Writer: THANDO SIBANDA, Deputy Head of Legal at Founders Factory Africa:
It’s all too easy to think of startup founders as young, vigorous, and touched with immortality. But the sector is full of stories of founders dying before their time. Such deaths are always tragic but can be even more so when there isn’t a clear plan in place.
Without that plan, conflicts can quickly arise between the family of the deceased, investors, business partners, and other interested parties.
Often, the source of this conflict is the founder being subject to a “deemed offer” or “deemed sale” clause.
This clause leads to an automatic forced sale of the deceased’s shares.
When a deemed offer is in place, the deceased’s family can lose access to that person’s stake in the business, even if it’s earmarked for them in the will.
Knowing that, how can founders safeguard the interests of their businesses and investors while protecting their family legacy?
The answer relies on mastering the detail and being diligent in execution.
Understanding deemed offers
A deemed offer provision stipulates that under specific predefined circumstances — generally described as ‘trigger events’ — a shareholder is ‘deemed’ to have offered their shares to the company and/or the remaining shareholders for purchase. In agreements where a deemed offer focuses on a sale to the company and the company fully or partially turns down the offer, the remaining shares are then offered to the other shareholders proportionate to their existing shareholding.
When such a clause is triggered, the venture’s other shareholders are generally given first option on the shares at a pro rata rate in relation to their existing shareholding. In the absence of an agreed-upon price for the shares, the shares would generally be offered at their fair market value.
The offer will then need to be accepted for it to be binding on the other shareholders. If the offer is not accepted, the deemed offer would fall away, meaning that the affected shareholder (or their legacies) would have full title to the shares.
Most shareholder agreements would generally contain a list of events concerning shareholders that would trigger a deemed offer. These events generally include, but are not limited to:
- Death
- Shareholder disability or incapacity
- Insolvency
- Sequestration in the case of natural persons
- Liquidations/business rescue/administration in the case of juristic shareholders
- Criminal convictions, etc.
For the purposes of this article, we’ll focus on death.
From the perspective of co-founders, shareholders, and external investors, deemed offer provisions play a vital role in maintaining an efficient capital structure. This framework ensures that, among other things, significant ownership stakes are held by active contributors who play a pivotal role in the company’s ongoing growth, as opposed to passive stakeholders. By doing so, these provisions prevent the dilution of ownership concentration and safeguard the overall ownership stake of existing shareholders.
In the case of a shareholder’s death, the estate’s executor, often unfamiliar with the business, can disrupt operations and risk business continuity, especially when the deceased held a significant stake in this business. Executors generally prioritise the liquidation of a deceased estate, potentially leading to the sale of the deceased shareholder’s shares (typically to the highest bidder) to external buyers.
A more favourable outcome for surviving shareholders and/or the company is having the first option on whether they wish to purchase the deceased’s shareholding or not.
Navigating the crossroads of business and personal estate legacies
While a forced sale of a deceased founder’s shares may intend to secure business interests through a seamless transfer of ownership to surviving key stakeholders, the business’s interests don’t always align with those of the deceased founder’s personal legacy.
However well-intentioned, a forced sale triggered by a founder’s passing can harm the value of the founder’s personal estate.
As such, it becomes crucial for founders to equip themselves with robust financial planning knowledge, striking a balance between business pursuits and the preservation of their personal estates.
Maintaining family interests during business succession requires skillfully balancing ongoing business operations and protecting the founder’s estate. It is, therefore, of paramount importance that the terms of shareholder agreements are crafted in a manner that protects both the founder’s interests and the company’s path forward.
To achieve this balance, active and intentional discussions between founders, other stakeholders, and investors must be had.
Negotiating deemed offer provisions: practical considerations
Within these negotiations, there are a number of options that founders can explore when it comes to keeping a deemed offer clause in place while doing right by their families.
One option is to explore partial deemed offers. Here, founders can negotiate for only a portion of their shares to be available for sale when a deemed offer occurs following their death.
This measured approach ensures that the founder’s estate retains a stake in the business, allowing it to share in the venture’s future prosperity.
The portion of shares subject to a forced sale can then be negotiated with the remaining stakeholders. From an investor or existing shareholder’s perspective, the real risk in agreeing to such a compromise could be if, post-sale, the deceased estate continues to hold a significant portion of the venture’s shares, complicating voting etc.
If a deceased estate holds just a passive or non-controlling interest in the business, it shouldn’t be that much of a concern.
Another option is to explore non-discounted deemed offers. It is quite common in deemed offer clauses for the remaining shareholders and the company has the first option to purchase the deceased’s shares first at a certain discount.
While this can feel cold, it may be a necessary incentive for them to take advantage of the offer, simultaneously increasing their ownership and offering liquidity to the departing deceased shareholder’s estate.
This approach streamlines the sale process and mitigates the need to involve new third-party buyers.
The discount generally varies from one transaction to another, depending on the influence held by the requesting shareholder (usually an investor and/or majority shareholder) and the bargaining power of other shareholders.
While there is no guarantee that an investor would agree to a zero discount on a forced sale, a founding shareholder may attempt to negotiate for one or in the worst case, a reduced discount.
Needless to say, negotiating these options requires a sound understanding of the law and/or corporate transactions in general.
As such, it is always recommended that founders seek the help of legal counsel to offer guidance tailored to individual circumstances.
Exploring alternative approaches
From a personal estate planning perspective, there could be other ways in which a founder can plan their affairs such that in the event of their death, there is business continuity and that the surviving shareholders are not prejudiced.
While the below does not constitute legal nor financial advice, here are some possible thoughts that could be unpacked with the help of a qualified finance or legal professional:
Buy-sell agreements
In this type of agreement, co-shareholders can take a life insurance policy to cover the lives of each other. In the unfortunate event of a co-shareholder’s passing, the life insurance pay-out can then facilitate the purchase of the deceased shareholder’s interest by the surviving co-shareholder.
Keyman insurance
Companies can opt for life insurance policies on key shareholders’ lives. In the event of an insured shareholder’s death, the insurance proceeds (generally payable to the company) can then fund the company’s repurchase of the shares held by the deceased shareholder.
The protective shield these products offer, by ensuring seamless transitions and business continuity, aligns well with the heightened responsibilities and higher stakes of more advanced startup phases.
Therefore, while the cost factor might be a challenge initially, as startups grow and their financial capacity strengthens, these insurance products become strategic tools that warrant some consideration.
It pays to plan ahead
In the world of startups and visionary founders, balancing business success with family legacies requires careful planning.
Deemed offer provisions in shareholder agreements play a vital role in this process. By negotiating thoughtfully and seeking expert advice, founders can chart a path that preserves both their business and personal legacies.
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