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Due diligence

The starting point for a buyer in a Share purchase agreement (or SPA) is ‘caveat emptor’, that is, ‘let the buyer beware’. The buyer will conduct due diligence on the target company to learn as much as possible before entering into the transaction. The buyer can also protect their position using warranties. 

Disclosures

If the seller makes inaccurate, untrue or misleading disclosures, they may face a breach of warranty claims from the buyer. Sellers can reduce the chances of this happening by making adequate disclosures in a disclosure letter. Information that the seller provides in a disclosure letter cannot form the basis of a breach of warranty that the buyer could otherwise bring, as the buyer will be considered to be aware of the disclosed information (assuming it was disclosed adequately).

Common warranties

Below, we consider common warranties and what they mean for a buyer in the context of a share purchase agreement.

The seller

The seller is authorised to do business in all jurisdictions within or outside the United Kingdom.

This warranty confirms that the seller is authorised to do business within or outside the United Kingdom.

The seller has the power and authority required to enter into and perform its obligations under the share purchase agreement.

The seller has the necessary authority to enter into the share purchase agreement and perform its obligations under it (ie the seller must be a shareholder of the target company and afforded powers in relation to those shares by a valid Shareholders’ agreement).

The seller has no interest in a business that is or is likely to become competitive with the target company.

This warranty confirms that the seller has no interest in any business that's in competition with, or likely to become competitive with, the target company. This is protected further in the share purchase agreement through the use of restrictive covenants.

The seller has made full and fair disclosure in the disclosure letter.

The seller has provided all relevant information in the disclosure letter where possible. If a seller fails to disclose a relevant matter in respect of the warranties, they may be sued by the buyer for breach of warranty.  

The share sale

The seller is the sole owner and registered holder of the shares.

This warranty confirms that the seller is the only and true owner of the shares being sold (eg they don’t belong to somebody else beneficially).

The seller is entitled to sell the shares to the buyer.

The seller is entitled to sell the shares to the buyer because they are their only and true owner. 

The shares make up the entire issued and allotted share capital of the target company.

The shares being sold consist entirely of:

  • the issued share capital (ie the amount of nominal (on par) value of shares held by shareholders) and

  • the allotted share capital (ie new shares that have been issued to existing shareholders or third parties)

There is no encumbrance affecting the shares.

An encumbrance means any burden, interest, right or claim that adversely affects the use of, or the ability to transfer, the shares (eg security interests). This warranty confirms that all company shares are free of such encumbrances.

The target company and its solvency

Information given by the seller about the target company is true and complete.

This warranty confirms that information that is given by the seller to the buyer about the target company is true and correct (eg who the directors of the company are and when the company was incorporated). 

The target company is incorporated, validly existing and in good standing.

In order for a share purchase transaction to take place, the target company must be properly incorporated and in good standing. This means that the company must be formally recognised by Companies House. To be ‘in good standing’ means that the company has continued to exist since it was incorporated.

No order has been made or is due to be made for the winding up of the target company.

The target company must not be subject to a winding-up order (ie it must not be in the process of dissolving its business). 

No administrators have been appointed in relation to the target company.

The target company must not be under administration or about to be under administration.

No administrative receiver has been appointed in relation to the target company.

This warranty confirms that no receiver or administrative receiver has been appointed in relation to the target company. An administrative receiver is authorised to take custody of charged assets, run the company’s business and dispose of its assets in the event of insolvency

The target company is not insolvent.

A target company subject to a share purchase agreement cannot be insolvent (ie unable to pay its debts).

No statutory demand has been served upon the target company that has not been paid in full or withdrawn.

A statutory demand is a written demand for the payment of a debt. As long as the target company is solvent (ie able to pay off its debts) a statutory demand should not be served upon it.

The target company is operating in accordance with all relevant laws and regulations.

This warranty confirms that the target company is operating in accordance with all the relevant laws and regulations to which it is subject. 

The target company has paid all due income tax.

