Article 4 regulates questions of representation and the powers of authority of the buyer together with assurances to be given by the buyer. With regard to the properness of the establishment of the buyer as a company and the authorisation of the buyer to conclude the contract, it is important that such assurances are supported by appropriate documents, as already mentioned above. This involves the formation deed of the buyer, minutes on all shareholders' resolutions, the initial Articles of Association, all statute changes which have been made and current extracts from the trade and commercial registry.
The assurance of the buyer that no public offices are to be involved in the share purchase cannot be made under German law, neither by the seller nor by the buyer. The involvement of public offices in share purchase agreements is based on the legal regulations under German law, e.g. cartel law regulations; such regulations cannot be waived by agreement in any way, neither by the seller nor by the buyer.
The assurances of the buyer that the shares are free of third party rights and that no further intermediary has been involved in respect of the transaction to be executed can also be included in the contract in accordance with German regulations. The comments made on the asset purchase agreement also apply as far as this assurance is concerned.
For further information please contact Dr Erich Michel, Wessing Berenberg-Gossler Zimmermann Lange, Freiherr-Vom-Stein-Strasse 24-26, Frankfurt am Maim 60323, Frankfurt, Germany- Tel: +496 997 1300, Fax: +496 997 130100.
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