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Spa Notes

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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 (i) 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. (ii) 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: (i) shareholder approval (ii) approval of competition authorities (iii) industry specific consents (iv) third party consents (iii) 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.

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