Feature/OPED
Balancing Business Success and Family Succession: Navigating ‘Deemed Offer’ Provisions in Startup Shareholder Agreements
It’s all too easy to think of startup founders as young, vigorous and touched with immortality. But the sector is full of stories of founders dying before their time. Such deaths are always tragic but can be even more so when there isn’t a clear plan in place. Without that plan, conflicts can quickly arise between the family of the deceased, investors, business partners, and other interested parties.
Often, the source of this conflict is the founder being subject to a “deemed offer” or “deemed sale” clause. This clause leads to an automatic forced sale of the deceased’s shares. When a deemed offer is in place, the deceased’s family can lose access to that person’s stake in the business, even if it’s earmarked for them in the will.
Knowing that how can founders safeguard the interests of their businesses and investors while protecting their family legacy? The answer relies on mastering the detail and being diligent in execution.
Understanding deemed offers
A deemed offer provision stipulates that under specific predefined circumstances — generally described as ‘trigger events’ — a shareholder is ‘deemed’ to have offered their shares to the company and/or the remaining shareholders for purchase. In agreements where a deemed offer focuses on a sale to the company and the company fully or partially turns down the offer, the remaining shares are then offered to the other shareholders proportionate to their existing shareholding.
When such a clause is triggered, the venture’s other shareholders are generally given first option on the shares at a pro rata rate in relation to their existing shareholding. In the absence of an agreed-upon price for the shares, the shares would generally be offered at their fair market value.
The offer will then need to be accepted for it to be binding on the other shareholders. If the offer is not accepted, the deemed offer would fall away, meaning that the affected shareholder (or their legacies) would have full title to the shares.
Most shareholder agreements would generally contain a list of events concerning shareholders that would trigger a deemed offer. These events generally include, but are not limited to:
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Death
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Shareholder disability or incapacity
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Insolvency
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Sequestration in the case of natural persons
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Liquidations/business rescue/administration in the case of juristic shareholders
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Criminal convictions, etc.
For the purposes of this article, we’ll focus on death.
From the perspective of co-founders, shareholders, and external investors, deemed offer provisions play a vital role in maintaining an efficient capital structure. This framework ensures that, among other things, significant ownership stakes are held by active contributors who play a pivotal role in the company’s ongoing growth, as opposed to passive stakeholders. By doing so, these provisions prevent the dilution of ownership concentration and safeguard the overall ownership stake of existing shareholders.
In the case of a shareholder’s death, the estate’s executor, often unfamiliar with the business, can disrupt operations and risk business continuity, especially when the deceased held a significant stake in this business. Executors generally prioritise the liquidation of a deceased estate, potentially leading to the sale of the deceased shareholder’s shares (typically to the highest bidder) to external buyers. A more favourable outcome for surviving shareholders and/or the company is having the first option on whether they wish to purchase the deceased’s shareholding or not.
Navigating the crossroads of business and personal estate legacies
While a forced sale of a deceased founder’s shares may intend to secure business interests through a seamless transfer of ownership to surviving key stakeholders, the business’s interests don’t always align with those of the deceased founder’s personal legacy.
However well-intentioned, a forced sale triggered by a founder’s passing can harm the value of the founder’s personal estate. As such, it becomes crucial for founders to equip themselves with robust financial planning knowledge, striking a balance between business pursuits and the preservation of their personal estates.
Maintaining family interests during business succession requires skillfully balancing ongoing business operations and protecting the founder’s estate. It is, therefore, of paramount importance that the terms of shareholder agreements are crafted in a manner that protects both the founder’s interests and the company’s path forward.
To achieve this balance, active and intentional discussions between founders, other stakeholders, and investors must be had.
Negotiating deemed offer provisions: practical considerations
Within these negotiations, there are a number of options that founders can explore when it comes to keeping a deemed offer clause in place while doing right by their families.
One option is to explore partial deemed offers. Here, founders can negotiate for only a portion of their shares to be available for sale when a deemed offer occurs following their death. This measured approach ensures that the founder’s estate retains a stake in the business, allowing it to share in the venture’s future prosperity.
