What's in April's Best Interest?
Ben and Lillian Jacobs continued to work together in their print shop business even after their divorce. But when Ben received a tempting offer for the business, the family was split over whether or not to sell. An old friend, who votes the stock held in trust for their daughter, April, was cast in the role of Solomon.
Lawrence Tynan, Associate Justice, Probate Court, Madison County
IN THE MATTER OF: Jacobs vs. Jacobs-Ranier
A petition has been brought before the Court by Dr. Max Worthington of Redding, California. Dr. Worthington is the trustee of an irrevocable “Qualified Subchapter S trust” established by former spouses Mr. Ben Jacobs and Ms. Lillian Jacobs-Ranier for the benefit of their only child, Ms. April Jacobs (age 22). The corpus of the trust comprises 4,000 shares of common stock in Jacobs Printing, representing 40 percent of the voting common stock in the company. These shares have been gifted to the trust over the past 20 years by the parents. Each of the parents retains 3,000 shares, or 30 percent.
Dr. Worthington represents the trust shares on the board of directors. The board is considering an offer from an outside firm to buy the company. One of the shareholders, Mr. Jacobs, favors the sale, and the other, Ms. Jacobs-Ranier, opposes. Acting on his attorney's advice, Dr. Worthington has asked the Court for instructions approving the sale, which he believes to be in the financial best interests of the trust. But he has also informed the court that he is not clear on whether the sale will be in the long-term best interest of the beneficiary, Ms. April Jacobs.
At an informal hearing in Judge Tynan's chambers on April 15, 1995, all parties stated that they wished to avoid a formal hearing. They stipulated that, with the Court's permission, the trustee could confer with the trust managers at Redding National Bank and also engage an expert advisor on family business to investigate the facts of the dispute and make a recommendation to the trustee. All parties have agreed to abide by the action of the trustee as guided by these advisors, and to hold the trustee harmless for the outcomes of the decision.
The trustee shall file with the Court a copy of the recommendations and reports submitted by all advisors.
FROM: Dr. Max Worthington, D.V.M.
Worthington Animal Clinic
TO: Mr. Family Business Advisor
DATE: April 10, 1995
Thanks very much for taking on this project. I am under a very tight time constraint. The offer to buy the company expires in one week. I'll give you a little background, and then have you talk with all three of the family members I will try and give you just the facts, without editorializing.
I have been friends with Ben and Lillian since college. My wife, June, and I used to double date with them almost every weekend. They set up this trust soon after they were married, on the advice of Lillian's father's banker. They asked me to be the trustee, since I am April's godfather. They told me all I would have to do is sign papers once a year until she was 31, at which point she gets all the money. It has gotten more complicated than that.
They founded the printing company in 1974. Ben is now 50 and has been president of the firm since its founding. Lillian is 49, has held many positions, and is currently vice-president and general manager. April Jacobs had been employed in the company on a part-time basis since she was 16 years old, and after graduating from junior college in 1992 she began working full time as a salesperson. Ben and Lillian were divorced in 1991, and Lillian was remarried in January 1995 to Arthur Ranier.
The board of directors consists of the two of them plus me. Until February 1995, major corporate policy decisions were made by consent. At the quarterly board meeting in February, Ben announced that he had found a buyer for the business, Allied Printers, and had agreed on a handshake to sell the entire business to Allied Printers. Lillian opposed the sale. Both of them looked at me and expected me to break the deadlock. I talked with the financial managers of the trust at the Redding Bank and they suggested that I ask the Court for instructions. You know the rest.
While searching for a family business advisor, I also had a valuation expert take a look at the business. He said the market value is between $2.5 million and $4 million. He also said that the value of the shares held by any of the three shareholders would have to take into account a discount for non-liquidity and a discount for minority status, which would add up to about 40 percent.
Ben has given me the Allied proposal, and I have gone over it with the people at the bank. They say it is a simple, well-structured offer of cash and Allied stock. Ben would take his portion in stock, so the trust and Lillian would have cash. The bankers have looked into the tax consequences of the deal and tell me that, from their point of view, it is a fair liquidation of the trust's assets—that is, reasonably converts the trust's assets from company stock to cash. That doesn't help me too much, though, since I still have to decide what I think the future will hold, and whether April is better off with the money or the company.
