We Had an Agreement as to Value, But Ignored It. Now What?

Quite often a shareholders’ agreement or operating agreement will contain a provision establishing the company’s value in the event of a buyout of one of the owners.  Sometimes the agreement requires a valuation to be performed at the end of every year – possibly by the company accountant – and may even set forth a formula that is to be followed annually, or at least utilized as a guideline. Many small companies, of course, are run in such a way that it is  not surprising in the slightest that this yearly valuation is often not done. In fact, I can count on one hand the number of companies that I have seen actually follow this mandate to value itself yearly.

So, what happens when there is now conflict among the owners? One of them wants to leave, and the other owners would rather let him go than get involved in costly business divorce litigation. Sometimes the only dispute in such a case comes down to the dollars, not whether there will be a departure. Likewise, the majority owners may want a minority owner to leave who also doesn’t have the stomach for a fight. The shareholder’s agreement may have a formula set forth – from 20 years ago – as to how to value the company. But the called-for annual valuation was never done. Or, it was done for 3 years, and then it stopped. How does the company get valued now?

There is no single right answer to this question, unfortunately. What a court might do is likely going to be very fact dependent. If all the owners were aware of the obligation to value the company annually and they all ignored it, a judge may deem the requirement to have been effectively “written out” of the agreement. But what if you were a minority owner who had no ability to control whether the valuation was done and you complained in the early years about this provision being ignored? You certainly have a better argument, but you still failed to do anything formal to assert your right to be governed by such a valuation.

It also depends on the circumstances of the current buyout. If the departure is voluntary, then of course the parties are free to agree to have the valuation done now that was supposed to have occurred for the past 20 years. But if shareholder dispute litigation is in play, as a voluntary buyout seems not a viable option, then one can argue that the formula should not apply at all. If one is arguing for a buyout under the shareholder oppression statute, one may argue that “fair value” – the value set forth in the New Jersey statute that governs business divorce litigation – should apply. This is an especially powerful argument if the agreement contains a formula that does not yield a value as high as fair value. Why should majority shareholders be permitted to act improperly toward the minority and then be rewarded with a discounted value?

But, as with many things, there is no clear-cut answer that applies in all circumstances.  At least one judge in the past has determined that the parties’ agreement set forth the parties’ reasonable expectation as to value and applied it in an oppression setting. So, while there is no iron-clad answer, be sure you are represented by an experienced shareholder dispute attorney who understands the issues and can make the best argument for value possible for you.

Please do not hesitate to reach out to me at dcroberts@norris-law.com.