An Investment Subscription Agreement sets the terms for an investor‚ purchase of securities in a company or fund. This playbook addresses representations, closing conditions, and investor rights under applicable securities laws.
Why This Matters: Balanced assignment rights provide liquidity and flexibility without exposing parties to unknown counterparties. Consent and notification requirements manage credit risk and maintain oversight.
Negotiation strategy
If you're the Company:
Ensure that any assignment includes a requirement for prior written notice and consent, which should not be unreasonably withheld. This protects against unexpected changes in counterparties.
If you're the Investor:
Negotiate for the ability to assign to affiliates or investors with minimal restrictions, while ensuring that the assignee is bound by the original terms of the agreement.
Essential elements
1
Assignment to Affiliates
Allows transfer to affiliates.
2
Consent Requirement
Requires prior written consent.
3
Credit Exposure Protection
Ensures assignee's creditworthiness.
Action framework
ACCEPT
Propose edits when the clause lacks clear consent requirements or fails to address credit risk adequately.
EDIT
Reject clauses that allow unrestricted assignment without consent or credit checks.
ADD
Add language to cover assignment to affiliates with notice and consent, and to protect credit exposure.
PRO TIP
Always verify the creditworthiness of any proposed assignee to mitigate potential risks.
Example clauses
FAVORABLE
Assignment to Affiliates or Investors
"Either party may assign its rights or obligations under this Agreement to any of its affiliates or investors, provided that the assigning party gives prior written notice to the other party and obtains the other party's consent, which shall not be unreasonably withheld. The assigning party shall ensure that the assignee agrees in writing to be bound by the terms and conditions of this Agreement."
NEUTRAL
Protection of Credit Exposure
"In the event of an assignment, the assigning party shall remain liable for any obligations under this Agreement unless the other party agrees in writing to release the assigning party from such obligations. The assigning party shall provide reasonable assurances to the other party regarding the assignee's creditworthiness and ability to perform the obligations under this Agreement."
UNFAVORABLE
Unrestricted Assignment
"Either party may assign its rights or obligations under this Agreement without the need for prior notice or consent from the other party."
Fallbacks
High-Risk Projects
In high-risk projects, ensure that any assignment includes stringent credit checks and possibly a guarantee from the assignee to mitigate potential risks.
Joint Ventures
For joint ventures, consider allowing assignment to joint venture partners with mutual consent to maintain strategic alignment.
International Agreements
In international agreements, additional considerations such as compliance with local laws and currency risks should be addressed in assignment clauses.
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