Please talk with Ben, Lillian, and April as soon as you can. I need your recommendation by next Thursday. Let me know if you need anything else from me. Thanks.
INTERVIEW WITH BEN JACOBS
Family Business Advisor: Tell me a little about the history of the company.
Ben: I had always wanted my own business. I'm the type that can't work for anybody else for very long. Lillian and I started this business on January 15, 1974, which was April's first birthday. It was really tough in those years. We almost lost our shirts four or five times. But I will say this: Lillian stood right by me all the way. She was the best support a man could hope for. Nobody ever had a better wife, and her contribution to the business was more than I could have hoped for.
Advisor: How big was the company when you started?
Ben: There was just Lillian and me, and two part-time machine operators. I did most of the selling, and she ran the office. We did about $75,000 the first year, which helped us make payments on the equipment and pay the rent, but not much more. We had a little startup money from Lillian's family and my savings, but that went pretty fast.
Advisor: How did the business grow to its present size?
Ben: Through a little good luck and a lot of long days. We had gotten a good reputation for quality over the first few years, but we weren't generating enough cash to upgrade our basic equipment. Then we bid on a huge job to provide business forms to the Redding Lumber Company. We were over our heads, but the purchasing director was a friend of mine from high school, so I knew we had a shot. When we were named as one of two finalists for the job, we decided to take a big chance and buy a high-quality color printer to increase our versatility. That's no big deal now, but in those days they were state-of-the-art. When we got that contract, we doubled in size overnight. That was the beginning of our fast expansion.
We started doing a lot of work for the State in 1984. That was the year we opened a second store in Sacramento, and two years later we opened in Mendocino and Calistoga.
Advisor: What is the current size of the company?
Ben: Well, this is confidential, right? I mean, these aren't public documents or anything, are they?
Advisor: As far as I know, this is just between us.
Ben: Well, O.K., last year we did about $3.4 million. We've got about 20 employees at the four stores. We're a good operation, but not that profitable anymore. We probably took out a total of only about $150,000 last year for both of us. Competition is eating us alive. You just can't charge a fair price anymore—somebody will undercut you, even if they take a loss. That's why it's time to cash out.
Advisor: Tell me about this buyout opportunity.
Ben: It's a gift from heaven. Allied is a big chain in Los Angeles and San Francisco, but they haven't done much in this part of the state. We have been talking off and on about a deal for several years. This seems like just the right time. It will give me enough to take it easy for a couple of years, and then start something new. It would be good for Lillian, too, although she won't admit it. And it would mean that April doesn't have to worry about anything for the future, and doesn't have the aggravation of running this business.
Advisor: What are the terms of the offer?
Ben: Do we have to go into that?
Advisor: It would be hard for me to advise the trustee without knowing what, exactly, has been offered.
Ben: All right. They've offered $3 million in cash and stock, and some other considerations.
Advisor: Like what?
Ben: They've asked me to join the Allied board, and to stay on as a consultant to their northern region operations.
Advisor: I see. What made you decide that this was the right time to sell?
Ben: If we don't do this now, Allied will probably move into the area in a big way on their own. They can undercut our prices and wait us out. There isn't much we can do with new products. The only way to compete is with price and marketing, and the big companies can beat us at that game. Believe me, I wouldn't throw away this company if it had a future. This is our chance to get out golden.
Advisor: What about Lillian and April? Aren't they partners in the business?
Ben: Lillian and I used to run everything as a team. We drove to work together every morning and made plans. We talked in her office or in mine or on the phone 20 times a day. On the way home we would talk about what happened during the day. Believe it or not, that continued even after I moved out of the house—except for the driving part. I figured that even if we didn't live together anymore, we were still partners. And April was showing a real interest.
But lately that's changed. Lillian doesn't seem as interested in the company anymore. Do you know that she took off with Ranier for three weeks in the middle of our busy season? Does that sound to you like her mind is still on our partnership? What's the point of putting blood and sweat into this business under those circumstances? It's better for April to have a fresh start. Selling off this company will make her a rich young woman. She can use the money to do whatever she wants, without Jacobs Printing hanging around her neck.
