Terms of conclusion of a delegation contract The conclusion of a transfer agreement does not require a prior decision by the shareholders or partners of the ceding company; Shareholders or associates should not be informed of the transfer until the next general meeting or annex to the annual accounts and reports. Purchasing assets allows buyers to divide the purchase price between the assets to reflect their market value. This increases depreciation deductions that result in future tax savings. In theory, it is necessary for the purchaser to retain the entire transaction or a stand-alone part of a business (“activity”), including all assets and liabilities, in order to characterize an asset transfer as a “business transfer” or “transfer of commercial enterprises.” Therefore, if the transferor transfers only certain assets (for example. B real estate, vehicles, etc.), if the liabilities and liabilities arising from or related to such assets are retained, the transaction is generally not considered a “business transfer” but a simple transfer of assets. Under a traditional asset agreement under Swiss law, the transfer of an agreement generally requires the agreement of all parties. However, there are exceptions to this requirement, particularly where the agreement in question contains a language that provides for a transfer without consent. In addition, the transfer of a contract can be perfected on the basis of the third party`s approval body. If the third party is informed of the transfer, a lack of objection, especially with regard to other information (for example. B payment of the next tranche on the account indicated in the transfer communication), is considered consent. As explained above, the provisions of NTCO and NTCC relating to the sale of businesses and businesses support the idea that it is not mandatory to transfer assets and liabilities for a business transfer. However, we will simply see how the Court of Appeal will interpret and assess the real situation that will occur after the new laws come into force.
The main drawback of an asset acquisition, as opposed to a share purchase agreement, is that each item must be transferred in accordance with its correct rules and made against third parties (for example. B by consent and authorization). This is especially true for customer contracts, as a third party may view the transaction as an opportunity to renegotiate their contract. This could delay the agreement and increase transaction costs. Transfer of a business Some experts argue that the obligation of third-party consent can only be ignored if an industry is transferred in whole or in part (unlike one or more individual assets). They argue that there is no reason not to obtain third-party agreement, unless the transfer involves a “transaction” that involves a relatively large number of assets. This request is also debatable. However, as part of securitization of leasing or credit card receivables, both of which involve a large number of agreements and possibly other assets (e.g.
B motor vehicles), the requirement is met, since the terms “business” and “business unit” are widely interpreted in this context. Third-consent to a transfer of agreements as part of the transfer of asset rules into law Unfortunately, the law itself is no more detailed on whether a transfer of agreements through a transfer of assets under the law requires third party approval.