Texas we learn how to frack a tree.” Everybody just roll their eyes.” I love stuff like that; particular amusing. You can’t pick a tree but he’s just like, “We figured how to frack a tree just to tick them off.” So, how did you end up in the financial services world?

Dwain: I always tell people, totally by accident, and then obviously being a geologist and a wastewater engineer. I had my own practices I mentioned that I headed for five or six years. We were doing extremely well and I had a silent partner. As we progressed through business, I learned a lot because I mentioned being a business owner and all the things that come with that other than just trying to make money. You’re trying to preserve your livelihood, preserve the business that you build. When I sold that company back in, I guess was 97, I had signed a non-compete clause obviously with the firm who bought us out. The opportunity was either go do something else for three or four years, while your non-compete was cooking off, or settle in the sidelines and count the few dollars that you got from settling the business.

I actually invested the money in the Pittsburg markets with Fortune 100 group and that group asked me to take a look at the opportunity in financial services. I thought that was a courageous thing in the world, although I had learned all about it in the previous five or six years from my advisers. With that non-compete in hand and some money in my pocket, I decided to enter this group in Pittsburg. Since then I developed a few Fortune 100 corporate jobs down the road and then I have now become a business out of myself again.

Toby: Very cool. So, you sold a business. Haven’t you first hear of keyman and buy-sell? Was it in that setting or was it after you became a professional?

Dwain: Being a geologist, we do what we do. A lot of jokes are but let me mention one. At the end of the day, I think I was a really good scientist, a decent marketer, a pretty good businessman but I was sitting on a desk one day in Morgantown, West Virginia where the office is located […] offices. A gentleman dropped in one day, went to the reception’s desk, and asked if he could meet with the owner, me. She graciously showed the man and I receive anybody in the office to see what they’re pitching. We sat down, he was a pleasant fellow. A little bit older than me, obviously. He had some years of experience and he started to ask me some very open questions about, “Hey, how’s the business? How’s the […]?,” and about the background he read there, I was a fisherman, et cetera and he was an army officer in the yard.

At the end of the day, he asked me some pretty tough questions and he said to me, “Dwain, I work in the financial services industry, and he said, “I wanted to ask you a few questions about your partnership.” The question he basically came up with first was, “If you didn’t make it home from work tonight for some reason, where does that leave your spouse, your wife in this partnership?”

And I said, “You know as an engineer, I never really thought about it.” He said, “Let me ask you another question. Do you like your financial partner that’s invested in you […]?” He’s a nice guy. Sure, he’s pretty good. He’s younger than me. His family’s not invested in the […] when we started it.

He said, “Do you know his wife?” I said, “I’ve met her a few times but I don’t know her that well.” He said, “How would you like to have her as your partner in the business if something happens to your partner?” I started scratching my head. I got a little nervous and he said, “Have you ever heard of a buy-sell arrangement?” and I said, “Nah, maybe, I don’t know.” He said, “What’s in your corporate papers that you just started your charter?” He said, “I’m curious in your incorporation articles. Do you have a corporate attorney?” I said, “I do,” and he said, “At the end of the day he’s probably put that together for you.”

He said, “If you have one—I’m sure you do—do you know if it’s funded property?” I said, “I don’t understand what you’re talking about.” Then he made me nervous. He basically told us a story about if something happens to a partner, how the assets will be distributed, bought, sold to each partnership, to the successors, spouses, and the trouble that it could create in the business. We were a thriving, young business, five years in, netting a lot of money.

Toby: The last thing you thinking about too, right?

Dwain: No. I’ve become […] in the field, the employees, geologist, and the oil contracts, everything that we were doing. That was the last thing I ever thought about until that day and that was the only thing in my mind the entire week. So, we got on the phone with the corporate attorney and found out that we did not have anything funded properly and we acted quickly to do that.

Toby: Let’s unpack that just for a second. You talked about two things. You talked about a buy-sell arrangement where basically, what is it? One party agrees to buy out the other party at a set amount?

Dwain: Yeah, it’s a contractual agreement and you can revisit the set amount every couple years, depending on the growth of the firm, the profitability of the firm, but it’s a contractual agreement that basically says, “If partner A passes away or becomes disabled,” disability’s key here; I’ll come back and visit that later if you want, “If the partner becomes disabled or passes away, then there should be a set value on his or her stock.” That value is going to be contractually the remaining partner or partners are going to be contractually obligated to purchase that stock for that set value, and that way the spouse or the family or the estate of the deceased partner can retain those monies from the firm and the firm can retain the stock and can go forward with the business as planned.