Advisor: If the decision is not to sell, what will you do?
Ben: If Lillian won't sell this company to Allied, then she can damn well buy me out. She's going her own way. She's made her choices. Now I want to be free to make mine. I'll take her to court if I have to. I'll file a minority shareholder suit. Max has no choice except to let this sale go through.
Advisor: Thank you.
INTERVIEW WITH LILLIAN JACOBS-RANIER
Advisor: Tell me how you got started in this business.
Lillian: Gladly. My father had been a fruit grower all his life—mostly apples and cherries. When Ben and I got married, as a wedding present he sold off one of his apple orchards and used the money to stake us in the business. I had managed Papa's office for years, but I always wanted to go into the restaurant business. Ben didn't know anything about food and he thought a store would be better. So we bought out an old friend of Papa in Redding who had a small printing store and wanted to retire.
Advisor: Did you always work together?
Lillian: Of course. Ben wasn't very experienced in business at first, so I had to show him a lot of the basics. Papa came down to the store and helped a lot, too. April was just a newborn then, so some days I was at home with her. But mostly we set up a crib and diaper table and stuff for her right in the store, so we were always there.
You know, it was still the early 1970s, and Ben was a typical guy. He was nervous enough about taking the money from Papa. So I had to do some things to make him feel better. That's why he was the president even though I knew more about business. I didn't mind, and I think it made a big difference to him.
Advisor: How did it go from then?
Lillian: We worked hard and things went well. Those were the happiest days of our lives. That was before Papa got sick and while his other businesses were still doing well. And Ben and I were a great team. We always agreed about the basics of running a business—you know, concentrating on quality and trying to keep customers happy so they would stay customers forever.
Advisor: Did you always work full time?
Lillian: More or less. We tried to have more kids, but after five or six years the doctors said we probably couldn't unless we tried some very expensive treatments, and even those might not work. We talked about it. April was such a pleasure. Who knew what the next one would be like. And those treatments, if they work, sometimes make twins or triplets, or even more, which we really didn't want. So we decided to invest in opening more stores instead. After that, the only good times Ben and I had were at work. You know the phrase, “they just drifted apart?” Well, that's actually what happened. At work we could talk rationally, like good partners. Anywhere else, we had nothing to say to each other, or else we fought. When I met Arthur, I realized that I didn't have to settle for that. So I told Ben I wanted a divorce, and after a while he moved out. I don't think he really believed it.
I'm sorry—I've gotten off the point. You asked about my role in the business. I really love this company, and I've put everything into it. It's how I remember my Papa, and it's the most important thing to me. Next to April, that is.
Advisor: What do you think of this offer?
Lillian: Ben's just getting back at me for marrying Arthur. Arthur Ranier, my husband. Like I said, Ben always had this fantasy that we would get back together. He kept calling what we had a “separation,” even after the divorce papers were final. That's why I didn't even tell him Arthur and I were getting married until afterward. We went on a vacation to Aruba and took April, and we got married there. I told Ben when we got back, and he just blew up. He was gone for a week—no word on where he was or anything. When he got back he was very distant; he would only talk about business, period. Then he dropped this bomb at the board meeting.
Advisor: What do you think of the terms of the offer?
Lillian: I suppose it's an O.K. offer, but so what? This business is mine! I've put my whole life into it. I don't want to do anything else. And April wants to run it when she's older. There's great potential here. Why do you think Allied wants to spend $3 million on this? First of all, we have spent the last five years upgrading our equipment. That's why the company is worth so much—we have state-of-the-art machines, and some terrific new locations. The expansion projections for this part of the state are phenomenal.
Business services are predicted to be one of the fastest growth industries. We are locked into some very lucrative long-term contracts. The city of Sacramento alone is negotiating with us right now for a deal that will be worth hundreds of thousands. And Ben had some great ideas for marketing our products in the future. We've talked about service contracts with home offices—did he tell you about that? Kind of a one-stop, in home support service—paper supplies, software, consultation on office setup, labels and stationery, and so on. I wouldn't be surprised if he thinks he can take that idea and do it on his own, or sell himself to Allied on the side. But you wouldn't let that happen, would you?
