TABLE OF CONTENTS BUY-SELL AGREEMENTS: ALTERNATIVE APPROACHES AND PRACTICAL SOLUTIONS. Hypothetical Fact Pattern...1

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1 Myron E. Sildon, Chairman of Sildon Law Group, P.C. in Kansas City, has practiced and spoken extensively in a wide range of fields related to business law, including tax law, business succession, qualified plans, corporations, real estate, and estate planning. He was awarded degrees from the University of Pennsylvania (Bachelor of Science in Economics from The Wharton School) and the University of Michigan (Juris Doctor). Mr. Sildon is past president of both the Estate Planning Association and the Estate Planning Council, the predecessors of the Estate Planning Society of Kansas City, of which he is a member. He is a Fellow of both the American College of Tax Counsel and the American College of Trust and Estate Counsel. He is also a member of the IRS Regional Advisory Council on Exempt Plans and Exempt Organizations, the Board of the Small Business Council of America, and The Group. He was the founder of the National Association for Family Business. The Federal Estate Planning Symposium (Kansas City) Award for Excellence in Estate Planning was recently named in Mr. Sildon's honor. Mr. Sildon is the founder of the Federal Estate Planning Symposium and past chair of the Heart of America Tax Institute and the Employee Benefits Institute. He co-chairs the American Law Institute-American Bar Association (ALI-ABA) Institute on Estate Planning for the Family Business Owner, and has spoken at CLE symposia sponsored by ALI-ABA in cities across the country, such as the Notre Dame, Duke, William and Mary, Southern Federal, Georgia, Kentucky, Mid-America, Midwest, and Kansas Tax Conferences. He is a co-author of Missouri Bar Association books on closely held corporations, estate planning for the family-owned business, and family business planning. He is also the co-author of A Practical Guide to Buy-Sell Agreements, published by ALI-ABA. His article, "Strategies for Dealing with Divorce and the Family Business," was published in the June, 2006 issue of Estate Planning. He has been listed in the book The Best Lawyers in America, edited by Steven Naifeh and Gregory White Smith, in the three areas of taxes, estates and trusts, and employee benefits law. Myron Sildon has been actively involved on the Board of Directors of the Kansas City Symphony, Young Audiences, the Kansas City Chamber Orchestra, and Kansas City Consensus, and is a Board member of Rotary 13 (of which he is also President-Elect) and the Business Committee for the Arts. He served on the American Cancer Society National Board of Directors and received its St. George s Medal. A native Kansas Citian, he is married and has two grown children.

2 TABLE OF CONTENTS : ALTERNATIVE APPROACHES AND PRACTICAL SOLUTIONS Hypothetical Fact Pattern...1 I. OVERVIEW, SCOPE AND INTRODUCTION TO...5 A. What Is a Buy-Sell Agreement?...5 B. The Types of Business Organizations...5 C. Reasons Business Want to Have Buy-Sell Arrangements...5 II. WHERE MIGHT BUY-SELL PROVISIONS BE FOUND?...8 A. Corporation Buy-Sell Provisions...8 B. Limited Liability Companies...11 C. Partnerships...12 III. SAMPLE BUY-SELL PROVISIONS...12 A. Every Buy-Sell Agreement Will Differ...12 B. The Sample Agreement is for a Corporation and its Shareholders...12 IV. TRANSFER RESTRICTIONS...12 A. Stock or Membership Certificates Should Have a Transfer Restrictions Stamp...12 B. Opinion of Counsel...12 V. TRIGGERING EVENTS, EFFECTIVE DATE, AND VALUATION DATE...12 A. The Event Date...12 B. Death...13 C. Disability...14 D. Retirement...16 E. Termination of Employment or Engaging in Competition...17 F. Withdrawal or Other Desire to Sell...18 G. Forcing Out a Minority Shareholder...18 H. Permitted Inter-Family Transfers...19 I. Transfers to Charity...20 J. Bankruptcy...20 K. Divorce...21 L. Absolute Prohibition on Transfers...22 Page VI. PARTNERSHIP BUY-SELL PROVISIONS...22 A. The Uniform Partnership Act...22 B. Automatic Dissolution...22

