Share Purchase Agreement Structure

A shareholder has the prima facie right to transfer his shares whenever and to whomever he wants. However, this freedom can be considerably restricted by the provisions contained in the articles. Two common forms of restriction contained in private company articles are: (a) provisions that the board of directors should have general or limited authority to refuse the registration of transfers to the termination of the transfers; and (b) pre-purchase clauses that are provisions that require a member to first propose his actions to others, such as directors or other members. The ancillary documents and agreements are usually made up of a set of documents listed in a calendar attached to a spa and that the parties must engage in both or before the conclusion to allow the conclusion of a transaction of AM, and in particular: holdbacks can be very useful in bridging the gap between divergent assessments of the objective and allowing these assessments to be protected for a specified period after the close (Holdback period) a buyer`s access to compensation for future closing risks, so that these are guaranteed (usually by the treuhand) and do not depend on subsequent recovery by the seller. It should be noted, however, that if compensation is the exclusive compensation measure, it could serve as a compensation cap by limiting the buyer`s recovery options to what is available in that pool of guaranteed funds. The purchase price provisions should also address several subsidiary issues, including: (i) how the price is met, (ii) when the price is to be paid and (iii) whether it is a fixed amount or if it is a price adjustment mechanism. The share purchase contract is often shortened as a “SPA.” To avoid doubts, please note that the generic term “purchase and sale contract” is sometimes shortened as a SPA. The concept of a sales contract generally includes that some buyers may only be interested in acquiring the exclusive ownership of a company. If the target is made up of several shareholders, some may not want to sell their shares. In this case, the drag-along right may be helpful. It allows majority shareholders to force the minority shareholder to sell – or “pull” its shares.

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