The Sale Of Shares In Private Company Agreement is a crucial document used in mergers and acquisitions involving Dutch private companies (BVs). It is the primary transaction document when acquiring or selling shares in a private company under Dutch law, requiring careful consideration of local legal requirements, including mandatory notarial involvement for share transfers. The agreement typically follows extensive due diligence and often builds upon terms agreed in a letter of intent or memorandum of understanding. It must comply with Dutch corporate law requirements, particularly Book 2 of the Dutch Civil Code, and includes comprehensive provisions covering everything from purchase price mechanisms to warranties and indemnities. The document is especially important as it must address specific Dutch legal concepts such as works council rights and requirements for board resolutions.
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1. Parties: Identification of the Seller(s), Purchaser(s) and the Company
2. Background: Context of the transaction and current ownership structure
3. Definitions and Interpretation: Defined terms and rules of interpretation for the agreement
4. Sale and Purchase: Core transaction terms including shares being sold and purchase price
5. Conditions Precedent: Conditions that must be satisfied before completion can occur
6. Pre-Completion Obligations: Parties' obligations between signing and completion, including conduct of business requirements
7. Completion: Mechanics of completion, including timing, location, and actions required
8. Warranties: Seller's warranties regarding the shares, company, and business
9. Limitations on Liability: Limitations on warranty claims and general liability caps
10. Tax Covenants: Tax-related warranties and indemnities
11. Confidentiality: Obligations regarding transaction confidentiality and announcements
12. Notices: Process and requirements for formal notices under the agreement
13. General Provisions: Standard boilerplate provisions including governing law and jurisdiction
1. Deferred Consideration: Required if part of the purchase price is to be paid later or is contingent on future events
2. Employee Matters: Include if there are specific arrangements regarding key employees or management
3. Non-Competition: Include if sellers are to be restricted from competing post-completion
4. Security for Claims: Include if any security (e.g., escrow) is required for warranty claims
5. Intellectual Property: Required if IP assets are material to the transaction
6. Real Estate: Include if company owns significant real estate assets
7. Bank Financing: Required if purchase is partially funded through bank financing
8. Works Council Provisions: Include if works council approval or consultation is required
9. Earn-out Provisions: Include if purchase price includes performance-based payments
1. Details of the Company: Corporate information, share capital structure, and subsidiaries
2. Warranties: Detailed warranties regarding the company and its business
3. Properties: Details of owned and leased real estate
4. Intellectual Property Rights: List of IP rights owned or licensed by the company
5. Material Contracts: Summary of key commercial contracts
6. Employee Information: Details of employees, benefits, and pension arrangements
7. Completion Requirements: Detailed list of completion deliverables
8. Data Room Index: Index of due diligence materials provided
9. Disclosed Information: Information disclosed against the warranties
10. Form of Resignation Letters: Template resignation letters for outgoing directors
11. Form of Powers of Attorney: Template powers of attorney for completion actions
12. Tax Deed: Detailed tax indemnity provisions and mechanisms
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