Updated on: Mar 31st, 2021
7 min read
A share purchase agreement is a legal contract between two parties: a seller and a buyer. They may be referred to as the vendor and purchaser in the contract. The contract is proof that the sale and the terms of it were mutually agreed upon.
The agreement contains all the terms and conditions that are finalised when it comes to the sale and purchase of the shares of the company. The following are listed in a share purchase agreement:
Before the finalisation of the agreement, a letter of intent will be formed. The buyer must perform due diligence to ensure that the purchase agreement and the letter of intent have the same terms. The seller must pay close attention to the sale and purchase section and the warranties and representations section.
The terms of sale and purchase should be the same as the letter of intent. Any discrepancies can result from buyer due diligence and need to be negotiated before the share purchase agreement is complete.
The warranties and representations need to be checked to make sure that there are no false statements. If this takes place and is discovered later, there could be legal action and recourse. There might be some purchase price adjustment that the seller has to reimburse in case of any misrepresentations.
When a corporation or individual purchases or sells shares in another corporation or business, a share purchase agreement must be entered. For instance, in a partnership with two partners, if one partner quits the business, the other partner can acquire the shares by using a share purchase agreement.
There is no one-size-fits-all when it comes to the drafting of a Share Purchase Agreement (SPA). Therefore, despite the number of agreements executed over some time, there is no standard agreement format. The following table illustrates the essential features of a classic textbook SPA:
|Parties to the agreement||The parties generally comprise the seller and the buyer.|
The exception being that sometimes the parties are companies that are incorporated only for executing the SPA. In these cases, the substantive entities’ principles need to be added as covenanters or guarantors to ensure commitment to the contract.
|Recitals||The transaction facts must be spelt out in the recitals, and the relationships must be identified and laid down. The objective of the transaction and the role of the parties must also be stated.|
|Definitions and Interpretations||This is important as definitions provide a context and meaning to certain words and phrases used in the agreement.|
|Consideration and Sale of Shares||This section provides an exhaustive structure of payment needs|
The deposit to be given at the time of execution
The sum that is payable on closing (pricing formula determined on a case to case basis)
The sum held in escrow to be set off against indemnities and breaches of warranties and representations
The amount payable in case any security is registered against any company
If the payment is made in tranches, the details of the trigger for the payments should be spelt out.
|Conditions Precedent||This clause needs to be exhaustive, providing for all authorisations, permissions and permits necessary (internal and external) and the person responsible for obtaining each of these.|
A clause that provides a right to waive any condition is also included to provide flexibility.
|Closing||It is prudent to include a closing memorandum listing the actions that will occur on the closing day, including the board resolutions to be passed.|
|Conditions Subsequent||This clause is rare. However, there are some permits and obligations which are residuary in the conditions subsequent. Protection must be offered to the buyer in case any of the conditions subsequent are breached.|
|Covenants by the parties||Covenants provide comfort to both parties. The purchaser requires them from the seller with regard to the |
management of the company between signing and closing.
|Vendor’s Representations and Warranties||This clause details the seller’s standing, market reputation, rights over the shares, capital structure of the company, list of directors, and the number of shares owned by the seller. It should also provide information on compliance with laws and any threatened litigation or dispute.|
|Buyers’ Representations and Warranties||All of the buyer’s rights, ability to pay the compensation and enter into subsequent agreements are included here. If the buyer is a corporate, then the corporate status is also highlighted.|
|Obligations pre and post-closing||This is similar to the representations and warranties clause, but it is included to protect the interests of the parties.|
|Confidentiality||This is the standard state of terms of the agreement It is important when confidential information has been exchanged and when the parties are listed companies. The validity of the clause is 18 months to 2 years.|
|Indemnification||This clause is highly negotiated. This clause also provides for the process of reimbursement of claims and often the most scrutinised clause. Particular attention must be paid to ensure that the buyer is adequately covered in cases of issues relating to the company before the transaction but emerge post-closing.|
|Notice||This clause is overlooked but is important. The location and how the notice must be dispatched and if the parties are ready for the electronic notices must be specified.|
|Force Majeure||This is a standard clause but can be strengthened by adding a clause about fluctuating market conditions, including the sudden financial crisis, pandemic conditions, etc.|
|Dispute Resolution and Arbitration||The Supreme Court has ruled that when both the parties are in India, the arbitration will be a domestic arbitration under the Arbitration and Conciliation Act.|
|Jurisdiction & General Clauses||The courts in the city of the registered office of the vendor will have jurisdiction. The emphasis must be on the assignment clauses and the relationship clauses that specify the relationship between the parties, which is not construed otherwise.|
The SPA depends on the transaction, the laws governing the transaction, and the parties to the transaction.
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