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No earn-out after resale: one added phrase in the share purchase agreement decides

Writer: Caspar van der Winden
Caspar van der Winden
Oct 20
2 min read

A deferred payment (earn-out type) clause is meant to let a seller share in a later increase in value. But its protection reaches no further than its wording. That is clear from a judgment of the Rotterdam District Court of 14 October 2026 (ECLI:NL:RBROT:2026:14042).

The facts

In December 2022 a shareholder sold her shares in a holding company for EUR 318,000. If shares in the holding or its subsidiary were resold within three years, the seller would share in any increase in value, but only on a sale 'to a customer, supplier or other relation of the Buyer or its shareholders'. Those words had been added only in the final version of the agreement. In July 2025 the subsidiary was sold to a third party that was not a customer, supplier or other relation. The seller claimed, primarily, more than EUR 326,000.

The court's considerations

The court considered that it had not become clear how the addition ended up in the text. But even if that happened without the seller's involvement, she signed the agreement containing those words. From an e-mail, the court inferred that the final version had been reviewed in detail. If the addition was nonetheless not read, that is at the seller's risk. The claims were dismissed.

Practical tips

  • Before signing, compare every new draft with the previous one, preferably with a redline.

  • Be extra careful when communication on the wording runs through a single adviser.

  • Define the trigger of a deferred payment clause (which sale, to whom, within what period) as broadly as you intend.

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This blog provides general information and is not legal advice. For advice on a specific situation, please contact us.

 
 
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