The portion of shares subject to a forced sale can then be negotiated with the remaining stakeholders. From an investor or existing shareholder’s perspective, the real risk in agreeing to such a compromise could be if, post-sale, the deceased estate continues to hold a significant portion of the venture’s shares, complicating voting etc. If a deceased estate holds just a passive or non-controlling interest in the business, it shouldn’t be that much of a concern.
Another option is to explore non-discounted deemed offers. It is quite common in deemed offer clauses for the remaining shareholders and the company has the first option to purchase the deceased’s shares first at a certain discount. While this can feel cold, it may be a necessary incentive for them to take advantage of the offer, simultaneously increasing their ownership and offering liquidity to the departing deceased shareholder’s estate. This approach streamlines the sale process and mitigates the need to involve new third-party buyers.
The discount generally varies from one transaction to another, depending on the influence held by the requesting shareholder (usually an investor and/or majority shareholder) and the bargaining power of other shareholders. While there is no guarantee that an investor would agree to a zero discount on a forced sale, a founding shareholder may attempt to negotiate for one or in the worst case, a reduced discount.
Needless to say, negotiating these options requires a sound understanding of the law and/or corporate transactions in general. As such, it is always recommended that founders seek the help of legal counsel to offer guidance tailored to individual circumstances.
Exploring alternative approaches
From a personal estate planning perspective, there could be other ways in which a founder can plan their affairs such that in the event of their death, there is business continuity and that the surviving shareholders are not prejudiced.
While the below does not constitute legal nor financial advice, here are some possible thoughts that could be unpacked with the help of a qualified finance or legal professional:
Buy-sell agreements
In this type of agreement, co-shareholders can take a life insurance policy to cover the lives of each other. In the unfortunate event of a co-shareholder’s passing, the life insurance pay-out can then facilitate the purchase of the deceased shareholder’s interest by the surviving co-shareholder.
Keyman insurance
Companies can opt for life insurance policies on key shareholders’ lives. In the event of an insured shareholder’s death, the insurance proceeds (generally payable to the company) can then fund the company’s repurchase of the shares held by the deceased shareholder.
The protective shield these products offer, by ensuring seamless transitions and business continuity, aligns well with the heightened responsibilities and higher stakes of more advanced startup phases. Therefore, while the cost factor might be a challenge initially, as startups grow and their financial capacity strengthens, these insurance products become strategic tools that warrant some consideration.
It pays to plan ahead
In the world of startups and visionary founders, balancing business success with family legacies requires careful planning. Deemed offer provisions in shareholder agreements play a vital role in this process. By negotiating thoughtfully and seeking expert advice, founders can chart a path that preserves both their business and personal legacies.
Thando Sibanda is the Deputy Head of Legal at Founders Factory Africa
Feature/OPED
Adeleke’s Leadership: A Dance of Transformation in Osun
By Bamikole Omishore
“Great dancers are not great because of their technique; they are great because of their passion.” – Martha Graham.
In the world of dance, few have mastered the art of movement with the grace and intensity of Martha Graham, whose choreography was marked by a profound understanding of human expression and transformation.
Graham’s dances were not mere performances; they were powerful reflections of the human condition, a tapestry woven with raw emotion, rhythm, and purpose. In many ways, the leadership of Osun State Governor, Ademola Adeleke, mirrors this very essence of dance—dynamic, passionate, and forward-moving.
Governor Adeleke has taken the helm of Osun State with the kind of zeal and vision that echoes the intensity of a choreographed performance, where each step is deliberate, and every movement contributes to a greater narrative of transformation. His approach to governance is not just about policy execution but about creating an environment where the people of Osun are empowered, uplifted, and given the tools to thrive.
In his leadership, one sees a choreography of progress, dedication, and unwavering commitment to the welfare of his people. Considering the precarious state of Osun when he took office on November 27, 2022, Adeleke could not have done otherwise—every step had to be deliberate and tailored for the development of the people.
