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Spa Crib Sheet Notes

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1. Key provisions a. Identity of sellers & number of shares being sold by each of them a.i. Where more than 1, usually set out in a schedule b. Price b.i. Earn out clause c. Completion Accounts c.i. Agreed mechanism for drawing them up usually in a schedule d. Definition of Completion e. Conditions Precedent e.i. What happens if remain unfulfilled?
f. Right to dividends paid on or after Completion g. Restraint of trade clause g.i. Must be reasonable g.i.1. Reasonable in time g.i.2. Specific about geographical area g.i.3. Specific about a legitimate business interest h. Undertakings i. Notices

2. When is a gap between exchange of contracts & completion desirable or essential?
a. Waiting for HMRC to issue a clearance b. Waiting for a response from OFT about whether it intends to refer the acquisition to the Competition Commission c. Provision or transfer of a regulatory licence for the particular industry d. Waiting for a substantial customer or landlord to provide its consent to an assignment, or confirming that it will not exercise a contractual right to terminate an agreement with the target company on the change of control of the target company e. Waiting for shareholders of a corporate buyer to pass a resolution f. Asset sale f.i. Assignments/novations of contracts which may need landlord's/3 rd party consents g. Share sale g.i. Change of control clauses in leases and contracts which may need to be waived

3. Provisions to protect purchaser in time gap a. Bound to purchase a.i. Between signing contracts and completion, the purchaser and the seller are committed to complete the acquisition on the terms agreed at signing, subject to any conditions precedent a.ii. Purchaser will want to ensure that the business it has agreed to acquire on the terms agreed is not substantially different as a result of the seller knowing the 'deal is done' and therefore neglecting the business in the period between signing and completion b. Conduct of business provisions (not needed if buyer has control of the business) b.i. Target business will be carried on in the normal way between signing and completion so suppliers should be paid on time with no undue aggression towards debtors etc. b.i.1. This ensures that the target does nothing to prejudice the position or prospects of the business b.i.1.a. No lending or borrowing money except in relation to routine matters b.i.1.b. No granting any charge, mortgage or debenture over its assets b.i.1.c. No settling any claim or dispute b.i.1.d. No acquiring or agreeing to acquire any property b.i.1.e. No capital expenditure above a certain level or entering into onerous contracts

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