To encourage the seller to make disclosures against warranties Warranties and indemnification are any form of contractual protection for the buyer. They are used both in the sale of shares and in assets. The representations appear to be very similar to the warranties in a purchase agreement, but there are important differences; a breach of warranty, as explained above, creates a contractual claim, while a breach of representation creates a claim under the right of misrepresentation. Another example could be the guarantee that the target company has not received a notice period for any of the company`s essential contracts and that there is no reason to terminate those contracts. Again, this could be an important question for the buyer, who can evaluate the target company on the basis that its key contracts remain in effect after the purchase. Disclosure plans can take a lot of time and attention to prepare, so it`s important that the seller starts preparing as soon as possible. Often, the seller`s CFO takes care of the preparation in collaboration with the seller`s lawyers. If the closing of the transaction does not occur at the same time as the signing of the purchase agreement, the disclosure plans must be updated at closing. The purchase price and how it is to be paid are at the center of the asset purchase agreement. The consideration is usually fully satisfied in cash after completion, but other forms of consideration could be used. There may be an issue of shares by the buyer or an exchange of assets, but the latter is rarely used in practice.
To ensure that the buyer does not advance the money after completion, the seller must insist that the buyer has the necessary funds through the exchange of contracts or a legally binding obligation of a bank or other party that they will be made available at closing. The buyer wants to know that he will benefit from the bargain. In the event of a problem, the seller must pay a specific compensation to cover possible losses. If there have been significant and unexpected problems between the signing of the purchase contract and the conclusion, the buyer may terminate the agreement. You can also request a reduction in the purchase price. The final scope depends on the size and type of transaction. The Target and the Seller will generally make the following representations and warranties. A compensation aims to place the risk of the resulting liability entirely on the seller. Unlike warranties, the buyer does not have to prove that the value of the business has decreased due to the liability incurred. If the transaction is a share transaction, there are also insurances and guarantees on the equity of the target company. Although the buyer has done its own due diligence, it generally expects the seller to confirm several facts in this section. You should also support these facts throughout the sales process.
Negotiating guarantees and compensation is an important process and can be complicated. Interaction of guarantees, compensation, due diligence and disclosure There are also disadvantages to the sale of assets. .