The Company Disclosure Letter is an essential document in Dutch M&A transactions, typically prepared alongside a share purchase agreement or merger agreement. It serves as the seller's primary tool for making both general and specific disclosures against the warranties given in the main transaction documents. The document must comply with Dutch legal requirements and market practice, particularly regarding standards of fair disclosure and the effect of disclosures on warranty claims. A Company Disclosure Letter typically includes information about corporate matters, financial statements, material contracts, employment issues, litigation, regulatory compliance, and other business-critical aspects. It's particularly important in Dutch transactions as it can affect the buyer's post-completion warranty claims and helps establish what information was known to the buyer at the time of the transaction.
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1. Date and Parties: Identification of the disclosing party (seller) and the recipient party (buyer), including company details and transaction reference
2. Introduction: References to the main agreement (typically SPA) and explains the purpose and effect of the disclosure letter
3. General Disclosures: Information publicly available, including company registry filings, public records, and other generally accessible information
4. Interpretation and Definitions: Explains how the letter should be read, cross-references definitions from the main agreement, and includes any additional definitions
5. Fair Disclosure: Statement regarding the standard of disclosure and what constitutes fair disclosure
6. Warranty Disclosures: Specific disclosures organized to correspond with the warranties in the main agreement, typically following the same numbering
7. Effect of Disclosures: Statements about how the disclosures qualify the warranties and their effect on potential claims
8. Execution: Signature blocks and execution formalities
1. Data Room References: Section referencing a data room index and explaining how data room documents constitute disclosures - include when a virtual data room was used for due diligence
2. Supplemental Disclosures: Section for additional disclosures made after signing but before closing - include in transactions with a split signing and closing
3. Tax Covenant Disclosures: Specific section for tax-related disclosures - include when there is a separate tax covenant in the main agreement
4. Environmental Matters: Detailed environmental disclosures - include for companies in industrial or regulated sectors
5. Regulatory Compliance: Specific regulatory compliance disclosures - include for heavily regulated industries
6. IP/IT Specific Disclosures: Detailed intellectual property and IT systems disclosures - include for technology companies or IP-heavy businesses
1. Schedule 1 - General Disclosures: Detailed list of all general disclosures including public records and filings
2. Schedule 2 - Specific Warranty Disclosures: Detailed disclosures against specific warranties, organized by warranty number
3. Schedule 3 - Material Contracts: List and summaries of all material contracts that constitute disclosures
4. Schedule 4 - Property: Details of all real estate and lease arrangements
5. Schedule 5 - Intellectual Property: List of all IP rights, registrations, and licenses
6. Schedule 6 - Employee Information: Details of key employees, benefits, and employment arrangements
7. Schedule 7 - Litigation: Details of ongoing or threatened litigation and disputes
8. Schedule 8 - Data Room Index: Index of all documents in the data room that constitute disclosures
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