Claw-back clause (rarely claw-back reservation)

Bonuses and premiums paid to employees (executives, “key men”) of an institution can be reclaimed in accordance with the contract if it turns out that the commitments made only bring a short-term profit, but a loss for the company over several years. – In the case of a fund, the profit generated is distributed to the investors in its entirety after the fund management has received the contractually agreed remuneration. Accumulation and reinvestment of profits to strengthen the fund’s assets is thus ruled out. – In the case of an issue of shares, the right of the issuer to shift the size of the allocation in favor of certain investors (allows the shares allocated to one class of investors to be reallocated to the other class of investors). The purpose of this is often to broaden the free float in the event of a large issue. A claw-back clause in this sense must be stated unmistakably and distinctly in the issue prospectus. – Obligation to make back-payments to the treasury of abusively claimed tax reliefs. – Reservation by the seller that, in the event of an abnormally high profit by the buyer, he will receive a fair share of that profit. Such reservations are particularly common in the sale of companies, where they are also called anti-embarrassment clauses. – An originator agrees to take back the distressed securities on its own balance sheet in certain cases in the event of a loss in a special purpose entity. – See back-to-originator call, postulate.

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University Professor Dr. Gerhard Merk, Dipl.rer.pol., Dipl.rer.oec.
Professor Dr. Eckehard Krah, Dipl.rer.pol.
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