Legal Precedents

List of documents—private M& A—share purchase—unconditional completion Acquisition of [ insert target company name ] List of documents: Acquisition of [ insert target company name ] by [ insert buyer name ] from [ insert seller(s) name(s) ] Definitions Buyer • refers to [ insert buyer name ]; Company • refers to [ insert target company name ]; Seller [ s ] • refers to [ [ insert name of selling corporate entity ] OR [ insert individual sellers’ names ] ] ; [ Subsidiaries • refers to [ insert names of subsidiaries of the target company ]. ] Any other defined expressions shall bear the meanings ascribed to such terms in the share purchase agreement entered into between the Buyer and the Seller [ s ]......

Unless stated otherwise, every item appears on the document list for both the offeror and the offeree. Mentions of the ‘ Code’ denote the City Code on Takeovers and Mergers, and ‘ CA 2006’ means the Companies Act 2006. A. Preliminary documents Index of documents — Offer EE/ OFFEROR Scheme schedule — Offer EE/ OFFEROR Parties list — Offer EE/ OFFEROR Financial adviser’s client letter on confidentiality, etc — Rule 2.1(b) — FINANCIAL ADVISER Due diligence checklist — OFFEROR AND ( IF APPROPRIATE) OFFEREE Application to inspect the offeree’s share register and register of interests, plus other details on the offeree’s share capital, shareholders and option holders, etc — CA 2006, ss 114 and 808; Note 3 on Rule 10.1 — OFFEROR Request for details about share interests — CA 2006, s 793 — OFFEREE/ OFFEROR ...

Guarantee and indemnity—seller obligations—private M& A—asset purchase This Deed is dated [ insert day and month ] 20[ insert year ] Parties [ insert name of guarantor entity ] [ of OR a company incorporated in [ England and Wales ] with registration number [ insert registered number ] whose registered office is at ] [ insert address ] (the Guarantor); and [ insert name of the buyer ] [ of OR a company incorporated in [ England and Wales ] with registration number [ insert registered number ] whose registered office is at ] [ insert address ] (the Buyer). BACKGROUND: The Buyer has agreed to acquire the Business as a going concern pursuant to the terms of the APA. The Guarantor has agreed to guarantee the Seller’s performance of its obligations and liabilities under the APA and to provide the Buyer with an...

Guarantee and indemnity—seller obligations—private M& A—share purchase This Deed is hereby entered into on [ insert day and month ] 20[ insert year ] Parties [ Insert name of guarantor entity ] [ of OR being a company incorporated in [ England and Wales ] under number [ insert registered number ] whose registered office is situated at ] [ insert address ] (the Guarantor); and [ Insert name of the buyer ] [ of OR being a company incorporated in [ England and Wales ] under number [ insert registered number ] whose registered office is situated at ] [ insert address ] (the Buyer). BACKGROUND: The Buyer has agreed to acquire, pursuant to the terms of the SPA, the entire issued share capital of the Company. The Guarantor has agreed to guarantee the performance by the Seller of its...

Confidentiality agreement—private M& A—asset purchase—auction sale This Agreement is dated [ insert day and month ] 20[ insert year ] Parties [ insert selling corporate entity ], a company registered in England and Wales with number [ insert company number ], whose registered office is at [ insert address ] (the Seller) [ insert name of purchasing corporate entity ], a company registered in England and Wales with number [ insert company number ], whose registered office is at [ insert address ] (the Bidder) Each of the Seller and the Bidder is a Party and, together, the Seller and the Bidder are the Parties. background The Parties intend to enter into discussions in relation to the Proposed Acquisition. For the purposes of exploring, discussing, assessing and negotiating the Proposed Acquisition, the Bidder has requested that certain Confidential Information [(and Personal Data)] be...

Information memorandum verification notes—private M& A VERIFICATION NOTES Verification notes (the Notes) relating to the information memorandum (the Information Memorandum) prepared by [ insert name of the seller ] (the Seller), with input from [ insert name of financial adviser ] (the Financial Adviser), in respect of a potential divestment by the Seller of [ insert description of the company or business and assets to be sold, eg ‘the entire issued share capital of XYZ Ltd’ or ‘the business of XYZ Ltd’ ] (the Proposed Transaction). These Notes have been compiled by [ insert details of seller's solicitors ] to assist the Seller’s directors ( Directors), together with other individuals engaged with the Information Memorandum and the Proposed Transaction, in discharging their legal responsibilities and to support accurate, consistent disclosure throughout the document and process......