Much like Martha Graham’s focus on the expression of the individual within a broader context, Governor Adeleke’s leadership shines in its ability to focus on the unique needs of Osun State’s diverse communities, while also aligning them with the collective goal of the state’s development. He has taken the pulse of Osun and, much like a skilled dancer attuned to the rhythm of the music, has set a course for the state that resonates with both empathy and pragmatism.
Governor Adeleke’s impact is tangible, and his passion for the people is infectious. His administration has not shied away from confronting the most pressing issues facing the state, including infrastructural deficits, educational reform, and economic revitalisation. Just as Martha Graham redefined modern dance by introducing new techniques and forms, Governor Adeleke has redefined governance in Osun by introducing innovative policies, modernising systems, and fostering an environment where growth is inevitable.
One of the cornerstones of Adeleke’s governance has been his focus on improving the education sector. Under his leadership, 631 classrooms and offices have been rehabilitated across 125 basic schools, while 323 new classrooms, halls, and laboratories have been constructed in 96 schools.
Additionally, new toilets, boreholes, motorised water wells, and perimeter fences have been installed in several schools. The Governor has also upgraded the Educational Management Information System (EMIS) units in local education authorities to improve data collection and management. Adeleke’s administration has sponsored 200 secondary school teachers and 20 ICT experts to train on remote learning platforms and has trained 1,004 teachers on cooperative learning strategies.
The governor has also initiated the recruitment of 5,000 new teachers to address vacancies in public schools. For tertiary education, Adeleke has invested in infrastructure, including completing a 52-office complex at Osun State University (UNIOSUN), thus becoming the first Governor since 2011 to execute a project at the institution.
He also funded the construction of the first student hostel at the University of Ilesa (UNILESA). He approved the permanent employment of over 230 temporary staff at UNILESA and supported the training of 137 academic staff at the Osun State College of Technology and 1,120 health educators in collaboration with international organisations.
He also revived the indigenous bursary scheme, providing financial support to over 3,100 students and N105,000 to Osun indigenes in law schools across Nigeria.
Governor Adeleke’s approach to healthcare mirrors the precision and care found in Graham’s choreography. Upon taking office, he inherited a healthcare system in disarray. However, he quickly launched the Imole Surgical and Medical Outreach, which provided free medical treatment to over 50,000 residents across Osun, addressing a wide range of conditions from cataracts and hernias to diabetes, hypertension, and malaria.
On a long-term basis, Adeleke’s administration has focused on improving the state’s healthcare infrastructure. This includes the rehabilitation of 345 primary healthcare centres (PHCs), with 200 already upgraded to include 24/7 power and water facilities, while the remaining 145 centres are undergoing renovations.
His administration has also ensured a regular supply of medications to these centres and has partnered with development organisations to provide essential medical equipment. Governor Adeleke’s healthcare policies have expanded health insurance coverage to include informal sector workers and Osun’s senior citizens, ensuring comprehensive healthcare access for all, including persons with disabilities.
Infrastructure development has been another focal point of Adeleke’s leadership. Osun State’s infrastructure, particularly in the road sector, was in dire need of attention when he assumed office. In the past two years, his administration has constructed many roads and has embarked on additional projects to extend the state’s road network.
Notable projects include the Oke-Fia overhead bridge in Osogbo, the first-ever overhead bridge in Ile-Ife, and the Akoda-Baptist-Oke Gada dual carriageway in Ede. These projects are expected to improve traffic flow, ease transportation, and spur economic growth by connecting key areas of the state. Adeleke’s commitment to infrastructure extends beyond urban centres.
Under his leadership, Osun State has rejoined the Rural Access and Mobility Project (RAAMP-3), focusing on improving rural road networks. These improvements are vital for enhancing rural connectivity, facilitating trade, and providing essential access to health and education services in remote areas.
