Goulston & Storrs có bài Trends in M&A Provisions: Compliance with Laws Representations, bàn về cam đoan & bảo đảm (Reps and Warranties) liên quan đến tuân thủ pháp luật. Dưới đây là mấy điểm thú vị.
Buyer-friendly sample
The Company is in compliance, and since ______, 20__ has been in compliance, with all applicable laws, ordinances, codes, rules, requirements and regulations of foreign, federal, state and local governments and all agencies thereof relating to the operation of its business and the maintenance and operation of its properties and assets. No notices have been received by, and no claims have been filed against, the Company alleging a violation of any such laws, ordinances, codes, rules, requirements or regulations, and, to the knowledge of the Shareholders, the Company has not been subject to any adverse inspection, finding, investigation, penalty assessment, audit or other compliance or enforcement action. The Company has not made any bribes, kickback payments or other similar payments of cash or other consideration, including payments to customers or clients or employees of customers or clients for purposes of doing business with such Persons.
Mối quan hệ với các R&W cụ thể
The compliance with laws representation is usually broad and does not focus on any specific aspect of non-compliance or any particular set of laws or regulations. Accordingly, it often covers the same ground as more topic-oriented representations which include legal compliance issues within a narrower context. For example, seller representations regarding environmental issues, operating permits, labor and employment matters, and employee benefits typically include concepts of legal compliance within those areas (e.g., that the seller has complied with all environmental laws, etc.). To avoid confusion, the parties often include a clarifying statement within the compliance with law representation stating that the representation does not address the specific legal compliance areas within the more focused representations. [Fn: This is particularly true if the compliance with laws representation is treated differently for indemnity purposes, whether in terms of its survival period and/or caps and baskets, than the more topic-focused representations.]
(Ngoài ra, vừa có R&W chung này vừa có R&W cụ thể là để chứng minh vi phạm cho dễ.)
Vạch ra hơn là bọc kỹ
Rushna Heneghan, Deputy General Counsel at Charles River Laboratories, says “[w]hen we are looking at an acquisition target, the compliance with laws rep serves two purposes. It allocates responsibility as between buyer and seller for compliance issues, but it will also, hopefully, prompt a seller to raise any such issues or concerns during the disclosure process.” This is helpful because the buyer can then consider the disclosed information in assessing the overall risk profile of the target. “While the rep itself is important,” continues Ms. Heneghan, “I’d much rather know the underlying compliance problems than close the transaction with a strong indemnity claim for breach of the rep.”
Qualifiers
[C]ompliance with laws representations are seen in virtually every M&A deal. So, unlike many other components in an M&A purchase agreement, sellers generally do not argue against including such a representation. Instead, the negotiation between buyer and seller tends to focus on potential limitations to the representation, most notably along the following lines: • Knowledge Qualifiers: Should the representation be qualified by the “knowledge” of one or more seller-related individuals? • Past and Present Compliance: Should the representation cover past as well as present compliance? If so, should past compliance be limited by time (e.g., compliance during the past X years)? • Notices of Investigations: Should “compliance with laws” extend to notices of investigations by government entities or similar parties? • Notices of Violations: Similarly, should “compliance with laws” extend to notices of violations?
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