Toby: For those of you guys listening or watching, if you have a business partner, it goes like this. If something happens to your business partner, you already have a set value established for your company. Do you have that money set aside? Because you are going to go through a tough spell. We’re going to keyman too here in a little bit, but let’s just say you lose one half of a partnership. That’s going to be a pretty tough time and a lot of companies don’t survive it. You need cash to survive it, generally. You need cash to buy out the interest of the party who has or became disabled and you need cash to continue to operate.

We’re talking about two pieces to that. You have an agreement to buy out and then Dwain, I’m going to assume that what you said is you didn’t have it funded. So, you had an agreement in place, but you didn’t have it funded. You didn’t have a mechanism other than, “Hey, I’m going to have to come out-of-pocket to pay this person off or their estate off.” How do you usually fund these things?

Dwain: That was back when we had our agreement so when we signed our incorporation articles and get started a few years earlier, we had an agreement in place. What’s funny was the ratio of shares we put in, I think I put up $50,000 and the silent partner put up $100,000. So there’s […] our business was at that point worth $150,000 of the original investment.

Two years later, we grossed to $2 million and netting about $400,000–$500,000 a year. We were worth a lot more. We weren’t funded to protect that growth nor were the legal language did not account for any future growth, so we had to do a lot of adjustments to two years in. The funding would come typically, if you don’t have a lot of cash on hand—as we know most business are cash-poor—cash flow is always king in the business. It’s always blowing 500 directions. To come up with $500,000 or $1 million to buy out the spouse, so to speak, of a deceased partner,  That’s going to be, like you said, probably kill the business. So, life insurance, that’s the gorilla here in the cage we all sometimes don’t like to talk about. But life insurance is the key to the survival of the business and the death or disability of a partner.

Toby: You may think that you are going to live forever. We’re all mortal, but let’s say that you passed earlier than you thought. Ten years in the business and it’s unexpected that somebody goes, that’s what you’re insuring. It’s like, “Hey, how do we deal with this situation?” There’s really two sides to it, by the way. I tend to focus more on the how does the business survive. If that had happened to you, would that have a major impact were you’re the main guy in the business?

Dwain: I was the face of the business, the name on the wall, the silent partner is no more than an investment seed and maybe pushed a few cases all the way here and there, but I was on the pavement everyday. I was up to 42 professional scientists working for me […]

Toby: Let’s look around then, Dwain. Imagine I’m your partner. All I get is I put $100,000 in and I really don’t have day-to-day control. You went out on your hire, you have 42 engineers working for you. What am I going to do if something happens to you? How am I going to keep that company going if I’m just the guy that put on that investment? How am I going to make sure that I protect my investment? How am I going to make sure that that company is transitioned? Let’s talk about that. What are the ways to protect that person?

Dwain: In a perfect world, obviously there will be key managers in place. These key people would be running different divisions of the company at this point. It could maintain some sort of profitability. Obviously, the laws of human power of having the CEO of the company—me—being gone and the connections I have with the major clients that would suffer some, but we have some proper funding in place, you could go out and replace me. Maybe not me but you could find talent, replace that talent to come in and run an organization that’s already been built.

That happens every day in the business world. If you have $500,000 in your pocket to go […] somebody, […], you’ll steal someone—I hate to say it that way—you can take someone from another marketplace, put them in your company have a […], it won’t suffer too much of a loss. That’s the same thing with your key managers if have on your staff.

Toby: I look at it like this. Let’s go back to the same scenario. Let’s say that I’m your partner and I’m not even a professional. I’m not even an engineer and I’m running engineers. I’m going to have to hire somebody pretty high potent. Either I’m going to have to promote from within or I’m going to have to bring in another company that perhaps going to acquire. All of that’s going to require that the company continue to survive and thrive during that time. The only way it’s going to that is if you have the money to give you that offer. And keep in mind that you’re buying out the family of the previous partner depending on what your agreement says. So, what’s the way to fund that? What is that called?

Dwain: The scenario that I had, I was actually a business owner, shareholder but I’m also the keyman. I was a top keyman in the company. We have four or five eventually, but I was a keyman so there’s additional insurance on my life that would go to the surviving partner or the partnership. Now, he has the funds to replace the talent if he lost me. He also has the funds to buy out my spouse and children if he’d stay around […].

