- Transfer of all assets and liabilities of the target company,
- Any prior shareholder or board approvals to be obtained for share transfer by seller,
- A right of first refusal may be conferred in favour of other shareholders of the company,
- Articles of association or shareholders’ agreement may set restrictions to the free movement of quotas/shares,
- Prior Antitrust Authorities (UOKiK) notification or approval may be required,
- Polish State enjoys the right of first refusal of shares of companies owning agricultural land having the surface above 5 ha. The State has 1 month to respond. If the Polish State considers that the contractual price is not a market price for the shares then it may demand that the share price which the State will have to pay will be set by a court. The risk for the Seller is therefore significant because the price may be set at a lower level than previously agreed with the Buyer.
Usually detailed in order to identify the risks and draft relevant SPA clauses.
Specificities linked to the share transfer agreement
- The SPA needs to be carefully tailored in order to include appropriate representations, warranties and indemnities (in particular regarding labour, tax, social security and environmental matters, among others) and collateral,
- No mandatory legal requirements as to the content of the SPA,
- The SPA has to be declared to the Polish tax authorities by the Buyer within 14 days upon closing,
- The SPA is subsequently registered with the registry court although the transfer of ownership of shares takes place already upon the SPA signature. It is possible to agree that it takes place upon the price payment,
- Obligation to report ultimate beneficiary owner of shareholders,
- The Management Board Members need to indicate their address for correspondence within the territory of the EU (if they reside outside of the EU they are obliged to appoint a representative).