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Investing in shares is a popular investment method. The expectation is that the value of shares will increase over time. However, the reality of share ownership involves complexities beyond mere investment and returns. Owning shares in a firm means getting entangled in its operations, investor rights, and executive decisions.
This complex relationship sometimes leads to disputes over share ownership among different parties. To mitigate such risks, a mechanism called “escrow shares” comes into play.
This blog delves into the concept of escrowed shares, offering a comprehensive understanding of their purpose and function in a business.
What do you mean by escrow shares?
Escrow shares are essentially shares held in a secure account, called an escrow account until certain predefined conditions are met. This setup ensures that these shares remain untouched and cannot be sold prematurely.
The main function of escrowed shares is to offer an extra level of security and confidence to all parties in a financial deal. When shares are held in escrow, it guarantees that the interests of each party are protected and that the specific terms and conditions agreed upon in the transaction are fulfilled before the release of the shares.
This mechanism is particularly valuable in complex financial transactions like:
- Mergers & acquisitions,
- Bankruptcy or company restructuring,
- For securing employee benefits,
Escrow shares effectively protect against the risk of unfulfilled agreements.
How do escrow shares work?
The process of escrow share sale begins when two parties enter into a transaction involving the buying and selling of goods, often including shares as part of a larger financial deal. To ensure fairness and security for both sides, an escrow account is used.
- Terms of agreement: The details of the transaction, including the circumstances under which the shares will be purchased and sold, are initially agreed upon by the buyer and seller.
- Payment into escrow: After the deal has been agreed upon, the buyer transfers the funds into the escrow account. This account is managed by an escrow agent or bank who holds the money until all requirements are satisfied, adding an extra degree of protection.
- Verification and delivery: Upon receiving confirmation of payment, the seller is obligated to transfer the shares to the buyer. The seller must also provide any necessary tracking information, allowing the transaction to be monitored.
- Inspection period: After receiving the shares, the buyer has a predetermined period to verify that the shares meet the agreed-upon conditions.
- Completion: The transaction is finalised when the escrow agency delivers the funds to the seller and the buyer certifies that all requirements have been completed.
Escrow share examples
- In public offerings: In India, a company’s public share issuance is deemed successful only if it achieves more than 90% subscription. Should the subscription fall below this threshold, the funds must be returned to the investors. To facilitate this, the issuing company sets up an escrow account to securely hold the subscription money until the conditions are met.
- Mergers & acquisitions: In these transactions, a portion of shares, like 10 to 15%, might be held in escrow to guard against non-payment by the acquiring company. This ensures the target company retains some leverage until the acquirer fulfils the agreed payment terms. A share escrow agreement sample in this context would detail the specific conditions under which shares are released from escrow, offering a clear framework for both parties.
- Bankruptcy or company restructuring: During such turbulent periods, a company’s shares can be placed into escrow. This arrangement safeguards the shares until the company reorganises or resolves its bankruptcy proceedings, ensuring that shareholders retain some form of equity.
- Securing employee benefits: Shares or stock options granted as part of employee compensation plans are often placed in escrow until a certain vesting period is completed. This incentivizes employees to remain with the company, as they gain access to their shares only after this period.
Advantages & disadvantages
Advantages:
- Risk mitigation: Escrowed shares provide security for both parties in a transaction, ensuring that the agreed-upon conditions are met before shares are released. This reduces the likelihood of disputes and fraud, enhancing trust and transparency.
- Regulatory compliance: By holding shares in escrow, companies can demonstrate adherence to regulatory requirements, protecting minority shareholders’ interests and meeting specific legal conditions.
- Investor confidence: Escrow arrangements signal to investors that key stakeholders are committed to the company’s success, potentially supporting higher valuations and fostering trust in the company’s future.
Disadvantages:
- Illiquidity risk: Shares held in escrow cannot be sold or transferred until certain conditions are fulfilled, which could pose financial strains if investors need to access funds quickly.
- Market risk: While escrow protects transaction terms, it does not shield it from market volatility. Share values can fluctuate during the escrow period, potentially leading to financial losses upon release.
- Counterparty risk: There is always a risk that one party may fail to meet their obligations within the agreed timeframe, which can lead to disputes and complicate the transaction process.
Bottomline
Escrow shares provide a structured, secure mechanism for handling shares in sensitive transactions, balancing protection with potential risks. They are crucial for ensuring fairness and adherence to agreements in complex financial dealings.
FAQs
Escrow refers to a financial arrangement where a third party securely holds and regulates the payment of funds or assets between two parties involved in a transaction. It ensures that the money or assets are only released when all agreed-upon conditions of the transaction are met. This setup helps protect both parties by reducing the risk of fraud or default, ensuring that obligations are fulfilled before any exchange is finalised.
In a merger and acquisition scenario, an escrow account is used to hold a portion of the purchase price. For example, when Company A acquires Company B, Company A might place 10% of the agreed purchase price into escrow. This amount is held until Company B meets specific post-acquisition conditions specified in the agreement. If Company B meets these conditions, the funds are released from escrow to the sellers; if not, the funds may be returned to Company A.
Escrow shares are considered outstanding in the sense that they are included in the total count of a company’s issued shares. However, they are not freely tradable or available to the market until certain conditions are met and they are released from escrow. This means they contribute to the total share count, affecting ownership percentages and voting rights, but do not impact liquidity or market trading until they become unrestricted.
Yes, shares can be put in escrow. This is often done in scenarios like mergers and acquisitions, initial public offerings, or executive compensation plans. Escrowed shares are held by a neutral third party and are released only after specific conditions outlined in an escrow agreement are met. This process ensures that both parties involved in a transaction meet their obligations before the shares change hands, providing security and reducing the risk of disputes.
Shares held in escrow are technically owned by the shareholder or issuing company, but their control is restricted and managed by an independent escrow agent. The escrow agent ensures that the shares are only released and fully controlled by the owner once certain predefined contractual conditions are met. Until then, although the owner has legal title to the shares, they cannot sell or leverage these shares, ensuring compliance with the terms set out in the escrow agreement.