Hey all, could someone explain to me what is the difference between Conditions Subsequent and Reps/warranties?
They both have to do with things that happen after the close of the transaction but I can't understand what exactly is the distinction between that two.
Thanks
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An M&A lawyer will give you a better answer, but -
R&W - things about a business that are true (or claimed to be true), subject to disclosure, generally as of the signing date (and often "brung down" or said to be true as of a closing date).
Conditions Precedent / Conditions Subsequent - things that must be true (that are knowable!) or actions that must be taken prior to signing (but more typically) closing a deal
These are treated differently from an indemnification perspective. R&W breaches are usually subject to survival periods, de minimus thresholds, caps, are insurable.
A breach of a CP / CS isn't really an indemnification matter since these items are usually fully known prior to parties pushing forward with a closing. A breach / lack of delivery would then allow the other party an out to not close a deal. However, I suppose if it turned out the parties agreed they were met, closed a deal, but one wasn't met, it would then be breach of contract (or if egregious, fraud), not be subject to the indemnification provision and all remedies would be available to the wronged party.
Thanks alot! So just to clarify two points.
Point 1: So if a company fulfilled the condition precedent and subsequently breached the condition subsequent, the investor would be able to opt out of the deal? By that I believe they are entitled to redeem their investment in the company?
Point 2: but if the company does not fulfill a warranty, they can only claim damages (but not opt out of the deal)?
Thanks for your time.
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