Investments / investeringar
Anti-embarrassment clause – what is it and why should you have it?
When deciding if you want to sell your shares to a lower price than you would have liked, while finding it hard to assess if the price is in fact the fair market price, there is a chance that you will end up feeling like a fool if the buyer of your shares turns around and sells all shares at a much higher price the day after..
There are mechanisms that you can put into your share purchase agreement ("SPA") to protect you from getting "fooled" and embarrassed because you made a stupid deal.
A so called anti-embarrasment clause.
In today's environment, many businesses are struggling, and financing can be scarce. As a consequence many investors are hesitant to make add-on investments and many shareholders are looking at exits where the price offered per share is lower than the valuation they invested at - or at least lower than any projected valuation from when they invested into the company 1-2 years ago. In case no external funding round has been made recently, the actual value of the company may be hard to identify.
In such a situation there will often be negotiations where one anchor investor offers incumbent shareholders to buy their stake of the company to a relatively low price.
When should you as a shareholder, accept such a "lower" price and sell your shares? Remembering that no external valuation that validates that the offered low price is fair market value for your shares.
Perhaps you would even be selling at a loss. And what happens if you sell at, let's say, 50 USD per share and the next day the buyer of your shares turns around and sells the company with a price per share of 200 USD? Showing that the actual value of your shares was in fact much higher than what you sold them for!
You would feel embarrassed right?
Well, then its time to impose an anti-embarrassment clause into the share purchase agreement. A clause that states that if the buyer sells to a higher price than he bought the shares from you within a certain timeframe, the price you sold to him from should be recalculated so you are compensated.
Example:
You sell to buyer A
PPS: 50 USD
NOSH: 1 000 000 Your stake: 10 % Total purchace price: 50 000 000 USD You get: 500 000 USD
2 weeks later Buyer A sells to Buyer B PPS: 200 USD NOSH: 1 000 000 Buyer A´s stake: 100 %
Total purchase price: 200 000 000 USD
In this case chances are that Buyer A, already when buying from you, had it on his radar that he could turn around and sell the company to Buyer B for a substantially higher price. And maybe Buyer A already had a negotiated deal with Buyer B. If you had kept you 10 % and instead invoked a tag along right where you also sold your part for a PPS of 200 USD you would have gotten 2 000 000 USD instead of the 500 000 USD you got. Embarrassing?
A somewhat typical anti-embarrassment clause could e.g. state that if a buyer sells the company at a substantially higher price within six months of the closing of your transaction, you are entitled to a recalculation of the agreed price per share so that you will receive e.g. 75% of the purchase price for the shares, in the later transaction.
If you had such an anti-embarrassment clause in the agreement with Buyer A, your PPS would be recalculated to 150 USD.
In such a case you are compensated by getting an additional 1 000 000 USD when he sells the shares further (when the second transaction takes place).
Then you are not so embarrased any more - right?
Stockholm, 16 July
Author: Katarina Strandberg
In today's environment, many businesses are struggling, and financing can be scarce. As a consequence many investors are hesitant to make add-on investments and many shareholders are looking at exits where the price offered per share is lower than the valuation they invested at - or at least lower than any projected valuation from when they invested into the company 1-2 years ago. In case no external funding round has been made recently, the actual value of the company may be hard to identify.
In such a situation there will often be negotiations where one anchor investor offers incumbent shareholders to buy their stake of the company to a relatively low price.
When should you as a shareholder, accept such a "lower" price and sell your shares? Remembering that no external valuation that validates that the offered low price is fair market value for your shares.
Perhaps you would even be selling at a loss. And what happens if you sell at, let's say, 50 USD per share and the next day the buyer of your shares turns around and sells the company with a price per share of 200 USD? Showing that the actual value of your shares was in fact much higher than what you sold them for!
You would feel embarrassed right?
Well, then its time to impose an anti-embarrassment clause into the share purchase agreement. A clause that states that if the buyer sells to a higher price than he bought the shares from you within a certain timeframe, the price you sold to him from should be recalculated so you are compensated.
Example:
You sell to buyer A
PPS: 50 USD
NOSH: 1 000 000 Your stake: 10 % Total purchace price: 50 000 000 USD You get: 500 000 USD
2 weeks later Buyer A sells to Buyer B PPS: 200 USD NOSH: 1 000 000 Buyer A´s stake: 100 %
Total purchase price: 200 000 000 USD
In this case chances are that Buyer A, already when buying from you, had it on his radar that he could turn around and sell the company to Buyer B for a substantially higher price. And maybe Buyer A already had a negotiated deal with Buyer B. If you had kept you 10 % and instead invoked a tag along right where you also sold your part for a PPS of 200 USD you would have gotten 2 000 000 USD instead of the 500 000 USD you got. Embarrassing?
A somewhat typical anti-embarrassment clause could e.g. state that if a buyer sells the company at a substantially higher price within six months of the closing of your transaction, you are entitled to a recalculation of the agreed price per share so that you will receive e.g. 75% of the purchase price for the shares, in the later transaction.
If you had such an anti-embarrassment clause in the agreement with Buyer A, your PPS would be recalculated to 150 USD.
In such a case you are compensated by getting an additional 1 000 000 USD when he sells the shares further (when the second transaction takes place).
Then you are not so embarrased any more - right?
Stockholm, 16 July
Author: Katarina Strandberg