Advisor: Wait a minute. All I am going to do is make a recommendation to Dr. Worthington and the Court. I can't do any more.
Lillian: O.K., but at least keep April in mind. They're supposed to be looking out for her. This is her business, if you think of the future. It shouldn't be sold out from under her.
Advisor: If Mr. Jacobs wants to sell, could you buy him out?
Lillian: Nice dream. With what? We've got no cash, or anything really besides the business. We're still paying off debt from our new equipment and the new stores. And Ben is the one who has always dealt with the bankers. Nobody would lend me enough to buy his share, and he's bound to want 30 percent of the full Allied offer. I don't see how we could swing it.
Before you go, there is something you should know. Ben was not so hot as a husband, but I still have no complaints about him as a business partner. He works hard. He is amazingly smart about business. Even when we couldn't agree on anything at home, we almost never fought at the office. I'm really sorry he has this idea of splitting up something that works so well. Maybe you can change his mind. Good luck.
INTERVIEW WITH APRIL JACOBS
Advisor: I think I have the basics of the situation. What is your point of view?
April: This is all ridiculous. My parents have been pushing each other's buttons for 20 years. This is just the latest installment.
Advisor: But a decision has to be made on selling the business.
April: I know, but don't take it too seriously. They'll get beyond this and things will get back to normal soon.
Advisor: What solution would you prefer?
April: You have to understand that Mom and Dad are the best business team ever. Mom knows everything about purchasing, accounting, running a store, dealing with the staff. She's an amazing manager. How many operations like ours do you know where the branch offices work so smoothly? It's because she is so great at picking managers and dealing with them day to day. They would do anything for her. And Dad is simply the world's best salesman. He brings in almost all of the business. He knows how to bid jobs, and he knows how to beat the competition.
Advisor: Do you think they could continue that in the future?
April: They have to. I won't let them sell out and split up. And even if Mom could buy out Dad, I doubt if she could find someone to replace him who would have the same trust among our customers.
Advisor: Do you want to run this business yourself someday?
April: If that's what it takes to keep it in the family.
Advisor: What does that mean? Do you want to inherit this company?
April: I can't ask myself that question. Look, I'm only 22. I've been in Redding all my life, including two years of junior college. It's fun to fantasize about owning my own business, but, sure, I'd like it better if I didn't have to sign my life away yet. There are lots of times when I feel I'd like to see what things are like in other places—maybe go away to college and learn about other careers. But if they sell this business to Allied, then Dad goes his way and Mom is left out in the cold. What is she going to do, even with all that money, if she's got no place to work? And if I decide later that I really do want to continue this business, it would be too late. I'm not going to let that happen. If it makes a difference, tell Uncle Max that I would just die if they sell the print shop.
Advisor: But what if this offer is, in fact, a good business opportunity? What if the business begins to lose out to tougher competition? Are you willing to risk seeing your trust assets shrink away?
April: Nobody can tell what's going to happen. I know that my godfather, as the trustee, is supposed to consider only my financial future. As far as I am concerned, the future is next week. My grandfather bought this business for my parents. They worked together in it all of my life. Mom says there's great potential here, and I believe her. Next Monday all three of us are going to be in the office, as usual, running the company. That's what you have to tell Uncle Max to do.
On the eve of a meeting with Dr. Worthington, the family business advisor is unable to make up his mind what to recommend. The advisor is keenly aware that emotional issues which usually follow a divorce may be clouding the positions of the family members.
If Lillian could buy out Ben, she could continue to run in the business, at least until April decides whether she wants to make a career in the business—and Lillian can assess her capabillities. Lillian has indicated that she could not raise the funds for a buyout; but perhaps all of the possible alternatives for financing have not be explored, because of the need to respond in timely fashion to Allied's offer. And April, whatever her motives, has raised a real question: Will the print shops continue to thrive without Ben, who is closest to the customers and brings in most of the business?
A trustee, moreover, is obligated to act in the best interests of the beneficiary of the trust. The offer from Allied Printers is fair on a purely financial basis. The family may never get an equally attractive offer, particularly if the business declines, which Ben seems to think it will because of competition.