The target company should have no outstanding income tax liabilities against it.

The target company does not have any subsidiaries.

This warranty confirms that the target company does not have any subsidiary companies beyond any disclosed and included in the share purchase agreement.

Accounts

The target company’s accounts give a true and fair view of the target company.

The target company’s accounts should give an accurate and truthful and view of the target company’s affairs at the time the share purchase agreement is signed (eg its assets and liabilities).

Since the date of the last accounts provided, the target company has carried out its business in the ordinary and normal course and as a going concern.

Since the date of the last accounts provided, the target company has been carrying on business as per usual and as a going concern (ie it has been functioning without the threat of insolvency and can continue so for the foreseeable future). 

Employment

The target company has not made any offers of employment.

The target company has not employed anyone since the date of the share purchase agreement. 

There are no claims threatened or pending against the target company by any current or former employees.

This warranty confirms that no employee at the target company, whether current or former, has threatened or brought a claim against the target company (eg for unfair dismissal).

Insurance

The target company’s insurance policies are in full force and effect. All premiums payable were paid when due.

This warranty ensures that the target company has effective insurance in place and that any premiums have been paid. 

There are no claims outstanding or pending under any of the target company’s insurance policies.

There should be no claims outstanding or pending under any of the target company’s insurance policies. 

Intellectual property rights

The target company is the sole owner and exclusive user of its intellectual property rights.

The target company is the only and true owner of its intellectual property rights. (IRPs) This means that the target company has exclusive use of these rights (ie no one else can use the intellectual property without the target company’s permission).

There are no claims of infringement existing against the intellectual property rights used by the target company.

This warranty confirms that there are no claims of IPR infringements existing against the target company's intellectual property.

All agreements or understandings relating to the target company’s intellectual property rights are not the subject of any disputes.

This warranty ensures that any agreements or understandings in relation to the target company’s IPRs (ie licensing agreements) are not the subject of any disputes.

The target company owns or is licensed to use all necessary software.

If the target company uses software in the course of its business, it should have the necessary licenses to continue using that software. 

Real property

The properties disclosed are the only land and premises owned, used or occupied for the purposes of the target company’s business.

The seller should ensure that any real property owned, used or occupied by the target company is duly disclosed to the buyer. Real property is land and any permanent structures or fixtures attached to it (eg buildings and trees).

Compliance

The target company’s business has been conducted in accordance with all applicable laws and regulations.

This warranty ensures the target company’s business is carried out in compliance with applicable laws and regulations. This means that the target company confirms that they have not broken any laws or regulations that apply to it (eg laws and regulations relating to employment, environmental and financial matters).

All licences and consents required for the target company to carry on business are in full force and effect.

Any licenses or consents needed for the target company to continue carrying on its business (ie building licences, should be valid and active). This is essential to ensure that the target company can continue to carry out its business operations without any legal or regulatory issues that could disrupt its operations.

Litigation

The target company has not been engaged in any litigation or alternative dispute resolution.

It is important that, at the time of the share purchase agreement, the target company is not a party to any litigation proceedings or engaged in any alternative dispute resolution, such as mediation. This warranty confirms that this is the case.

There is no outstanding order, judgment, award or decision in relation to the target company.

This warranty confirms that there are no outstanding orders or court judgments in relation to the target company.

Tax

The target company has submitted all tax returns and given the relevant tax authorities all required information.

At the time of the share purchase agreement, the target company should have submitted all tax returns to HMRC and submitted all required information associated with those returns. 

All tax returns, information, statements, etc at the time of submission, were correct and accurate.

This warranty ensures that all tax returns and accompanying information were complete and accurate at the time of the share purchase agreement.

The target company has not been involved in any disputes with tax authorities.

The target company should not be involved in any disputes with relevant tax authorities at the time of the share purchase agreement. This warranty confirms that this is the case.

Ask a lawyer if you have any questions or concerns about warranties in your share purchase agreement. For more information on SPAs, read Share purchase agreements.


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