The Governor’s unwavering passion for the people of Osun is also evident in his economic policies, which are focused on stimulating local industries, attracting investment, and reducing unemployment. Like Martha Graham’s ability to tap into the emotional core of her dancers, Adeleke’s governance taps into the heart of Osun’s potential, nurturing the state’s resources, businesses, and talents.
Governor Adeleke is driving sustainable development in Osun State with initiatives that align with the Sustainable Development Goals (SDGs). At the heart of his work is the Senator Isiaka Adetunji Adeleke Estate, a development that balances modern infrastructure with the need for planned, resilient communities. Governor Adeleke’s vision is not just about physical structures—it extends into the human realm. In SDG 4 (Quality Education), he has created the Alternative School for Girls, offering education to those who would otherwise be left behind.
Perhaps most importantly, Governor Adeleke’s leadership is marked by a deep sense of inclusivity and unity. Just as a dance troupe requires each member to work in harmony for the performance to succeed, Adeleke has fostered a sense of collective purpose in Osun.
Governor Ademola Adeleke has brought a new rhythm to Osun State, one driven by passion, innovation, and an unwavering commitment to the welfare of the people. Much like Martha Graham’s transformative choreography, which changed the landscape of modern dance forever, Adeleke’s governance has redefined the landscape of leadership in Osun —one that promises progress, unity, and a brighter future for all its citizens.
Omishore, a proud son of Osun state, writes from Ile-Ife
Feature/OPED
Prepaid Debit Cards Can Enable Companies to Take Advantage of Increased Intra-African Trade
By Amber Thetford
As businesses seek to expand across African borders, cashless payment solutions offer a safer method of transferring money. One offering, prepaid debit cards, provides security while mitigating many infrastructure and regulatory challenges, writes Amber Thetford, the Chief Product Officer for Card Issuing and Processing at Onafriq.
As the African Continental Free Trade Area Agreement (AfCTA) increasingly moves into the operational phase, it is becoming clearer that part of its success lies in ensuring that entrepreneurs and small businesses can effectively trade and receive payments across borders.
As the African Union has noted, the trade area will be the biggest since the World Trade Organization was formed in 1995. Africa’s population is currently 1.2 billion people, a figure that is expected to reach 2.5 billion by 2050.
South Africa took its first step in making AfCTA a reality, when the now-former Minister of Trade, Industry, and Competition, then Ebrahim Patel, launched the implementation of the start of preferential trade this year. The South African Revenue Service also certified two consignments to Ghana and Kenya.
Yet, with trade expected to grow among members from the current between 15% and 18%, a safe way of moving money is required given the risk that cash presents. Some nine-tenths of transactions in sub-Saharan Africa are, based on World Bank information, in cash.
The large amounts of cash involved in trade are also cumbersome and difficult to physically transport between markets. Card payments, part of the digital ecosystem, can enable efficient, secure, and transparent transactions that are essential for facilitating trade.
Card payments can eliminate the need for manual intervention and reconciliation when it comes to banking and bookkeeping. This, the World Bank states, makes them, on average, three times more cost-effective than conventional purchase order costs.
While mobile money payments have greatly improved Africa’s ability to make cross-border payments, they do not meet the full scope of needs of individuals or businesses. As the United Nations points out, there are regulatory bottlenecks, while a lack of interconnectivity among mobile transactions in some countries means that people cannot transfer money across borders. Moreover, limitations of infrastructure, accessibility, and interoperability make it difficult for their users to access the global digital economy. As a result, this type of cross-border payment can be limited.
There are solutions to these dilemmas. Prepaid cards can enable businesses and individuals to transact with global institutions and marketplaces without the need to own a bank account. This option removes a pain point for a business that would otherwise need to accept local alternative payment methods or cash. Navigating challenges like high fees, currency shocks and a lack of access to traditional banks can be simplified through prepaid cards. This makes them a pivotal instrument that enhances Africa’s connection to the global economy.
