A clause under which the purchaser subordinates the conclusion of a final agreement to satisfactory due diligence results may be considered a purely alternative condition, as this clause allows the purchaser to decide (alone) whether or not to pursue the agreement. When the parties enter into a share purchase agreement (the SPA), they may make the agreement conditional on the completion of certain conditions (or simply "CPs"). The acquisition of shares of a company on the condition that it obtains external financing (to be able to pay the purchase price) is an example of a condition that is not purely potestrative (because it also depends on the party providing the external financing). Note, however, that in certain circumstances, this condition may nevertheless be considered as one or more (unrealistic) conditions of smallpox if the purchaser does not take the reasonably necessary steps to secure the financing. For example, the seller may have made a specific commitment (for example. B as part of a shareholders` pact) that prevents it from transferring its shares. Other common examples are an important service contract or loan agreement that involves a change in the control clause and requires prior agreement from other contracting parties who, in this case, have the right to terminate the contract. These clauses are standard in loan contracts with professional lenders. A second area of risk is the result of a possible assessment that can be carried out when the objective is capital-intensive.
A buyer may lower the purchase price on a dollar-per-dollar basis if the assessed value of the assets is lower than expected in its valuation models. A seller is better off ordering his own assessment in advance or, at the very least, making sure that the examiner used is qualified and independent. The expert often has two values: the orderly liquidation value (OLV) and fair value (FMV). Fair value is relevant when it comes to an entity in progress. The agreement is executed ("closure") if the conditions are met or if the party in favour of which the clause was drafted or negotiated waives the unfulfilled conditions or conditions. A precedent in a BSG is used to secure the position and minimize the risk of at least some (usually the buyer, sometimes also the seller). It offers the party concerned the opportunity to "develop" the transaction and avoid its execution if one or more events have not occurred or if the conditions have not been met.