Toby: There’s a couple ways to look at it. Let’s say in the tax side, a lot of folks immediately go into the, “Can I deduct this as an expense?” I’m going to say typically no, but there are a few cases where it could be and usually, if there’s a big obligation of the firm. Was your firm pretty lean and mean or did it have some obligations?

Dwain: Typically, the only obligations were each payable to the contractors or subcontractors. We were pretty profitable. We were running 20% net plus on a couple of […] annually. We didn’t have much cash because we had a large payroll. We pay about 40 people, staff and professionals. You can imagine the payroll’s half of our gross take. Not much cash-on-hand ever. That would have been detrimental to a business that not be funded if something happens to us.

Toby: Let’s go back to your business. We’re insuring Dwain and in the event that something happens to Dwain, that could be disability, too, right? You’re hit by a truck and you’re disabled.

Dwain: Life insurance, disability insurance, any type of insurance recover even critical illnesses or injuries. Things of that nature all wrapped into one contained policy now.

Toby: So, you do one policy that covers both.

Dwain: Right.

Toby: If Dwain gets into a car accident and is not able to continue to run that company or maybe it’s a year. Maybe you’re in recovery mode. There’s monies that go to the company generally in a keyman policy that allow the company to weather that storm.

Dwain: A little bit different than your personal disability. Maybe me as the other had personal disability to replace […] and then the corporation disability coverage would replace my functionability. My abilities are in profits while I’m out for a year or two on the sidelines.

Toby: This is really important for those folks that are passive investors or gap funders or something when you have a project going on. I can use a personal example, Dwain, I’m interested in what your take on it. We did a sublet years ago where we were having to get bigger space and we had a really nice space that somebody else wanted. They said, “Hey, we’ll come in.” So we just said, “Hey, we’re going to insure that individual.” They looked at us like we are from Mars. We said, “Well, you’re going to sublet this space, but if something happens to you, we’re still obligated underneath that lease,” and this was not a cheap lease. This was $700,000 a year. We said, “Hey, we want to make sure you have term insurance during the term of this period.” It was only about a five-year period and so we just said, “Hey, by term insurance, we’ll pay for it, so that if something happens to you that it pays off that lease. We don’t have to worry about the obligation.” Do you see that situation arise and people miss it?

Dwain: Yeah. People overlook that quite often just because it’s not obvious. Traditionally, you think two partners, three partners, somebody dies you want to protect and buy the spouse out, that’s traditional. But there’s so many segues of a corporate succession planning and it gets in a lot deeper partnership, solid investors, hard money lenders, just like you mentioned in that case there are so many different.

Last night, I had dinner. I’m here on the coast for a couple of days on the east coast. I had dinner with a good friend. He already started a business 32 years ago and he’s succeeding it out to a nephew, a family member, and he’s going through each year a little more proportional buyouts, but they’re buying out all the other partners, so this gentleman was going back and buying out 2–3 in corporate shares. They let out early to […] employees in and now their buying these guys out of retirement and now he’s passing this business down to his nephew. I was going through all the structured life insurance. Millions and millions of dollars of life insurance, I’ve done it all for decades.

It’s so many angles to this business and it doesn’t just stop with the sale of the first policy. It continues all the way to the succession of the business to the last partner. Now, my junior partners in my firm are working with the junior partners who’s receiving their shares and we’re building up his insurance to fully protect his family. It’s continuous. As long as the business is growing and moving down the field, we have to move with the business partners as they succeed their shares, sell their shares, and […], et cetera.

Toby: That gets complicated, right? This isn’t something you do on your own.

Dwain: […] overnight and it’s good to have a professional in this industry that has got credentials. When you’re looking for someone, make sure that they have credentials in this industry.

Toby: When you say credentials, could I just go to my local insurance guy? Big farm or whatever.

Dwain: They’re very good at what they do. They are well-rounded. They sell homeowners and things like property and […]. The depth of this type of planning is more like your attorney has to be on board, your tax people have to be on board, but the planning that we do is a specialized type of planning. I’ve got, I would say, if not hundreds, at least maybe a thousand hours or more of studying this, if not hundreds or more plus. But credentialing, you take specific courses and then you apply it. To my 20 years of experience plus working with business owners, you got to look for the right professional who specializes, just like you wouldn’t go to a tax attorney to do XYZ […].

