Although they are often set out in a separate document annexed to the sales contract, disclosure plans are an integral part of the seller`s insurance and guarantees. In addition, updating disclosure plans has a direct impact on the risk allocation between buyer and seller. As stated in the matrix above, the parties have a wide range of alternatives that they can use to apply the updated disclosure plan as part of a sales contract. Given the impact, practitioners should tailor the disclosure plan update structure to the specific aspects of their transaction. Lists and exceptions are the two categories in which information can be provided in a disclosure plan. This can be done through the implementation of a well-organized system with the agreement`s advocates as moderators and open and frequent communication between all parties. In the absence of such a system, the process becomes chaotic, and the likelihood of something being wrongly omitted from the schedule increases dramatically, as well as the seller`s liability for such omissions. On the other hand, the pages and pages of the disclosure may worry the buyer about the risk he is taking from the seller, or fear that the seller is trying to hide a problem by putting it in large lists. For the seller`s counsel, it is often helpful to tell the person making the disclosure plan that they need to rely more on the side of the one-upmanship, and then decide, after checking the schedule, whether it should be recalled. Whether it`s a share purchase agreement, an asset sale agreement, or a merger agreement, publicity plans are a common practice when it comes to mergers and acquisitions.
As a general rule, the supply of an item to the buyer separately from the advertising plans does not relieve the seller of its obligation to list that item in the lists. A seller has often uploaded all relevant documents and other information about a manifest item to a virtual data room that the buyer has access to. The seller may also have informed the buyer orally of certain disclosure issues during due diligence sessions. However, these elements must continue to be included in advertising plans. An example may be the seller who, in the sales contract, guarantees that the company is not involved in litigation or legal proceedings. If the seller is indeed a defendant in a substantial dispute, this should be included in the disclosure plan.