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Cross Border Share Purchase Agreement

Legal structures for cross-border mergers Legal mergers – Bases A foreign company may merge directly into a Swiss company (merger by absorption) or merge with a Swiss company into a new Swiss company (merger by combination), provided that the foreign company`s jurisdiction allows such a merger and that the merger complies with the respective conditions of the foreign jurisdiction. This is the case where foreign law recognizes a transaction in which the foreign company is dissolved without liquidation proceedings and all the assets and liabilities of the foreign company are transferred to the Swiss company uno actu by legal act. While this must be verified in some cases, Austria, Belgium, France, Italy, Liechtenstein, Luxembourg, Portugal, Romania and Spain, the US states of Delaware and North Carolina, the British Virgin Islands, the Bahamas, Bermuda and Guernsey, for example, recognize such a cross-border merger and transfer of assets and liabilities to Switzerland. If a direct transfer is not possible, a transfer by a country recognized for cross-border mergers by both the responsibility of the dissolution company and the absorbing company may be a solution (for example. B merger or redomiciation to Liechtenstein and from there to a Swiss company). Out-of-revenues are generally made up of additional conditional payments that can be made after the completion of certain milestones related to future delivery and that flow at a given time. Earn-Outs reduce the acquisition risk for a buyer and offer the seller a better price if he achieves The goals of Earn-Out. Earn-outs can be financial (e.g.B. achieve future revenue targets) or non-financial (z.B.key objective customers are maintained after the transaction) and can help manage differences of opinion on the value of the objective, if there are uncertainties about its future prospects, whether it is a start-up with limited financial results, but has potential for growth , or where the seller will continue to run the business and where the buyer wants to motivate the seller`s future performance.

There are risks associated with misrepresentation of achievements or simply inconsistent accounting and evaluation methods; Therefore, disbursement reserves should be carefully developed and should include very specific milestones, a clear legislative period, a clear formula or method for determining salary, a method of guaranteeing payment (for example. B fiduciary or guarantee) and merit-specific closing pacts. Therefore, a salary can be considered as an additional payment for the achievement of agreed objectives after closing. Preconditions or closing conditions are provisions that must be agreed upon by the parties before the acquisition can be completed.