Share Purchase Agreement Dutch Law
It is a fairly common event that the buyer and seller wait (too) long before advising you legal counsel on the agreement they want to reach. Often the atmosphere between the seller and the buyer is pleasant and informal, and they tend to forget that the development of a sales contract for the acquisition of a business is a real specialized job. AMS`s lawyer is very experienced throughout the acquisition process, from establishing the NDA (confidentiality agreement, confidentiality statement) to conducting negotiations, to developing and evaluating the acquisition contract. The main difference between the two options is that the buyer cannot in principle invoke a tax guarantee when information relating to one. B infringement were disclosed as part of the tax due diligence procedure. Under Dutch law, the seller is required to provide the buyer with sufficient information, but the buyer is required to carefully verify the tax situation of the target company and the information provided. A full description of the end between the duty to investigate and the duty to provide information does not go within the scope of this contribution, but some concise guidelines may be presented on the basis of the jurisprudence of the Supreme Court of the Netherlands. The buyer can, in principle, refer to the information provided by the seller, but if in doubt, he must raise additional questions. If the seller understands that the buyer does not properly understand the tax situation of the target company, the buyer must be informed.
If this is not the case for key positions, compensation may be claimed or, as a final remedy, the GSO may be cancelled on the basis of false statements. Under the so-called haviltex test introduced by the Supreme Court of the Netherlands, the interpretation of an agreement subject to Dutch law will depend to a large extent on what the parties could reasonably have granted in the applicable circumstances and on what both parties could reasonably have hoped for from each other. Frank Buitenwerf and Roos Jongeneel of Taxand Netherlands examine the main considerations of the tax clauses contained in a share purchase agreement subject to Dutch law. In addition, the existence of an option plan may result in a tax on the salaries of the target company if the option rights of its employees can be exercised at the close.