High Court rules consultant is owed US$803,664 after fintech firm tries to avoid paying advisory fee after distressed sale.
A local fintech firm that sold its cryptocurrency exchange to Temasek-backed Amber Group at a fraction of its original valuation has been ordered by the High Court to pay its former consultant US$803,663.83 in advisory fees – a fee it had refused to honour.
The deal had soured amid the 2022 crypto market collapse, with the sale of Sparrow Tech’s exchange changing hands at a heavy discount on its original valuation.
In a judgment issued on Feb 6, Senior Judge Lee Seiu Kin ruled that Sparrow Tech must pay the advisory fee to its former consultant LinkChina Capital, but at roughly half of what the latter had originally invoiced to reflect the sharply lower value at which the deal ultimately closed.
Sparrow Tech operated Sparrow Exchange, a Singapore-based trading platform for cryptocurrency options, including Bitcoin and Ethereum.
In August 2021, it hired LinkChina as its exclusive consultant to find a potential buyer or investors in exchange for a success fee of 3 per cent of the “enterprise value” of any deal that resulted.
The contract also contained a tail clause requiring the fee to be paid even if LinkChina’s engagement was terminated, so long as a deal closed within two years of the termination.
LinkChina subsequently introduced Amber Group, a Temasek-backed digital asset platform, to Sparrow Tech. Initial negotiations valued Sparrow Tech at US$50 million, contingent on the company obtaining a major payment institution licence from the Monetary Authority of Singapore (MAS) by March 2022.
As that condition was not met, the original deal fell apart, and Sparrow Tech gave one month’s notice to LinkChina to terminate their contract in May 2022.
Distressed sale
By then, Sparrow Tech’s position had deteriorated sharply in the wake of the crypto market crash beginning in late 2021.
The company also found itself with about US$17.1 million in crypto assets that were frozen by Vauld, a crypto lending platform that suspended all withdrawals in July 2022. With shareholders unwilling to inject fresh capital, Sparrow Tech faced a severe liquidity crunch.
It was under these circumstances that the company approached Amber Group again to revive deal talks. Also, by this point, MAS had in June 2022 granted Sparrow in-principle approval for the major payment institution licence.
A new share purchase agreement was signed in July 2022 and completed in November 2022 – less than three months after LinkChina’s contract had been terminated.
The final deal came in well below the original US$50 million valuation. The consideration was structured as US$16.9 million minus third-party indebtedness, plus two contingent payments linked to whatever could eventually be recovered from the frozen Vauld assets.
Disputed fees
When LinkChina learned of the completed transaction, it invoiced Sparrow Tech for US$1.6 million, based on a claimed enterprise value of US$54.8 million.
Sparrow Tech refused to pay, arguing that no fee was owed because Sparrow Tech and Amber Group had never expressly agreed on the enterprise value.
Senior Judge Lee rejected the argument, ruling that it could not have been the parties’ intention for the fee to depend on an explicit written agreement between buyer and seller on the enterprise value figure.
Instead, he said that the enterprise value was to be determined objectively from the financial terms of the share purchase agreement and the company’s accounts, by adding Sparrow Tech’s equity value and total debt and subtracting cash.
Senior Judge Lee argued that the purchase consideration under the share purchase agreement was the best measure of equity value, favouring it over theoretical valuation models. “No academic postulation can be better than that situation where parties put their money where their mouths are in an arm’s length transaction.”
Working through the share purchase agreement components – US$16.9 million minus third-party indebtedness of US$21.6 million, plus confirmed Vauld recoveries of US$6.1 million and a maximum contingent payment of US$4 million – the court arrived at an equity value of US$5.4 million.
Adding total debt of US$21.6 million and subtracting cash of US$0.2 million, the enterprise value came to US$26.8 million, yielding a success fee of US$803,663.83. Interest was ordered at 5.33 per cent per annum from the date of the writ, along with costs.
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