Header - S#09 / Founder Side-Deals with Buyer · Owner - Lukas · Date - 2025-09-07 · Version - v1 · Pass-Fail - Pending

Problem statement - Founder cuts private side-deals with the acquirer (retention, consulting, non-compete, MIP, rollover, IP or license) that siphon value away from headline purchase price and bypass the SPV waterfall. We need terms that capture or block side benefits without breaking Street’s non-security posture.

Legal vulnerabilities

• No-leakage covenant absent so founder side payments do not count as purchase price.
• Narrow Sale of Company definition and no aggregation so IP or affiliate deals run parallel and avoid the waterfall.
• No MFN and no side-letter disclosure duty so the SPV cannot see or match off-sheet economics.
• Drag-along without fairness or process gates forces acceptance of an under-priced exit.
• No independent consent for conflicted transactions and weak reserved matters enable unilateral waivers.
• Information rights weak so banker books, comp packages, and SPA schedules are not reviewable.
• No buyer acknowledgment that SPV is a normal shareholder invites unwind or waiver conditions.

Regulatory risks

• Misrepresentation optics if value is routed into undisclosed side payments while tokens trade and resource allocations continue.
• Securities-drift optics if comms imply a fixed value link while founder captures off-price benefits - safest course is to pause during dispute.

Market precedents

• PE or M&A uses no-leakage and aggregation to stop side-payment diversion, with fairness opinions, market checks, and collars protecting minorities. Buyers want clean cap tables and squeeze entities lacking MFN, acknowledgments, and cap-snapshot.

Proposed mitigations

• No-leakage plus sweep-back - any founder or insider compensation, non-compete, consulting, MIP, rollover benefit or similar counts as purchase price unless independently approved, with undisclosed benefits owed back.
• Broad Sale-of-Company plus aggregation - capture stock, asset, merger, IP or licensing and aggregate all related transactions and consideration items over 12 to 24 months.
• Fairness and process gates - drag-along conditioned on independent fairness opinion and, where conflicted, majority-of-minority approval.
• MFN plus disclosure pack - MFN on economic and information terms, founder side-letter disclosure, and buyer acknowledgment that SPV is one normal shareholder with no duty to engage tokenholders.