How should the advisor assist Dr. Worthington in fulfilling his trustee role? What is the best and most practical solution to the family's dilemma?WHAT THE EXPERTS SAY
A therapist and family business consultant in Philadelphia, who runs seminars for women in family businesses.
The consultant should advise Dr. Worthington to oppose the sale of the family business. Under the present circumstances, the pending sale would not be beneficial for either April or her parents, even if it looks financially attractive.
A sale would establish an apparent physical and emotional distance between Ben and Lillian, but it will not solve their conflicted relationship. With or without the business, they will remain April's parents, and they will have to keep in touch in the future. If the sale goes through, Lillian will become more frustrated, and April may never forgive her father for robbing her of a great option for the future, for which she seems qualified and interested.
According to the interview with Lillian, she played a very protective role in her marriage with Ben. She refers back to his dislike of the restaurant field when they were first married, as a result of which she bought the printing business with funding from her father. She also taught Ben the business and appointed him president “to make him feel better.”
Ben could not accept the news of her remarriage, and reacted in an infantile manner by withdrawing for a week. His situation seems emotionally untenable. He wants out of the business, fast, and the only way he sees of doing it is by jumping at the offer from Allied Printers. In reaching a verbal agreement with a potential buyer, Ben has not even consulted with his partners. The negotiation parallels the secrecy and abandonment that he has experienced as a result of Lillian's remarriage—suggesting retaliation for the hurt. Ben “divorces” the family business and “marries” another business. This looks like the impulsive revenge of a jealous man, not a well thought-out business decision.
There is denial in the way Ben sees his life and behavior—denial of the unhappiness in his marriage; denial of his love for and dependency on Lillian; denial of the divorce, which he continues to call a separation; denial that there is potential in the business; denial of the discrepancy between his own declared reluctance to work for others and the powerless position that he will have as a consultant to Allied Printers.
I believe, though, that the more dangerous denial is his lack of awareness of his own sense of abandonment, hurt, and anger at Lillian's remarriage. He does not realize that his vision and his actions are quite clouded by emotion.
He needs immediate professional help to process his feelings and mourn the loss of his spouse, who may have represented both wife and mother in his life. Further along in this kind of therapy—and in April's “best interest”—the family should meet with the therapist to discuss ways of preserving relations and to create a safe forum for the future exploration of business options that they all can agree on.
JOHN F. HOPKINS
Lawyer and family business consultant with the firm of Hopkins & Carley in San Jose, CA.
I would advise Dr. Worthington to vote for sale of the business. On the basis of the information in the case, it would appear to be far too risky to keep the stock in the hope that, at some future date, April would have the opportunity to take over the business.
Under the Allied Printers offer, the trust has an opportunity to convert its illiquid stock in a family business into $1.2 million in cash, which, after state and federal taxes of about 40 percent, would leave the trust with $720,000. All of the other alternatives do not seem feasible. On the one hand, Ben does not have sufficient shares under California law to force a dissolution of the company or to force Lillian and the trustee to buy him out. To keep the business in the family, moreover, Lillian would have to raise funds from other sources in order to buy him out.
Any effort to force Ben to stay in the business, on the other hand, may push the business into crisis. The two principal operators are now in disagreement about the future of the company. This would certainly make a decline in the business likely as the energies needed to operate it are turned instead toward in-fighting over management issues.
For these reasons, as a lawyer, I would caution Dr. Worthington that to vote against a sale would put the trust assets at risk. But as a family business advisor, I would also urge Dr. Worthington to consider April's welfare beyond just the financial issues.
At this point in her life, the young woman is not certain whether she wants to devote her life to the business. She says that she would commit herself to running the business someday “if that's what it takes to keep it in the family.” I interpret that statement to mean, “if that's what it takes to keep the family together.”
April obviously loves her parents and wants them to be friends. She has a normal desire to keep her parents together, even if it is only in the business context. If that is her true motivation, however, it is not a proper one on which to base the business decision that is facing the family.
Whatever happens in this case will be hard on April. But she should not sacrifice her life to hold her parents together, in the vain hope that they can reconcile their issues. As she herself observed, “They have been pushing each other's buttons for years.”
