#3292 - Spa Crib Sheet - Mergers and Acquisitions (Private Acquisitions)

SPA

1. Key provisions

   1. Identity of sellers & number of shares being sold by each of them

      1. Where more than 1, usually set out in a schedule

   2. Price

      1. Earn out clause

   3. Completion Accounts

      1. Agreed mechanism for drawing them up usually in a schedule

   4. Definition of Completion

   5. Conditions Precedent

      1. What happens if remain unfulfilled?

   6. Right to dividends paid on or after Completion

   7. Restraint of trade clause

      1. Must be reasonable

         1. Reasonable in time

         2. Specific about geographical area

         3. Specific about a legitimate business interest

   8. Undertakings

   9. Notices
      

2. When is a gap between exchange of contracts & completion desirable or essential?

   1. Waiting for HMRC to issue a clearance

   2. Waiting for a response from OFT about whether it intends to refer the acquisition to the Competition Commission

   3. Provision or transfer of a regulatory licence for the particular industry

   4. 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

   5. Waiting for shareholders of a corporate buyer to pass a resolution

   6. Asset sale

      1. Assignments/novations of contracts which may need landlord’s/3^rd party consents

   7. Share sale

      1. Change of control clauses in leases and contracts which may need to be waived
         

3. Provisions to protect purchaser in time gap

   1. Bound to purchase

      1. 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

      2. 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

   2. Conduct of business provisions (not needed if buyer has control of the business)

      1. 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.

         1. This ensures that the target does nothing to prejudice the position or prospects of the business

            1. No lending or borrowing money except in relation to routine matters

            2. No granting any charge, mortgage or debenture over its assets

            3. No settling any claim or dispute

            4. No acquiring or agreeing to acquire any property

            5. No capital expenditure above a certain level or entering into onerous contracts

            6. No hiring or firing any key employees

            7. Restrictions on entering into agreement to dispose of all or part of the business or assets except in relation to routine matters

      2. Purchaser should require some managerial control between signing & completion

         1. Negative undertakings from target

            1. Target will not re-negotiate contracts being assigned or novated to purchaser

         2. Provision of ongoing information about the business to the purchaser, including the right for purchaser to attend target’s board meetings

            1. Gives purchaser additional comfort that the business is not being prejudiced

   3. Repetition of warranties at completion

      1. Gives purchaser warranty protection if anything untoward arises during the period between signing and completion

      2. Agreement should also specify what has been agreed about accepting disclosures against repeated warranties where the buyer is contractually bound to complete the purchase

         1. Common compromise is to accept disclosure but provide that purchaser should retain the right to terminate in the event that something is disclosed which would be a material breach of warranty

            1. If the right to terminate cannot be negotiated, the purchaser would not want disclosure to negate any liability for the breach

   4. Termination rights

      1. Consider the circumstances which should enable the purchaser to terminate the SPA prior to completion

         1. Material breach of warranty in gap

         2. Material adverse change in target business

         3. Loss of specific contracts key to the target business

      2. Purchaser will want these rights as it gives it an exit if an event happens which is severely detrimental to the business in the period between signing and completion

   5. Obligation to try to secure condition

      1. Obligation on target to use best/reasonable endeavours to secure the consent for change of control ASAP or consent of landlord

         1. Best endeavours

            1. Must try all options even if it results in the worst possible circumstance

         2. Reasonable endeavours

            1. Do not have to try all options as long as one is reasonable

      2. Purchaser will want this provision to limit the time it is committed to the acquisition taking place without having full control over the target business

   6. Long Stop Date

      1. If no long stop date is agreed for satisfaction of conditions, both parties will be bound to complete on the original terms agreed if/when the conditions are eventually fulfilled

      2. If market conditions have changed, it may not suit either party to continue with the acquisition on those terms

      3. Time period should also be included within which Completion should occur once any conditions have been satisfied (often 5 Business days)

   7. MAC Clause

      1. General or specific
         

4. Provisions to protect seller in time gap

   1. Bound to purchase

      1. Between signing contracts and completion, the purchaser and the seller are committed to complete the acquisition on the...