3 VII. VIII. LIMITED LIABILITY COMPANY BUY-SELL PROVISIONS...23 A. The Limited Liability Company Acts of Each State Are Different...23 B. When a Person Ceases To Be a Member of a Limited Liability Company...24 C. When an LLC Continues Following an Event of Withdrawal...25 D. The Operating Agreement Contains Buy-Sell Provisions...25 SPECIAL S CORPORATION BUY-SELL PROVISIONS...26 A. Absolute Prohibitions on Transfers Which Would Disqualify the S Election...26 B. 1377(a)(2) Elections...26 C. Redemptions by an S Corporation of a Shareholder Will Be Taxable...27 D. Life Insurance Received by an S Corporation...27 E. Avoid a Second Class of Stock Problem...28 IX. DO FIX ESTATE TAX VALUES AFTER 2703?...28 A. Buy-Sell Agreements Are Often Used to Establish the Value of Stock...28 B. Often Value Set Under the Agreement Is Less than Interest Would Have Been...28 C. Congress Perceived Such Restrictions on the Transfer of Stock or Partnership Interest as an Abuse...28 D. The Concern Was Particularly in Family Situations...29 E. Prior to F Was Enacted in X. VALUATION ISSUES...31 A. Fair Market Value...31 B. Discounted Values...32 C. Annual Agreement of the Parties...32 D. A Formula Approach...33 E. Value on Death...36 F. Disability Buy-Out Provisions...37 G. Retirement...39 H. Termination of Employment...40 I. Withdrawal or Desire to Sell...40 J. Receivership...42 K. Divorce...42 XI. FUNDING ISSUES...43 A. What Is the Source of Company Funds to Carry Out Purchase Obligation?...43 B. Employee Stock Ownership Plans...46 C. Life Insurance...49 D. Multiple Buyout Events...52

4 XII. XIII. XIV. FORM OF AGREEMENT...52 A. Redemption Type Agreements...52 B. Cross Purchase Agreements...53 C. Hybrid Agreement...55 RECAPITALIZATIONS...55 A. Where Stock is Owned Equally Between Shareholders...55 B. Recapitalization Into Voting and Non-Voting Common Stock...55 C. Have Class A and B...55 DRAG-ALONG AND TAG-ALONG PROVISIONS...56 XV. ADDITIONAL TECHNIQUES TO ENHANCE THE BUY-SELL AGREEMENT...56 A. Buy-Sell Agreements Are Not the Only Way...56 B. Many of the Alternatives are Deductible and Better Than Redemptions...56 C. Examples of Alternatives Spin-offs, Split-offs and Split-ups Sale and Leaseback of Corporate Assets Wage Continuation Payments to Selling Shareholder Deferred Compensation Agreements Severance Pay Consulting Agreements Covenants Not to Compete Defined Benefit and Target Benefit Pension Plans, and Age Weighted Profit Sharing Retirement Plans Employee Stock Ownership Plans Charitable Gifts of Corporate Stock Interest Transfers of Stock to Younger Generation Voting Trusts S Corporations and Limited Liability Companies Sale of the Business to Outsiders Going Public Self Canceling Installment Notes Private Annuities Wind Down Business, While Children Start Up a New Similar Business...70 XVI. ETHICAL CONSIDERATIONS IN ESTATE AND BUSINESS PLANNING...70 A. Possible Conflicts of Interest Among Family Business Owners...70 B. Tax Representation...73 XVII. SUMMARY...74

5 ATTACHMENT A Sample Agreement With Exhibits ATTACHMENT B Sample Conflict of Interest Engagement Letter

6 HYPOTHETICAL FACT PATTERN FAMILY. Harry Golucki (age 67) is married to Happy Golucki (age 65). They have three children, Harry, Jr., (age 42), Martha (age 39), and Steve (age 38). The oldest son, Harry, Jr., a physician in Los Angeles, has never been involved with the family business. He is married and has one child. Harry, Jr., has a strained relationship with his younger siblings, but not with his parents. The two younger children are both involved in the business. Martha is in charge of operations and is generally considered the heir apparent in the business. Steve is the Sales Manager. There is a certain amount of tension between them (and a decidedly distant relationship with Harry, Jr.), but it is assumed (by Harry, Sr. and by Happy) that the two younger children will continue to operate the business in the event of Harry's death. Martha is not married and has no children. Her long time life-partner has two children by a prior marriage, and Harry and Happy wonder whether Martha would ultimately leave Martha s estate to her partner or her children, even though Martha has indicated that she plans to legally adopt them. Steve and his wife have had a rocky relationship for several years, and his parents fear they may seek to dissolve their marriage. They have two children: one child recently graduated from college and is joining the Family Business, the other is a high school senior who completed a drug rehabilitation program as a sophomore. COMPANY. The company is Nevada Manufacturing Company, Inc. ("Nevada"). The company has only voting common stock outstanding, and Harry owns 96% of in his own name; the other 4% is owned by two longtime employees and the two children in the business. Happy owns no stock. Nevada has been successful and has shown fairly rapid growth, although there have been dramatic variations in its earnings over the past five years. Nevada has always been a C corporation for federal and state income tax purposes, but has considered S corporation status several times. In its Reno plant, Nevada produces a patented putter design. (Harry owns the patent.) These it sells to pro shops throughout the West. Recently, however, it commenced operation of a retail golf equipment store, and it hopes to expand this venture to other locations. Page 1