Can the Purchaser Rely on the Warranty and Indemnity Clauses in the Share Purchase Agreement?
- By : Wong Mei Ying
- Category : Linkedin Post, Mergers and Acquisitions
In M&A transactions, warranty and indemnity clauses are toolkits for protecting the purchaser’s interest. But what happens if the seller can’t fulfill these obligations due to financial reason? A well-drafted clause is only as effective as the seller’s ability to pay.
If the purchaser is concerned that the seller may not have the financial means to satisfy claims brought under any warranty or indemnity clauses, the purchaser may consider the following:
1. Guarantee from holding company/shareholder
If the seller is a company, the purchaser may request for a guarantee from the seller’s shareholders, which may be a holding company or individuals.
2. Retention in escrow account
The parties may agree for a portion of the purchase price to be retained in an escrow account for an agreed period to satisfy any warranty or indemnity claims that may arise. The amount in the escrow account would be paid to the seller at the end of the agreed period if no claim is made by the purchaser.
3. Deferred payment
The parties may agree for the purchaser to pay the bulk of the purchase price on completion of the share purchase agreement. The purchaser will then pay the remaining part of the purchase price post completion. The purchaser will make the deferred payment to the seller at the end of the agreed period during which the purchaser may claim under the warranty or indemnity clauses.
4. Bank guarantee
The purchaser may request that the seller provide a bank guarantee to guarantee the seller’s performance in the event of warranty or indemnity claims. However, the seller may be reluctant to do so as there is cost involved in providing a bank guarantee.
Whether the seller would agree to any of the above would depend partly on the parties’ bargaining power. The seller may also be concerned that the purchaser put forward claims without merit to try to set off the purchase price against the warranty or indemnity claims, if the SPA allows for setting off.
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This post was first posted on LinkedIn on 21 January 2025.