Toby: Actually, maybe you should. Just kidding. Alimony is not deductible anymore and it’s so scary. If somebody needs to get a hold of you, somebody is in that situation, where they have unfunded obligations or they’re relying on somebody else to do something and they have a sizable investment. For example, I’m a gap funder, I put a bunch of money into a joint venture with a contractor, and that contractor is going to do all the rehab or something, there’s a magic number where maybe I should have an insurance in that contractor because if that contractor passes, I’m going to have to finish that project. I’m going to need the money. What’s the magic number where you really should be looking at insuring something like that?

Dwain: Obviously in the insurance business, if you are talking about strictly life insurance, typically $50,000 is the minimum life insurance value with any company. But, when I look at that and the simple answer is that when I meet with business owners or investors, I say, “How much can you stomach to lose in a bad situation? Think of the worst situation that could happen with those investments while you’re active with it. How much can you afford to lose in […]?” If they say, “None,” I say, “Then that needs to be insured.”

Toby: Yup. Now you said the magic number’s $50,000 is the smallest, but obviously that’s probably too small. Somebody puts $50,000, they’re not going to go say, “Hey, I’m going to get an insurance,” unless it’s really, really cheap. We were talking before about some buy-sells and some other folks, how much is insurance nowadays? If I’m just insuring something that’s for a short period of time, say we’re doing a rehab for a property, how much are we talking about?

Dwain: Temporary coverage and let’s say the investors are in their 40s, we’re talking about $30, $40, $50 a month to cover a small product.

Toby: Yeah, think that in. We are talking about $30 or $40 a month to cover. How much are we talking there?

Dwain: $1000 investment, $150,000 investment. $40 a month will cover it.

Toby: Think about that. You are paying more for the property insurance than you are to cover your investment in the event somebody has… By the way, I’ve seen this personally at a personal friend who’s in the middle of a large development. Both gentlemen were actually friends of mine that I’ve known for a long time. They were friends of my mentor and they were doing a big development.

At 52, one of them passed away of a heart attack and the spouse of the decedent, the spouse of the guy who passed away, hated the other partner and tied that project up for a good two years because they didn’t have any such documentation. They didn’t have the buy-sell which would have just paid her off and that keyman which meant that the guy went through financial hell to try to get that project completed.

I just remembered that. That was a long time ago. That was probably more than 15 years ago that I saw that, but it was one of those things that left an impression because I was like, “Who would have thought that, that was going to happen?”

Dwain: We’ve all been in the business for as long as we have. You and I, Toby, we’ve seen several cases where it’s been very detrimental to the family and/or the business, or both.

Toby: What’s the one you could explain? I love stories so do you have any stories that stick out in your head?

Dwain: Several. There’s good ones and bad ones. I guess I could play a story of a couple of business owners that I know years ago. This is not a good case. This was actually when I was just getting into business before our credential. I was chatting with them about some employee insurance, about this and that. At the end of the day, one partner was just against insurance. He was like, “I don’t want to put anything, any money out there. I don’t believe in it. It’s something to bury us […] expense.

Unfortunately, what happened is that partner passed a couple of years later. He had a heart attack, actually, at work and passed there in the office place in his 50s. I was a new guy in the insurance business and I’ve seen this business operate. That’s why we’re doing some employees […]. His spouse would not let them. He was not a good investor with his money […] with his finances and he left his wife and two college-age children in a bad way. That was a bad story. I got great stories too, obviously.

Toby: You think about it. All you’re doing is entering into an agreement. I use doctors as an example because a lot of times the spouse isn’t a medical doctor. They can’t run the business. You’re always look at it saying, “Do you have colleagues that you can sell to and do you want to go up and have an agreement with them that says, ‘Hey, if I pass, you take on all my patients.’ You buy an insurance policy on me, you keep it up and the beneficiary is my spouse in exchange for those shares.” So, somebody passes, the money goes to the surviving spouse. There’s cash, the company goes to the party and all they were out was the premium payments over the years which as we just said can be pretty small.

Dwain: Yeah. You want to look at it that way because at the end of the day, you’re growing your company. You grow a company for profit, but a company typically, the employees of the company close […] it’s a family. So, if you take care of your family, with a properly funded by […] your spouse, your children. What about all those other families that put their trust in you as a business owner, as a leader, as a developer.

Toby: When you have employees, you owe them a responsibility, too, to make sure that business doesn’t just topple if something happens to you.

Dwain: There are other companies coming in and purchasing, they’re buying you out and taking over, taking the helm and […] boys down field, that’s a whole another part of the agreement.

Toby: Now, it’s easy when you have partners. What if you’re just a single person? How do you seen these work?

