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Put and call options are contractual arrangements. A call option creates a legal right, but not obligation, to buy an underlying asset at a predetermined price (strike price) on or before a specific date (expiration date). A put option is a right to force someone to buy something from you at a pre-agreed price. In the context of corporate transactions, the underlying asset is often shares in a company.
Put and call options are quite common with business sales. This is especially the case where :-
the sale happens in stages rather than all at once.
the acquisition is conditional upon certain events, such as regulatory approvals or financial performance milestones.
the seller is staying involved in the business for a while.
the buyer wants to make sure they can get full ownership later.
a clear exit plan is needed.
Put options provide guaranteed exit routes. Key points include :-
Price determination mechanisms - variants can include fixed price, formula-based calculations or fair market value determined by an independent expert.
Defining how and when option can be exercised - triggers may be time-based, performance targets, deadlocks or the option may apply during set periods.
Pricing mechanisms - critical and often tied to business performance metrics or fair market value, also potentially including discounts/premiums based on circumstances.
Exercise conditions - such as performance targets, regulatory approvals, or funding availability. Include clear verification processes and consequences of failed conditions.
Put and call options are versatile tools used in business sales but also where new investors are sought or for joint ventures. Reasons include :-
For investors - to facilitate a smooth exit for investors by providing a mechanism for selling their shares at a predetermined price and time. Investors may also want the right to acquire additional ownership in stages based on performance milestones, managing risk while maintaining upside potential. Other common uses include underperformance put exit rights linked yo key performance metrics, anti-dilution protection and emergency funding call options on preferential terms.
Joint ventures and partnerships - to manage the potential for a future sale or transfer of ownership interests.
Commercial and strategic reasons can include :-
Flexibility - in structuring deals and allow parties to lock in a price and timing for future transactions.
Risk management - they can be used to mitigate risks associated with market fluctuations or changes in a company's performance.
Tax planning - they can be structured to optimise tax consequences for both the buyer and seller.
Underlying asset - precisely define the shares subject to the option.
Strike price - determine the price at which the shares can be bought or sold.
Expiration date - the date on which the option expires.
Exercise procedure - outline the steps required to exercise the option, including notice periods and payment terms.
Conditions precedent - include any conditions that must be met before the option can be exercised.
Representations and warranties - include relevant representations and warranties about the company and its financial condition.
Put and call options may be included as part of a share sale agreement in an M & A transaction, an Investment Agreement or a Joint Venture Agreement. In other situations, you may need a specific and separate put and call agreement.
We draft, advise on and review put and call options and draft and review pit and call option agreements. Our experience means we know our way around what's needed, which also saves clients time and money. Please do get in contact.
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