So what are the relevant business valuation standards applicable to valuation process buy-sell agreements?  Often valuation standards are absent from a buy-sell agreement.  Business valuation or appraisal standards are rules of conduct and ethics that appraisers are required to follow depending on the valuation credential obtained.  There are quite a few selections available for business appraisal standards.  For example:

·         The Uniform Standards of Professional Appraisal Practice (“USPAP”).  Generally, USPAP represents the accepted and recognized standards of appraisal practice in the United States.  Additionally, this is often followed by real estate appraisers.  The main rules deal with appraiser conduct and reporting requirements. 

·         The ASA Business Valuation Standards.  These standards are published by the American Society of Appraisers and are updated on a somewhat regular basis.  The American Society of Appraisers also publishes the Principles of Appraisal Practice and Code of Ethics. 

·         The AICPA Statement on Standards for Valuation Services (“SSVS”) No. 1. These standards are for certified public accountant guidance. 

·         The National Association of Certified Valuators and Analysts (“NACVA”) Professional Standards.  NACVA publishes these standards for its members. 

·         The CFA institute Code of Ethics and Standards of Professional Conduct.  The CFA is not specifically considered a business valuation credential, but many appraisers hold this designation. 

The key takeaway here is that if the standards are not identified in the valuation process buy-sell agreement, then the appraiser is not technically required to follow any standards or ethics requirements. Additionally, if more than one appraiser is required for the process they may follow different (or no) standards and this can lead to dissimilar results and create problems for the owners. It makes sense to understand the business valuation standards and specify what the appraiser(s) will follow when conducting the analysis.

The valuation date should be defined in a valuation process buy-sell agreement.  Selecting a valuation date is necessary for the appraiser(s) to begin the assignment.  The valuation date will dictate what information is applicable to the valuation analyses.  For example, if the triggering event specifies that the valuation date will be as of December 31, then the valuation will be effective as of that date.  Future financial information will typically not be included (i.e. information after 12/31) in the analyses with the exception of items that are reasonably known or knowable as of the valuation date.  Additionally, the appraiser(s) will use the valuation date for other key elements of the valuation process.  For example:

·         Pinning down the subject company’s financial information;

·         Estimating the variables that are included in the cost of equity and debt; 

·         Selecting comparable companies / transactions in a market approach;

·         Economy analysis; and

·         Industry analysis.  

Further, the valuation analyses can get slightly more complicated if the valuation date is not on a calendar year end or fiscal year end. It is likely impossible to identify when a triggering event will occur in the future. However, if the date is defined in the buy-sell agreement, then there will be more clarity in the process and frame out what needs to be done. The parties can agree to a specific date after an event or specify that transactions in the company’s shares will be on a calendar year end. The point is to take steps to identify this critical date so there are no surprises.