If you own shares in a private corporation you should be no stranger to a Unanimous Shareholders’ Agreement(“USA”). The USA document, which outlines how the company should be operated and the rights and responsibilities of the shareholders, is integral in protecting your rights as a stakeholder in the business.
A well-drafted USA should thoughtfully contemplate various “triggering events” and what the shareholders’ intentions are should these events occur. We commonly refer to certain key triggering events as the “4 Ds” – Death, Divorce, Disability and Dispute.
In the case of a family business, to provide certainty to the continuity of the business and reduce potential conflicts, it is important that there is alignment with the terms of the USA and the family’s overall estate planning. For example, it is not uncommon for us to meet with clients and discover that there is a lack of alignment between what a shareholder’s Will states and the terms of the USA – e.g., in terms of who is to receive shares when a shareholder passes. This scenario can create uncertainty and unintended consequences.
It is also important to note that there can be significant benefits in funding your USA with Corporate-Owned Life Insurance (“COLI”). If structured properly, there can be significant benefits to create positive results for the shareholders. As in all documents of this nature, however, there is always a potential for error. The following are five common errors and omissions to avoid when you are drafting your USAs with your professional advisors.
- Lack of Tax Planning
Tax rules change regularly and it can often be expensive to incur additional professional fees to revise your agreement after every change in tax law. It is important that your professional advisors are well-versed in the importance of tax and its applications to life insurance. e.g., understanding if a shareholder’s estate is to be bought-out, have shares redeemed, etc. – as the tax consequences can vary significantly depending on how the USA is structured.
- No Reference to the Capital Dividend Account (“CDA”)
In a previous article, we discussed What’s in Your Capital Dividend Account and Why You Should Care – click here for the link.
The CDA is a critical point for planning when a USA is funded with COLI. As a brief background, the CDA is a notional tax account and is used to pass tax-free funds to shareholders in the form of “capital dividends”.
When drafting your agreement, it is important to include terms specifically addressing the intended treatment and ultimate payment of the CDA balance. If the agreement is “silent” with respect to the corporation’s CDA, there is no legal requirement that the CDA will have to be paid, and no guarantee that you will receive your expected tax benefits.
There have been numerous costly court cases where business partners have litigated what is to be done with the CDA as there was either no USA in place, or the USA was poorly-drafted and inadequately addressed how the CDA was to be used.
- Optional Buyouts
Except in unusual circumstances, the purchase and sale of shares on a shareholder’s death should generally be mandatory.
An optional buyout may seem appealing for surviving shareholders and the company in general. However, a lack of clear direction (when using optional buyout terms) often causes more anxiety than it solves. The future of your business could be put at risk while the disposition of the deceased’s shares is contemplated.
- Inaccurately Defining “Disabled”
In a case where disability buyout insurance is in place, insurance policies are used to determine whether or not a person is “disabled”, or in other words, whether or not they can benefit from the terms of the agreement. Referring to both physical and mental incapacity, and providing a sufficient waiting period to determine the extent of the disability are proactive steps towards drafting an effective USA.
It is also important to ensure that the definition of “disability” as contained in the USA parallels the definition contained in the disability policy itself.
- Wrongly Determining the Ownership of a Policy
Making an operating company the owner and beneficiary of a life insurance policy is not always ideal. Corporate-owned policies can be subject to the corporation’s creditors and life insurance policies are generally not considered “active business assets” for purposes of the Lifetime Capital Gains Exemption (“LCGE”). Steps can be taken to structure COLI optimally for creditor proofing protection and LCGE planning purposes.
Takeaway
The USA is a critical document to provide peace of mind for shareholders and to promote the continuity of one’s business. Without a USA in place, potential conflict and legal battles may arise when a “triggering event” occurs. With proper proactive planning in place, we can mitigate potential challenges and increase the likelihood that the vision of the shareholders may be achieved.
