O earn-out nos contratos de compra e venda de participação societária: comportamentos maliciosos e mecanismos de repressão

Abstract

This dissertation addresses the complexity of the earn-out clause in mergers and acquisitions (M&A). In M&A negotiations, determining the value of the target company's shares is a critical issue, typically established in the purchase and sale agreement, with payment made at the closing of the transaction. However, when the company is in a growth phase or lacks a solid performance history, reaching a consensus on the share value can be particularly challenging, especially when the seller relies heavily on uncertain future events to justify the valuation. The earn-out clause emerges as a solution to this impasse, allowing the buyer to pay an additional amount if certain future conditions, such as performance targets, are met. This clause protects the buyer from overpaying while also safeguarding the seller from receiving less than anticipated. Nonetheless, its implementation can be complex and may give rise to disputes, particularly when performance metrics are not clearly defined. While effective in aligning the interests of both buyer and seller, the earn-out may lead to conflicts. This dissertation aims to analyze the legal implications that arise when one of the parties attempts to either avoid or compel the occurrence of the condition that triggers the contingent payment in a manner that violates expected standards of conduct.