No Conflicts; Consents (Seller)
What is the No Conflicts; Consents section? In this section, the Seller provides information regarding its ability to complete the transaction without third-party interference. It is part of the Representations and Warranties of the Seller section.
The Representations and Warranties of Seller portion of the Agreement is used to save the Buyer time and money. Rather than require the Buyer to go through third parties to find certain information, the Seller provides the information and must reimburse the Buyer for any Losses it suffers if the information is false or misleading.
The Middle Ground: The Seller represents that performance of its obligations under the Agreement does not conflict with its organizational documents or any law or Governmental Order. It also represents that no consents are required to transfer the Purchased Assets other than those listed in the Disclosure Schedules and that performance of the Agreement will not result in any Encumbrances, other than Permitted Encumbrances. Finally, it states that no consents, approvals, permits, or Governmental Orders are required from the government, and no notice or filings are required to be provided to the government, to consummate the transaction (other than those required by the Hart-Scott-Rodino Antitrust Improvements Act of 1976, known as the “HSR Act,” if the HSR Act applies to the transaction).
Purpose: These representations indicate there are no legal or governmental roadblocks to completing the deal, which, if true, makes it much more likely that the transaction will be finalized. Furthermore, the Disclosure Schedules that correspond with this section are where the Seller lists out every consent that is required to transfer the Assigned Contracts to the Buyer, and the parties work from that list to try to obtain those consents. Thus, this representation is a significant source of both comfort and information for the Buyer, and it gives the parties an idea of the legwork that will be required to complete the transaction.
Buyer Preference: The Buyer will want the representations regarding Assigned Contracts to cover all such contracts, not just Material Contracts. Furthermore, the Buyer will not want this representation to include any sort of materiality qualifiers. It will also want to know whether performing the Agreement will give any third party the right to terminate or modify existing contracts or permits and, if so, which contracts or permits could be affected.
Seller Preference: The Seller will only want to speak to (and/or disclose) conflicts and consents that have a material impact on the transaction. More specifically, the Seller does not want to be exposed to liability for making a false representation in this section unless the representation relates to its own organizational documents or has a Material Adverse Effect on the transaction or the value of the Purchased Assets. In other words, the Seller will want a basic materiality qualifier at a minimum, but ideally disclosure would only be required if the conflict or consent would have a Material Adverse Effect.
Differences in a Stock Sale Transaction Structure: None.
Organization, Qualification, and Authority of Seller
What is the Organization, Qualification, and Authority of Seller section? In this section, the Seller provides information regarding its legal ability to conduct the Business and enter into the Agreement. It is part of the Representations and Warranties of the Seller section.
The Representations and Warranties of Seller portion of the Agreement is used to save the Buyer time and money. Rather than require the Buyer to go through third parties to find certain information, the Seller provides the information and must reimburse the Buyer for any Losses it suffers if the information is false or misleading.
The Middle Ground: In this collection of clauses, the Seller represents that: (1) it is a validly organized business, (2) it is qualified to do business in the states where it operates and where the Purchased Assets are held, (3) it has the power and authority to enter into the Agreement and abide by its terms, and (4) it has taken or will take the necessary corporate action to perform its obligations under the Agreement.
Purpose: Taken together, these clauses have a significant impact on the Buyer’s level of risk and the Seller’s legal ability to live up to its end of the bargain. The Agreement is typically made between the Buyer’s company and the Seller’s company, and the assets being transferred are assets owned by the Seller’s company. Therefore, whether the Seller can fulfill its obligations under the Agreement hinges on its status as a validly organized entity that has the authority to transfer the assets. When the Seller makes representations to that effect, the risk of those representations being false shifts to the Seller. Furthermore, by representing that it is qualified to do business in the jurisdictions where it operates, the Seller is shielding the Buyer from potential liability and penalties for any unlicensed operations (in jurisdictions where a license is required).
Buyer Preference: The Buyer generally wants these representations to be drafted broadly, without any qualifiers relating to Material Adverse Effect and without limiting the jurisdictions to which the representations apply. However, the Buyer will be asked to make essentially the same representation as part of its representations and warranties, so it should be willing to include the same language used here.
Seller Preference: The Seller will want to limit its qualification representation to jurisdictions where failure to be licensed or qualified will have a Material Adverse Effect. It may also want to limit the qualification representation to a list of jurisdictions provided in the Disclosure Schedules, rather than in all jurisdictions where it operates or where the Purchased Assets are held. To limit the risk posed by third parties, a Seller can seek to include an exception in its authority representation that allows it to get out of the Agreement if equity principles or creditors’ rights laws deem the Agreement to be unenforceable (e.g. because it violates fraudulent conveyance laws).
Differences in a Stock Sale Transaction Structure: None.