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Lock Up Agreements: ABI publishes best practice recommendations
In the run-up to an IPO or placing of a company, investors with significant shareholdings frequently enter into an agreement with the investment bank leading the process under which the investor undertakes not to sell further shares for a given period, except under certain circumstances (a Lock Up Agreement). Generally, Lock Up Agreements are subject to waiver by the investment bank in its sole discretion.
There has been a recent trend towards Lock Up Agreements being waived by the bank in whose favour they are given before the stated expiry date. The Association of British Insurers (ABI) has expressed concerns about the recent increased frequency of such waivers and has recently published recommendations relating to Lock Up Agreements.
The ABI recognises the importance for banks and vendors to retain a degree of flexibility in this area, both to minimise potential risks of distortion to trading patterns and to take advantage of situations when it is everybody’s interests for a Lock Up Agreement to be waived. However, the ABI emphasises the significant function that Lock Up Agreements play in the market in regulating the supply of shares and their relevance to price formation. Investors place significant reliance on them.
The ABI has therefore recommended the following best practice approach in relation to Lock Up Agreements:
- Clearly disclosing lock-up periods and the circumstances in which sale prior to the expiry date may take place (and, in particular, the extent to which any period of lock up is “soft” i.e. may be waived by the bank in its sole discretion)
- Though appropriate periods and terms of a Lock Up Agreement depends on the circumstances and is for the vendor and bank to negotiate, in general:
- A “soft” lock up is only appropriate for periods of relatively short duration.
- Initial period of a “hard” lock up (where the investor shareholder may not sell further shares at all or only in very limited, objectively definable circumstances) is suitable only if there is a longer duration of lock-up.
- Banks should only waive a Lock Up Agreement after careful consideration of the overall merits to investors and the need for market integrity. In this context, investors may expect that any such waiver would generally be granted at a time close to the stated expiry date.
Whilst not legally binding, ABI recommendations do influence market practice.
For further information please contact Charles Claisse