The sale and purchase of shares is often subject to compliance with one or more conditions. Why is this useful? What are the consequences of such conditions in terms of transfer of ownership and what are the implications for the timing of the transaction? What is a so-called potestative state? Can you make an acquisition dependent on due diligence results? In the design phase of the purchase and sale contract (SPA), we expect a strengthened review and negotiation around accounting hierarchies. Sellers will try to reduce price reduction opportunities and buyers will try to avoid overvalued assets or undervalued liabilities. When the parties enter into a share purchase agreement (the SPA), they may make the agreement conditional on the completion of certain conditions (or simply “CPs”). The reason is that, on the other hand, the buyer uses the profits without bearing the operating costs of the acquisition cost during this study period. For example, the seller may have made a specific commitment (for example. B as part of a shareholders` pact) that prevents it from transferring its shares. Other common examples are an important service contract or loan agreement that involves a change in the control clause and requires prior agreement from other contracting parties who, in this case, have the right to terminate the contract. These clauses are standard in loan contracts with professional lenders. The resulting equity price is recorded as the amount in the contract and paid by the buyer once completed. This price will no longer be adjusted after closing and the sales contract will not require the creation of final accounts. The acquisition of shares of a company on the condition that it obtains external financing (to be able to pay the purchase price) is an example of a condition that is not purely potestrative (because it also depends on the party providing the external financing).
Note, however, that in certain circumstances, this condition may nevertheless be considered as one or more (unrealistic) conditions of smallpox if the purchaser does not take the reasonably necessary steps to secure the financing.