Confidentiality agreement—private M& A—share purchase—auction sale This Agreement is dated [ insert day and month ] 20[ insert year ] Parties [ Insert selling corporate entity ] incorporated in England and Wales under number [ insert company number ], with its registered office at [ insert address ] (the Seller) [ and ] [ Insert name of purchasing corporate entity ] incorporated in England and Wales under number [ insert company number ], with its registered office at [ insert address ] (the Bidder) [ and ] [ [ Insert target company name ] incorporated in England and Wales under number [ insert company number ], with its registered office at [ insert address ] (the Company), ] Each of the Seller [ , OR and ] the Bidder [ and the Company ] is a Party, and together the Seller [ , OR and ] the...

Heads of terms—private M& A—share purchase—cross-border Strictly private and confidential To: [ Insert seller name ] [ Insert potential seller address ] (the Seller) FAO: [ insert name of relevant contact at the seller ] Date: [ insert date ] Subject to contract Dear [ insert name of relevant contact at the potential seller ], Proposed acquisition of the entire issued share capital of [ insert target company name ] (the Company) from [ insert potential seller name ] (the Seller) 1 Introduction Following our recent conversations, this letter outlines the key terms and conditions on which we, [ insert buyer name ] or another company within our group (the Buyer), intend to purchase all issued shares in the Company (the Sale Shares) from the Seller (the Proposed Acquisition). Each of the Seller and the Buyer is a party and, collectively, they are the parties. The...

Confidentiality agreement—private M& A—share purchase—individual sellers—long form This Agreement is dated [ insert day and month ] 20[ insert year ] Parties The individuals listed in Schedule 1, with their respective names and addresses (together, the Sellers); and [ Insert name of purchasing corporate entity ], incorporated in England and Wales under number [ insert company number ], whose registered office is at [ insert address ] (the Buyer); [ Insert target company name ], incorporated in England and Wales under number [ insert company number ], whose registered office is at [ insert address ] (the Company), Each of the Sellers [ , OR and ] the Buyer [ and the Company ] constitutes a Party and, together, the Sellers [ , OR and ] the Buyer [ and the Company ] are the...

This Partnership Agreement is entered into on [ insert date ] Parties [ insert name of partner ], of [ insert address of partner ] [ insert name of partner ], of [ insert address of partner ] Background The Partners intend to operate [ insert nature of business or profession or trade ] jointly as a partnership, following and being bound by the terms laid out within this agreement......

Auction sale timetable—private M& A Sale of [ insert name of company or business ]: Timetable Seller preparations ( IM – [ insert number ] days): appoint corporate finance and professional advisers; carry out vendor due diligence; identify and contact potential bidders; prepare the information memorandum and marketing presentation; verify disclosures if required; procure signed confidentiality agreements ( Seller/ Seller solicitors/ Seller corporate finance advisers/ Potential bidders/ Potential bidders’ solicitors). First round ( IM and IM + [ insert number ] days): issue the first round process letter with the IM; receive indicative offers outlining price, structure, funding, conditions and regulatory matters ( Seller/ Seller corporate finance advisers/ Potential bidders/ Potential bidders’ solicitors). Second round ( IM + [ insert number ] days): shortlist bidders; circulate second round letter, draft sale and purchase agreement and vendor due...

Precedent: Subscription and shareholders’ agreement—single investor Remove the following definitions in clause 1.1: Completion; Completion Date; Conditions; and Subscription Shares. Insert the following replacement definitions in clause 1.1: First Completion — the fulfilment by each of the Parties of their respective obligations set out or referred to in clauses 3.1 and 3.2; First Completion Date — [ the date of this Agreement OR [ insert date ] ] or such other date as the Parties may agree in writing; First Subscription Conditions — the conditions specified in clause 2.2, and First Subscription Condition means any one of those conditions; First Subscription Shares — the Shares to be subscribed for by the Investor under clause 2.1; Milestone Date — [ insert date ]; Milestones — the milestones to be achieved by the Company prior to Second Completion as set out in...

Insert new articles 45 and 46 in Precedent: Articles of association—private limited company or new articles 70 and 71 in Precedent: Articles of association—public company, and renumber the documents as appropriate: 1 Drag Along 1.1 Where one or more members receives a written offer from a bona fide third party ( Third Party) to acquire all of the Company’s equity share capital not already held by that Third Party ( Third Party Offer), and the holders of at least [75]% of the issued shares accept the Third Party Offer ( Accepting Shareholders), the Accepting Shareholders may give the remaining members ( Other Shareholders) a written notice ( Drag Along Notice) requiring the Other Shareholders to sell to the Third Party all of their shares on the terms and conditions set out in the Drag Along Notice. 1.2 The basis on which the...

