Share Purchase Agreement Deutschland
With the exception of certain measures provided for by German conversion law, there is generally no automatic transfer of shares, a company or an asset under the law. Otherwise, the seller is obliged to disclose, at the latest before signing, all information that is reasonably essential for a buyer. If the seller does not do so intentionally, the sales contract is contested by the buyer up to ten years after it is signed. In Germany, the land transfer tax (RETT) applies to certain real estate transactions in Germany. If immovable property (including buildings) is transferred as an asset (separately or as part of a business transfer) or if at least 95% of the shares in a property are transferred to a purchaser, RETT is in principle payable on this transaction. Depending on the Land where the property is located, the RETT rate is between 3.5 and 6.5 per cent applicable to the fair value of the property (the fair value must be determined according to the specific rules of German tax legislation). It is the practice of the market that RETT is carried by the buyer. The Federal Ministry for Economic Affairs and Energy (Federal Ministry for Economic Affairs and Energy) may examine and veto a transaction wherein a non-European or non-European free trade association (EFTA) acquires (directly or indirectly) 25% or more of the voting rights of a German legal person. The same applies to a buyer established in the EU or EFTA, but who holds 25% of the buyer`s voting rights (or more). The purpose of this examination is to determine whether a transaction constitutes a threat to public policy or public security in Germany. Since Germany takes a generally liberal approach to foreign investment, the ministry generally does not oppose a transaction. However, this does not apply to transactions in the defense and aerospace industries, which are subject to stricter regulation. As a rule, the duration of the due diligence of a German company includes social affairs (including company history and chain of title), financing contracts, commercial contracts, employment, pensions, real estate, intellectual property and public law (permits, regulations, environment, subsidies).
Beyond the maximum amounts of liability, the sales contract usually includes additional limitations of the seller`s liability. Are there, in particular, assets or liabilities related to the acquisition or disposal of an undertaking which cannot be excluded from the transaction by an agreement between the parties? Is it generally necessary to obtain consents or make declarations to ensure the transfer of assets or liabilities in the time of a business transfer? Break fee agreements are often concluded in the omening phase between the seller and the buyer, especially in exclusivity agreements or letters of intent (LOIs). These pre-signature break fees can be agreed in favor of both the seller and the buyer….