#15686 - Spa - Mergers and Acquisitions (Private Acquisitions)

SPA

• Drafted by B and so will be slanted in favour of B (e.g. warranties with few limitations, etc).

• S to amend the first draft and make it more balanced.

1. Parties and date

• typically B and S (note that the target company is not typically party to the agreement)

• where more than one seller, details of all sellers normally set out in Schedule to the agreement

• where some of sellers give warranties and others don't, the parties will be described as "S(s), warrantor(s) and B(s)".

• when the parties execute the agreement it will be dated, so creating a binding contractual agreement to buy and sell either Shares of the target company or the assets of Business.

2. Operative provisions

1. Definitions and Interpretation

• Commence with definitions and interpretations clause - purely defines terms used throughout the agreement and imposes no obligations

• Sometimes contains a definition of all matters "disclosed" (more common to put in a separate disclosure letter)

• Interpretation - statutory provisions are a matter of contention

• B will want to provide expressly that reference to statutory provisions includes subsequent amendments.

• this is risky for S as it may take on the risk of liabilities increasing as a result of legislation enacted after completion which has retrospective effect.

2. Conditions precedent

• Normally exchange and completion are simultaneous. However, SPA may be entered into on conditional basis

• If it is conditional it will normally include:

• an obligation to seek fulfilment of a condition

• a longstop date by which the condition must be fulfilled or waived

• time frame within which the acquisition must complete once the condition has been fulfilled

• Example conditions precedent:

1. shareholder approval

2. approval of competition authorities

3. industry specific consents

4. third party consents

3. Agreement to purchase and sell

• SPA will set out what is being bought and sold - normally refers to a detailed schedule confirming shareholdings or assets being acquired.

• SPA will also provide that the parties agree to sell and purchase specified shares or assets.

• Debtor = beneficial to purchase, because on sale S will no longer have an interest in the relationship which may lead them to aggressive tactics which will impact B’s relationship/goodwill.

• Creditor = B will obtain burden of paying creditors as it does not want a bad rep or to damage relationship if S drags feet on paying. Benefit to B as pay less consideration on purchase and pay creditors later - cash flow advantage. WILL NOT WANT TAX OR BANK CREDITORS

4. Consideration

• SPA will stipulate the agreed price, form of consideration, and the timing of payment.

• Where there are multiple Ss, the amount payable to each S will normally be stated in a schedule.

• On an asset sale, the amount of consideration attributable to each separate asset will normally be stated in a schedule.

5. Payment terms

• Normally by a fixed amount of cash on the completion date.

• But, parties are free to agree other payment terms - e.g. that payment is deferred

1. Deferred consideration

• S may allow part of the purchase price to remain outstanding on completion

• receive payments by instalments

• part of the purchase price subject to an adjustment

• retention of part of the purchase price as security for a potential warranty claim.

• NB: tax treatment of deferred consideration is set out at 4.3.5.1

2. Security

• Where part of the purchase price remains outstanding on completion, S may seek security for the outstanding sums in one of the following ways:

1. take a charge over some or all of the assets transferred to B

2. requiring a guarantee of B's obligation to pay Balance of the price from individual shareholders, directors, or parent company of B

3. providing an agreement that title to specified assets is to remain with S until the purchase price is paid in full

4. obliging B to place a specified sum in a joint depositor account (or escrow account) on completion and defining the circumstances when this can be released to the parties.

3. Form

1. cash - where borrowing, ensure that all necessary financial arrangements are in place before B enters into any commitment to pay the purchase price.

2. shares

• S will only accept where they are readily marketable (i.e. shares listed on an investment market)

• agreement should specify how they rank with other shares and what rights S will have to any dividend.

• if B is concerned that the market for its shares may be adversely affected by S disposing of all the consideration shares at once, it may insist on a clause restricting S from disposing of a certain percentage within a specified period after completion.

• where B wishes to issue shares but S does not, this can be achieved by 'vendor placing'

  • i.e. the acquiring company issues shares to S but arranges for Shares to be sold immediately to institutional investors which will yield a specific sum.

3. debt securities (loan notes)

• usually issued on terms that S can demand repayment of all or part at 6m intervals for certain period from completion (e.g. 12 months).

• loan note is usually a straight-forward document recording the grantor's indebtedness to the holder, the interest payable and the terms of the repayment.

• May be secured and will usually be an acceptable form of payment for S only if the viability of B can be assured.

6. Adjustment to purchase price

The purchase price may be fixed or provisions may be included which allow for adjustments to the price (e.g. completion accounts or earn-out agreements).

1. Earn-outs

• Agreement where part of the consideration is determined by reference to the future profitability of the target for a specified period after completion

• Often used where S continues to manage the target company after completion

• Some civil law jurisdictions (France) - the price must be defined or capable of being defined (by a specified calculation data as well as a dispute resolution procedure) otherwise the contract will be void

  • Minimum price on an earn out may be void as a leonine clause (a clause where one party has rights which are disproportionate to its obligations)

2. Completion Accounts

• Confirms valuation of target has not altered significantly since the date of original accounts

• Parties may agree that the price should be adjusted to reflect actual net assets/earnings on completion

• Types of completion accounts:

• full profit and loss account and balance sheet

• balance sheet alone

• simple statement of net assets

• Drawn up by S's accountant - may make more practical sense for B's advisers to deal as it provides for greater financial scrutiny and B will be acquiring the company after completion.

• SPA will contain agreed mechanism for drawing up the completion accounts:

• specified time within which they are compiled after completion

• B and the accountants have the right to review the completion accounts within a specified time period

• in the absence of agreement as to the accounts, a limited period to resolve any disputes

• in the case of a continued dispute, that the matter be referred to an independent firm of accountants acting as experts.

• Also need to agree:

• the valuation method of the target company's assets

• the valuation of the target's debtors

• restrictive covenants to prevent S attempting to improve the results of the accounts by making unnecessary changes.

• preventing 'leakage' from the company - i.e. where S attempts to extract value from the target between the date of the agreed accounts and the completion date (e.g. payment of a dividend)

7. Completion

Should set out requirements B will expect on completion

8. Operative provision to incorporate warranties

• Contractual reassurances/warranties about the target

• Actual warranty statements will appear in Schedule, but the operative provisions will set out basis on which the warranties are given and will usually include some agreed limitations on S's liability.

• SPA will also provide for specific indemnities given in relation to identified problems.

• SPA may also include restrictive covenants restricting the activities of S after completion.

9. Limitations on S's liability under warranty

There will be very little in the original draft and it will be S who must suggest them.

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