Another area of negotiation concerns the actuarial assumptions to be used to calculate performance commitments. The determination of liabilities (and therefore the adjustment of the purchase price) can vary considerably depending on the actuarial assumptions used. Therefore, the sales contract should contain an agreed framework for the definition of relevant actuarial assumptions. A Transitional Service Agreement (TSA) is an agreement between buyers and sellers, under which the seller concludes his services and know-how with the buyer for a certain period of time, in order to support and allow the buyer his new assets, infrastructure, systems, etc. The development of a Transitional Services Agreement (ASD) is a common step in the merger and acquisition process. Although ASDs are routine, they remain complicated, tedious and are not always well accepted by a buyer or seller. When business teams negotiate the terms and conditions of the agreement, promises of transition services are often made without knowing what can and cannot be provided. Often, these issues are only revealed when the agreement is signed and the parties come to a conclusion. This may result in delayed closures in some countries, which may result in additional costs for the parties. Carveouts are among the most complex transactions. This is particularly the case when it comes to the sale of an integrated industry in the rest of the parent company`s business. In such transactions, the seller may be required to continue to provide the buyer with assistance for critical services after closing. This support is formalized by a Transitional Service Agreement (TSA) and includes one of the documents signed at the time of conclusion (in addition to share and/or asset sales contracts).
From the buyer`s point of view, ensuring that an ASD is structured as efficiently as it balances business continuity and ensures support and reliability, while ensuring fair service costs, is a key factor in successful deals. Here are some of the most important considerations in structuring an ASD: reverse ASDs arise when services initially provided in-house by the seller must now be provided by the buyer (for the seller), since they were performed by the business entity that was transferred to the buyer. The same considerations that apply to ASD also apply to reverse ASDs. Buyers often neglect the reverse TSA and are not prepared for what the seller may also require from the buyer`s services because of the carveout. From the buyer`s point of view, the sales contract would ideally limit the obligation of replication only to the extent prescribed by law, with the margin of appreciation for un mandated services left to the purchaser. If this cannot be negotiated, an alternative is to limit the obligation of replication to the extent set by the buyer, as defined by the buyer. If this is not an acceptable alternative, the agreement should at least give the parties some flexibility to accept changes to service offerings (in all cases subject to applicable law).