Add new definition to clause 1.1 of Precedent: Partnership agreement Garden Leave Denotes any interval in which the Management Committee exercises its rights under Clause 19......

Add a new party to the parties clause in Precedent: Share purchase agreement—pro-seller—corporate seller—conditional—long form Insert the following party: [ Insert name of guarantor entity ], incorporated in [ England and Wales OR [ insert country of incorporation ] ], bearing registered number [ insert company number ], whose registered office is at [ insert address ] (the Guarantor). Replace the ‘ Party’ definition in the parties clause in Precedent: Share purchase agreement—pro-seller—corporate seller—conditional—long form Substitute the definition with the following wording, so that it also refers to the Guarantor in addition to the Seller and the Buyer: each of the Seller, the Buyer and the Guarantor is a Party and, together, the Seller, the Buyer and the Guarantor are the Parties. Add a new paragraph ( D) in the background section in Precedent: Share purchase...

Insert as new clauses 11.13 and 11.14 of Precedent: Asset purchase agreement—pro-buyer—corporate seller—conditional—long form: 11 Warranties 11.13 The Seller recognises that: Following Completion, the Buyer intends to transfer [ all OR some of ] the Assets (the Resale Transaction) to a Buyer’s Group member or a third party (the Resale Buyer); Under the Resale Transaction, the Resale Buyer will rely, among other things, on warranties from the Buyer (the Resale Warranties); and The Resale Warranties will mirror those in Schedule [ 12 OR [ insert number for warranties schedule ] ]. 11.14 The Seller agrees that: If the Buyer makes any Warranty Claim after a Resale Transaction, the Seller shall not challenge it due to the Buyer entering the Resale Transaction or giving the Resale Warranties, nor argue that the measure of damages or relief is affected or reduced as a result; and The Buyer may treat any loss or damage it suffers from a...

Ordinary resolution That [ insert name of the director to be appointed ], having agreed to serve, be appointed as a director of the Company with [ immediate effect OR effect from the end of the meeting OR effect from [ insert date ] ] [ and to hold office until [ the next annual general meeting OR [ insert date or description ] ] in substitution for [ insert name of director ] who [ has retired OR [ has ] resigned as a director [ and employee ] of the Company [ with effect from [ insert date ] ] OR [ insert any other reason for the vacancy arising, eg because the director’s death, disqualification or incompetence/incapacity ] ] ]......

Seller waiver of claims—private M& A—share purchase The Board of Directors [ Insert company name ] [ Insert company address ] [ insert date ] Dear Directors [ Insert company name ] Limited (the Company ) [ I OR We ] , [ [ insert individual’s name ] of [ insert address ] OR [ insert company name ], a company registered in [ England and Wales OR [ insert other country of incorporation ] ] with number [ insert company registration number ] whose registered office is at [......

8 Warranties 8.14 The Seller acknowledges that: following Completion, the Buyer plans to transfer [ all OR some of ] the Sale Shares (the Resale Transaction) to a member of the Buyer’s Group or a third party (the Resale Buyer); under the Resale Transaction, the Resale Buyer will, among other matters, rely on warranties given by the Buyer (the Resale Warranties); and the Resale Warranties will be in the same form as those in Schedule [ 4 OR [ insert number for warranties schedule ] ]. 8.15 The Seller agrees that: if, after a Resale Transaction, the Buyer makes a Warranty Claim, the Seller will not dispute it because the Buyer entered into the Resale Transaction or gave the Resale Warranties, nor argue that the measure of damages or the form of relief is affected or reduced as a result; and the...

Dated [ insert date ] Introduction This legal due diligence questionnaire concerns the intended acquisition by [ insert buyer name ] ( Newco ) of the whole issued share capital of [ insert name of target company ] Limited (the Target ) from [ insert seller name ] (the Seller ) (the Proposed Acquisition ). The questionnaire exists to enable Newco, Newco’s solicitors and its professional advisers involved in the Proposed Acquisition to obtain the information they require to aid the valuation of the Target and the subsidiaries of the Target (the Group and each a Group Company ). We reserve the right to raise further enquiries in relation to both your replies to this questionnaire and generally......