It is essential that the person entering into the option agreement recognize the need to ensure that he or she does not violate certain inheritance tax provisions that could not render the transfer of the shares for the commercial real estate exemption ineligible. It is essential that the ability of permanent shareholders to purchase the deceased`s shares and the ability of the deceased`s personal representatives to sell the shares be formulated as a right and not as an obligation. If one of the parties is required to buy or sell the deceased`s shares, the transfer of the shares would in fact be subject to a binding sales contract and, as such, the estate tax purposes would be treated as a transfer of money, resulting in the loss of an asset relief. BrainChip (BRN) has amended its put option agreement (POA) with LDA Capital by extending the deal further. In these circumstances, the question of whether the retained shareholders have sufficient resources to purchase the deceased`s shares becomes critical. In many cases, an option agreement developed accordingly, supported by an appropriate definition policy, is the solution. It can be created independently or incorporated into a shareholder contract as a separate section. The use of a cross-option can also be extended to partnerships. Historically, some partnership agreements contained provisions requiring ongoing partners to acquire a deceased partner`s share from its beneficiaries and requiring its beneficiaries to sell it to them.
These provisions meant that, after death, there was a binding contract for the sale of its shares and that, therefore, the decongestion of divestment activities would not be applicable. Increasingly, lawyers are replacing such provisions with cross-options that allow, in strong circumstances, the deceased partner`s beneficiaries to make full use of commercial real estate relief. The basis for an inter-option agreement is simple: each shareholder agrees that after his death, his co-shareholders have the opportunity to buy their shares (and in some cases those of his spouse) at market value (a so-called “call” option), and that his personal representatives (in the event of death) have the opportunity to sell his shares (and in some cases those of his spouse) to the current shareholders (a “put” option). BrainChip and LDA agreed to extend the deal after Tech shares fulfilled their original obligations by cashing in more than $10 million.