The initial seller price was $5 million, but the sale was agreed at a discounted price of about $2.4 million because the sellers wanted a quick sale. It is important that at the time of the share purchase agreement, the target company is not involved in a dispute or participates in an out-of-court settlement of disputes, such as mediation.B. The court calculated the likely damages caused by the error above $2..8M, but the seller`s liability under the G.S.O. limited the damage to the discounted final sale price. The court duly awarded the purchase price and allowed Cardamon to recover the $2.4 million paid for Motorplus. Part of the sale process involves the buyer performing due diligence on the target company or target entity. The buyer will generally look at all aspects of the target, including commercial, financial, legal and environmental issues. Given the nature of the compensation clause and the fact that the benefits to the compensated party are substantial, the use of the clause is limited to specific cases defined in the share purchase agreement, i.e. the impact of which results from the reported events and refers to the taxes covered in the contract, the maximum liability of the purchaser being strictly limited to a certain amount (if the parties have agreed to such an amount) with respect to an event and/or any declared event.
The sale was quickly negotiated and completed in May 2014. The speed of the sale caused some problems, as the buyer did not perform the usual due diligence because the Motorplus management team was considering a buyout and Cardamon wanted to avoid showing his hand too soon. The target company has not employed anyone since the date of the share purchase agreement. Compensation in sales contracts is almost always generated by tax considerations. The bulk of the contracts for the sale of shares and property will include a declaration of self-sustaining tax compensation that the purchaser will have to conclude after the conclusion. It was found that the accounts provided only until August 2013 for receivables and not for accounts received until the agreed date of February 2014. The Court found that this significant undersur supply in the accounts makes the sellers in violation of the warranty. Guarantees in stock or asset purchase contracts are generally broad. They make a series of assertions about property status, labour and labour law, processes, asset status, accounting and operating systems.
In the case of a typical sale and purchase transaction, the buyer performs due diligence. The buyer expects relevant information from the seller. In general, this information is provided first by the provision of due diligence equipment, and then through the guarantees contained in the purchase and sale contract, in conjunction with the disclosure letter drawn up on behalf of the seller, which contains details of the exceptions to the guarantees. For example, if the seller is asked to provide a guarantee in the sales contract that the business or business is not the subject of litigation, the seller will qualify the guarantee by including the details of all relevant litigation in the disclosure letter. The purchaser is not then entitled to claim damages for disputes that are disclosed, but he may have grounds for action with respect to all other disputes that existed but were not fairly disclosed. Where the share purchase agreement contains a compensation clause, the occurrence of a specific event leading to the seller`s liability provides a sufficient basis for the buyer`s claim. These events may include, for example, the decision to assess the amount of the underpaid tax and the obligation to pay the resulting tax, without the purchaser having to prove other circumstances of the event.