An essential part of any jointly owned business or asset is the exit plan. The exit plan can cover voluntary and involuntary exits from the business or ownership of the asset. This summary covers involuntary exits that arise from death, disability or critical illness of an owner.
IF in your own name, or that of a company or trust, you hold with other parties an interest in a business or jointly held asset AND on the death, critical illness to or disability of one of the people with whom you are in business or hold the asset you need to provide:
- a structured timetable for; and
- a ready and adequate source of funds to permit both:
- the purchase by you at an agreed value of the deceased, ill or disabled’s interest in the business or jointly held asset; and
- transfer of control in that business or asset,
THEN a Buy Sell Agreement can do this for you.
Without an effective and correctly structured Buy Sell Agreement, there is no guarantee that these 2 critical things will happen and you could end up paying more tax than you expect. A Buy Sell Agreement is an enforceable contract between owners of a business or jointly held asset dealing with:
- the transfer of ownership in and control of that business or jointly held asset; and
- the provision of insurance proceeds funding to permit it to happen.
The agreement works by each party that holds an interest in the business or jointly held asset:
- granting to the other an option on death, critical illness and/or disability to be able to force the transfer at market value of the ownership and control of the business or jointly held asset; and
- taking out a life, critical illness and/or disability insurance policy in respect of the person who represents that party in the ownership of the business or asset.
It is important that the agreement and insurances are put in place in a way that avoids unwanted stamp duty and capital gains tax problems. Our experience and expertise in structuring Buy Sell Agreements ensures that you will not get any unexpected surprises.
Our view is that separate life policies should be taken out by each life insured when putting the Buy Sell Agreement insurances in place. This optimises the management of the tax and other issues that can arise with other forms of policy ownership and changing circumstances over time. Before you finalise the insurances, you should always ask your insurer to set out the proposed insurance arrangements in writing so that your lawyer can check the structure of the insurance against the required form of the Buy Sell Agreement.
You will need to decide on the following things before being able to finalise and sign a Buy Sell Agreement:
- Are the insurance policy proceeds all that an exiting party is to receive for their equity or are they simply a means of helping to fund the exit and any shortfall will have to be separately funded?
- If a shortfall is to be separately funded, what valuation method is going to be used for valuing an equity interest?
- If an existing party does not receive any insurance policy proceeds, do the non exiting parties still need to pay out the interest from their own funds?
- How will insurance policy premiums be shared?
- If the Buy Sell Agreement remained in place for the long term and at some point insurance became impractical, how will an exit be funded and the terms of the agreement changed to deal with that?
If you would like any assistance with your Buy Sell Agreement requirements, please contact Sydney Business Lawyers on 8915 4900 or email@example.com.