For example, one of our customers provides payroll solutions for seafarers and cruise ships, which frequently travel to different countries. Once the card is loaded, it is very convenient for a sailor to use it as one would a normal debit card and swipe to pay for purchases or transmit money across borders. The beauty of this option is that whoever is loading the card with money, can be based anywhere in the world, with the same also being true of the person holding the card.
Prepaid cards can also be used to manage expenses because they can be provided to managers of, for example, a bookstore, who can then make independent decisions about business-related purchases, but only up to a certain amount. This has the added advantage of speeding up operations as there are no lengthy delays across the company when it comes to acquiring stock, while it also goes some way towards eliminating fraud as the card has a set limit.
Larger companies with staff who travel extensively can also provide gratuities for their employees, who can then cover incidental expenses without having to dip into their pockets or bring back paperwork to be reimbursed.
A platform that simplifies a user’s ability to transfer money to cards brings the AfCTA dream closer to reality. The versatile power of prepaid cards can be used to promote free trade between countries and unite Africa’s fragmented payment landscape.
Prepaid solutions can aid businesses seeking to operate in other African countries to thrive – making AfCTA’s aim a reality and boosting economic growth for all.
Amber Thetford is the Chief Product Officer for Card Issuing and Processing at Onafriq
Feature/OPED
Examining Seyi Tinubu’s Potential Lagos Governorship Bid
By Kenechukwu Aguolu
The possibility of Seyi Tinubu, the son of the President of Nigeria, President Bola Ahmed Tinubu contesting for the Lagos State governorship in 2027 has become a significant topic of public discourse, raising important questions about the dynamics of political dynasties and democratic values in Nigeria. While his constitutional eligibility to vie for the position under Section 177 of the Nigerian Constitution is undisputed, the discussion brings to light broader issues of political inclusivity, leadership by merit, and the role of family legacy in modern democracy.
The Nigerian Constitution outlines clear qualifications for anyone aspiring to the office of governor. A candidate must be a citizen of Nigeria by birth, at least 35 years old, a member of a political party, and educated to at least the secondary school level or its equivalent. Based on these criteria, Seyi Tinubu, as a citizen by birth and meeting the age and educational requirements, is constitutionally qualified to run for the office, provided he secures the sponsorship of a political party.
Political dynasties are not exclusive to Nigeria; they are a global phenomenon that has influenced governance in many parts of the world. In the United States, for example, the Bush family has held significant political positions, including George H.W. Bush as the 41st President, George W. Bush as the 43rd President and former Governor of Texas, and Jeb Bush as the Governor of Florida. Similarly, the Kennedy family produced John F. Kennedy, the 35th President, and prominent figures like Robert Kennedy, a U.S. Senator and Attorney General, and Ted Kennedy, a long-serving U.S. Senator. The Clinton family also left its mark, with Bill Clinton serving as the 42nd President and Hillary Clinton as a Secretary of State and presidential candidate. These families earned their positions through electoral victories, reinforcing the importance of public trust and the democratic process.
If Seyi Tinubu decides to run, his candidacy will face considerable scrutiny. Questions about whether his aspirations are rooted in personal merit or familial advantage will dominate public discourse. In Nigeria, where perceptions of nepotism and concerns about equitable access to leadership persist, the candidacy of a high-profile figure like Seyi Tinubu will polarize opinions. To succeed in such an environment, he would need to present a compelling policy agenda and demonstrate his capability to govern effectively. His father’s legacy as a former Lagos governor and current president could either bolster his credibility or attract criticism, depending on public sentiment.
Ultimately, the decision rests with the electorate. Lagosians possess the constitutional authority to evaluate candidates based on their merits and to choose leaders who align with their aspirations for the state. Democracy thrives on the principle that leadership is determined by the people, not inherited by default. Seyi Tinubu’s constitutional right to contest for the governorship reflects the democratic ideals enshrined in Nigeria’s laws. However, his candidacy, like that of any other aspirant, must be judged on its merit, the policies he proposes, and the competence he demonstrates. In the end, the will of the people should guide leadership selection, ensuring that governance remains a reflection of collective choice rather than familial legacy.
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