Buy-In Contract: Everything You Need to Know
Buy-in contract involves an offer below predicted costs with the goal of increasing the price after the contract or making up for the loss of future contracts.3 min read
A buy-in contract consists of making an offer below predicted costs with the goal of increasing the price after the contract or making up for the loss of future contracts.
Defining a Buy-In
A buy-in occurs when sellers fail to provide securities either on time or at all. As a result, the investor is required to repurchase these shares.
When sellers fail to provide the securities, they receive what is called a buy-in notice. This process happens when the buyer informs the securities exchange officials of the late or failed delivery. The exchange officials then inform the seller of his or her failure to provide.
The stock exchange, such as the NYSE or NASDAQ, backs the investor's repurchase of the shares. The initial seller is usually required to make up any price imbalance.
If the seller fails to respond to the buy-in notice, a broker will purchase the shares and provide them to the original buyer. The initial seller, or the broker's client, must then compensate the broker at the prearranged amount.
A buy-in can also be known as the following:
- The repurchase of an originally owned item equal to or less than the lowest acceptable price
- The purchase of securities or shares of a company
Traditional Buy-Ins Versus Forced Buy-Ins
A forced buy-in is the reverse of a forced purchase or forced insolvency. In a forced buy-in, securities are repurchased for the purpose of replacing an available short position.
A forced buy-in occurs in the following situations:
- If the initial provider of the securities has a recall
- If the broker cannot continue purchasing securities for the short position
In some circumstances, an account owner may not receive warning or notice before a forced buy-in occurs.
Differences Between Buy-Ins and Traditional Securities
Traditional securities include most major securities like stocks and corporate bonds. These securities purchases are usually completed within three business days after the trade date.
Comparatively, trades such as government securities have a transaction time of one business day plus the trade date, while others can settle in a matter of 24 hours including the trade date. These are known as cash trades.
The SEC rule, 15c6-1, provides an exception to the usual settlement timeline. This rule involves contracts that pertain to the cash sale of securities that were marked after 4:30 p.m., and then sold following a definite obligation.
Furthermore, FINRA 2830(m) states that individuals who partake in transactions regarding investment company shares must send payments within three business days after receiving a receipt of a client's order or within one business day after receiving notice of the client's payment, whichever is later.
Defining a Buyout
Typically, a buyout consists of paying the opposing party or individual in a contract the outstanding value of the contract.
A buyout can also pertain to buying out a business partner by purchasing his or her shares of the company. For example, if an individual owns 40 percent of a company and then buys out a partner who owns 30 percent, that individual would now own 70 percent of the company.
Typically, a buyout occurs by changing the conditions of a contract in one of the following ways:
- An end to the contract due to a decision made by both individuals or groups to change the conditions of the initial contract
- Eliminating an individual or group in the contract
- Terminating the contract prior to its designated end date
Under these occurrences, the individual or group buying out the contract would provide the opposing party with either consideration or money.
Information Regarding Buy-Sell Contracts
The following are suggestions that should be followed when developing a buy-sell contract:
- A buy-sell contract should be created prior to actually needing it. The early development of a buy-sell contract reduces the stress involved when it comes to getting both parties to agree to the same terms; however, it is important to note that these contracts may need to be adjusted and changed as a business grows and changes.
- A business valuation clause is an important component of a buy-sell contract. While some individuals seek to add a precise formula for assessing the business, it is best to simply add a clause informing the opposing parties that an expert will determine how to best value the business when the time comes.
If you need help with a buy-in contract, you can post your legal need on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.