Dwain: Sole proprietors or single owner, single member LLCs, should I say professional corporations, there’s a lot of planning to do. Obviously, they are more focused on what’s going to happen to my employees, that might be a small group employees, it might be a large group of employees […]. Same scenario we just mentioned. They might go across town to our competitor. Our friendly competitor and say, “Hey, if something happens to me, let’s get an agreement between ourselves. I want you to take over these assets. I want you to take over this company. I want you to move it forward when I’m gone. I also want my spouse to be properly taken care off.”

That’s one situation you’re into, but again using the insurance products or different types of investment for that person to setup a succession, because what happens when you get to “retirement age”? Is the goal of every business owner just to take the cash out of retirement and close the doors? Probably not. It’s a pride factor at some point. Pride goes along with, “Hey, I’m proud of what I built.”

Just like with my friend here on the east coast I had dinner with last night. He’s proud of his company. He doesn’t have children, he’s passed that to his nephew, his wife’s nephew, so he’s become a family member. The pride factor is, “I want this $30 or $40 million corporation I built over 30 years. I want it to continue a legacy of my name.” So, there’s a legacy type of planning you can do around a single sole member.

Toby: And while they are alive, it’s easy.

Dwain: Yeah.

Toby: Where the sticky wicked is, they’re disabled. They have Alzheimer’s or something. I always use my father as an example because he had Alzheimer’s for a lot of years before he passed. There’s a transition period. We hear about it. Somebody passes away, but quite often they’re incapacitated for a number of years before they pass. So you have to have the transition period covered as well.

Again, it’s easy when you’re alive. You can transition the shares. If something happens to you and they are not all transitioned, you can document that ahead of time. Solo practitioner, you just have a keyman policy on them, too, in case they want doctors underneath them. For example, there’s a professional medical practice. Maybe they want to allow somebody else to come in and run the practice, and you just lost the main person, that company is going to need some money. But again, they want to have that discussion while they’re healthy with those party saying, “Hey, I have a keyman policy. It’s going to dump some money and here’s what I want you to do if anything happens.”

Dwain: Yeah. We don’t do this type of planning from the hospital bed when it’s too late. Once you experience health crisis in your life, your insurability may become extinct. You might get insurance, it might be super expensive now, it may not be affordable at that point, so obviously while we’re functional, we’re healthy, we’re running our business, we have to put this not all the way to the side, we have to put it close and accessible enough to when we look at it at least every couple of years because when you need it and you don’t have it, we get those calls.

Toby: It’s too late.

Dwain: Yeah.

Toby: But you can always transition again. You talked about retirement planning. There’s a lot of benefits. There’s a lot of tax benefits; I’m a tax attorney, obviously. I look at it and say, “Hey, there’s some huge benefits that come with these policies.” You can marry those together and you can be killing two birds with one stone, so to speak, saying, “Hey, I’m going to make sure I have a great retirement, but if something does happen, I’m going to make sure that my family gets a big chunk of cash and my business survives.”

Dwain, how does anyone get a hold of you if they do want to talk to you?

Dwain: You can just go to the Anderson Financial Services website, look us up there. My direct number is open all the time. I can give you the cellphone number as well.

Toby: Yeah, sure.

Dwain: It’s 912-856-5007.

Toby: Yup, and I’ll post all that information so people can see it. You’re at the Anderson Financial Services and again, we work closely with a number of advisers. Dwain being one of the great ones there. Obviously, part of our excellent group. Lots of experience. Thank you for coming in and sharing a little bit about buy-sells and keyman. If there is one takeaway you want people to walk away with, what would it be?

Dwain: Just like I was when I was young in the business, in the engineering services business, you have a lot to live for. You live and breathe your business. I mean, it’s 24/7 out there and you put a lot of things to the side. Your time with the family can sometimes suffer because you try to build something. I’ve seen it so many times. You put all these time, effort, and energy into building something for a reason. Everybody has their own reason. Protect that reason.

Toby: I like that. Whatever your reason is, protect it. That’s fantastic. Thanks again, Dwain. If anybody needs to get a hold of you, I’ll put the information up on the website. Again, if you are protecting any sort of investment, even if you’re just a partner in the business, or you have employees, or you have an investment that’s out there, you want to make sure it’s protected. Talk to a guy like Dwain to make sure that you are insuring it. It’s inevitable that we’re all going to hit it and if it happens sooner or later, that you’re protected absolutely. So you can make sure that you don’t suffer needlessly as a result of something that’s very predictable. Thanks, Dwain.

Dwain: Thanks, Toby. I appreciate you having me here.