Catch-up Clause

April 03, 2023

by a searcher in Barcelona, Spain

Hello, I am negotiating my Shareholders Agreement and some investors have pointed out how important it is that we (the searchers) get a catch up. However I would like to know a bit more of how does that work in practice. In addition, how do you frame it within the Shareholders Agreement?

Thank you

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Reply by a professional
from Boston College in Baltimore, MD, USA

This is one that I'd recommend you raise with your lawyer. This is a tough topic to cover in this forum in sufficient detail and you'd benefit from examples. Lot's to say and read about a catch-up in other context, but your investors are likely pointing to a "catch up" to any prior distributions to equity that is pari passu to your unvested equity. In the context of a traditional search structure, you the searcher will have vested and unvested equity. You will not receive distributions on your unvested equity. A catch-up with regard to your unvested equity would provide that, to the extent a distribution is made and you would have been entitled to a distribution on the unvested equity if such equity had been vested at the time of the distribution, after that equity vests, as to future distributions to any pari passu equity, you "catch-up" first (i.e. you get priority distributions on your now-vested equity that gets you to the same place). Easiest to understand with examples.

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