What corrective measures apply to the buyer if the seller is not acting appropriately under the TSA? A seller may have little incentive to work in accordance with the service levels set out in the TSA and its supporting documents after the closure, unless there is explicitly liquidated damage that can be recovered by the buyer – standard compensation cannot provide adequate motivation. In order to ensure the greatest possible applicability, you should consider recouping a trust fund due to poor performance under the TSA (although this may be difficult to negotiate in the major M-A transaction). It is customary for ASDs to contain arbitration clauses or clauses requiring the parties to take legal action in the event of major continuity of service issues; However, a buyer may not want to invest the time and resources to comply with these traditional dispute resolution options for anything but the most monstrous mistakes. Consider including escalation clauses that allow internal representatives of the service provider and recipient to resolve continuity issues by mutual agreement. Consider whether an improvement in business continuity recovery or disaster plans is needed. 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. Indira Gillingham, senior manager, and Mike Stimpson, senior manager at Deloitte Consulting LLP, provide practical advice on using ASD to achieve a quick and clear separation. An ASD can expedite the negotiation process and financial conclusion by allowing the agreement to be reached without waiting for the buyer to assume responsibility for all critical support services. A Transitional Service Agreement (ASD) offers significant benefits when used wisely, such as. B faster conclusion, smoother transition, lower transition costs, better end-of-life solutions and clean separation.
However, divestitures that distort the TSA can take much longer than expected. Transition service agreements are common when a large company sells one of its activities or certain non-essential assets to a less demanding buyer or to a newly created company in which management is present, but where the back-office infrastructure has not yet been assembled. They can also be used in carve-outs, in which a large company relocates a split to a separate public company and then provides infrastructure services for a defined period. An effective governance structure can help companies quickly assess and resolve ASD issues. It will enable the Director of Integration to make operational decisions consistent with the TSA guidelines. The governance structure is operational at all stages of the TSA – scoop, negotiation and execution – and the right teams should be available to evaluate service level agreements, ASD prices and payments between the two companies. The comments and questions that follow make it better to “do things you need to do yourself,” not “that`s what they need to do to have a successful ASD” – in addition to the fact that all participants should be communicated to each other and that the agreement should be very detailed. The allocation of liability is often based on leverage and the attribution of liability in the main acquisition documents. Whether and to what extent the seller is responsible for the failures of his own third parties should be carefully considered. It is customary for an ASD to waive indirect damages (i.e. consecutive damages, penalties, impairments, etc.) and set individual and aggregate limits for direct damages.