Scenario: Founder cuts private side‑deal(s) with the acquirer (retention/non‑compete/consulting/MIP/rollover/IP sale) that siphon value away from the purchase price and bypasses SPV rights.

Jurisdictions: Delaware (OpCo), Offshore (SPV), Switzerland (likely buyer seat)

Street Constraints: tokens not securities; no contractual profit/dividend rights; resource allocations are discretionary via DAO; founders keep operating control; independent co‑sign governance.

Owner / Date / Pass‑Fail: Lukas / 2025‑09‑07 / Passed

Related prior stress‑tests to lean on: S#05 (fair‑value / no‑leakage / aggregation) and S#04 (buyer wants clean cap table: buyer acknowledgments, cap‑snapshot, MFN).

Problem

A founder and buyer agree to pay the founder “off to the side” (e.g., retention package, consulting fees, non‑compete, rollover equity, separate IP license/sale), reducing headline purchase price that flows through the waterfall to the SPV.

If value can leak into side letters, the SPV’s share shrinks even though the business was effectively sold. We need contract terms that capture and sweep those side benefits back into price—or block them without an independent sign‑off.

Legal Vulnerabilities

• No‑leakage covenant absent → founder side payments don’t count as purchase price. (See S#05.)
• Narrow “Sale of Company” definition / no aggregation → IP/licensing/affiliate deals run parallel and avoid the waterfall. (S#05.)
• No MFN / side‑letter disclosure duty → SPV can’t see or match economic terms granted elsewhere. (S#04/S#05.)
• Drag‑along without fairness/process conditions → SPV forced to accept under‑priced exit. (S#05.)
• No independent consent for conflicted transactions → founder can waive protections alone; weak reserved‑matters design. (Governance co‑sign concept from S#01.) S#01
• Information rights weak → SPV can’t review banker books, comp packages, SPA schedules. (S#05.)
• No buyer acknowledgment the SPV is a normal shareholder; buyer frames SPV as an execution risk and demands unwind/waivers.

Regulatory Risk

• Misrepresentation optics if value is routed into undisclosed side payments while tokens trade and resource allocation proceed. (S#05.)
• Securities‑drift optics if comms imply a fixed value link while founder captures off‑price benefits; safest course is pause resource allocations during dispute (S#04/S#05)