As a family business consultant, I have to be aware that deep emotional issues have a way of being played out in the business, usually with disastrous results. April's feelings about her parents and her role in their future relationship are important and need attention. But keeping the business over her father's objection is not the way to work out these issues.
Her parents need help in examining their feelings, too. We know that Lillian seems most attached to the business, a fact stated by Lillian and obviously also felt by April, who is concerned that her mother will have nothing to do if the business is sold. Finally, Ben should be helped to examine why he appears to be oblivious to the impact of his desire to sell on Lillian and their daughter.
Unfortunately, the need to respond to the Allied offer soon does not leave enough time for family members to obtain assistance in processing feelings of hurt, anger, and abandonment that may be contributing to their behavior regarding the sale. I would recommend that as a part of the trustee's vote in favor of the sale, he seek a commitment from all three that they will work with a professional to resolve the family issues resulting from the parents' divorce and the sale of the business.
LINDA S. BREUER
President and CEO of Breuer/ Tornado Corp. in Chicago, who recently succeeded her father as head of the manufacturing firm.
It is difficult to avoid getting caught up in the emotional entanglement of this situation. However, I learned three major lessons on my own path to a successful transition in ownership that may be helpful in this case. They were tough lessons, but allowed us to cut through the paralyzing emotional and egotistical negotiation that often drives family succession plans to a screeching halt:
1) In any such negotiation, forget you are family. This is just business.
2) Anyone can be replaced.
3) A change in leadership is often good.
I feel Ben Jacobs was completely out of line when he made a handshake agreement to sell the business and cut himself a deal without involving his business partners and shareholders. Despite his claim of good intentions, Ben has violated the trust of a partnership. His behavior suggests selfishness and greed.
Although Lillian and April seem to believe Ben is critical to the business—and hope things can go on as they always have—it is probably too late for the family to remain in business together. Ben's action indicates there is no turning back. It will never again be business as usual. So the group needs to move forward.
The one-week deadline for responding to the Allied Printers offer does not allow a reasonable amount of time to analyze the opportunities, resolve conflict, and set a foundation for the future. Although it is clear that a change in ownership must occur, it is in the best interests of all not to rush into any decisions. If the business is so competitive, other offers are likely to be made later on. Or Allied can wait.
I am not convinced the cash payouts to Lillian and April are better at this time than stock. I am not convinced that Ben wants to “take it easy” for a few years, since he has expressed some great strategic ideas for future marketing and intends to take a consulting position with Allied and sit on the board. I am not convinced the competition will eat the business alive if the family does not sell. And I am not convinced that saving the business for April is such a good idea, particularly when she has had little exposure to anything else and expresses a desire to “see what other things are like.”
The family business advisor should recommend that Allied's offer be rejected at this time. He should advise Lillian and Ben to have a buy-sell agreement drawn up immediately, which would include a non-compete clause for a negotiated period of time. If this cannot be achieved, and if the trustee's primary concern is with protecting April's assets, the company could be offered on the open market, and the cash from the sale of April's stock retained in trust (forget it is family...it is just business).
But if Lillian wishes to try to keep the business—a solution that would seem to be acceptable to Ben—she should be allowed to explore the possibilities of a buyout of Ben's shares. Perhaps some creative financing would be possible, such as using the money normally paid to Ben in salary to pay off a note over time. Lillian seems willing to stand up to competition and make a go of the business (a change in leadership is often good). She would thus buy time for April to grow up a little more and get experience.
It's a risk. They'll either make or break the business, but at least they'll have a choice. If Ben wants his freedom so badly, let him go (anyone can be replaced). If he is unreasonable, make sure to slap a non-compete into the agreement and reduce the buyout amount significantly by whatever Ben can earn as a consultant. Since he would become a hostile player, his association with Allied would hurt Lillian's efforts.
Unfortunately, it is doubtful that Ben would be willing to accept a long-term note from his ex-wife, or a non-compete clause for that matter. Unless they can execute a satisfactory buy-sell between themselves, they'll eventually have to sell to an outside party.
Case Study author Kelin E. Gersick directs the Family Business Program at the California School of Professional Psychology in Alhambra.