Who should be parties to the agreement?
I occasionally come across the following oversight in shareholders’ agreements and joint venture agreements. Scenario 1 The cover page and signing page of the agreement state that the parties to the agreement are Party A and Party B only. However, the recital states Party A, Party B and the company …
Defined terms in agreements
When drafting or reviewing an agreement, it is important to check the defined terms carefully. I have seen a sale and purchase agreement (“SPA”) for a M&A transaction which defined the term “Company” twice. It was first defined in the definition section in clause 1 to refer to the company …
Grit
“…doing one thing better and better might be more satisfying that staying an amateur at many different things.” “…greatness is doable. Greatness is many, many individual feats, and each of them is doable.” The above are some of my favourite quotes from the book “Grit: The Power of Passion and …
IPO: Managing responsibilities within the company
An initial public offering (“IPO”) is a major corporate exercise which requires commitment from all parties involved. To ensure the IPO proceeds smoothly, a company seeking for listing may consider: 1. Identify the relevant persons within the company who are responsible for providing information relating to legal, secretarial, financial, accounting …
M&A: Seller’s representations and warranties
Some factors to consider when drafting seller’s representations and warranties for a M&A transaction in a sale and purchase agreement: whether the target company is in a heavily regulated sector such as insurance and financial services the value or consideration for the transaction whether the seller has made any representations …
M&A: Categorising vendor’s representations and warranties
One of the most negotiated points in a M&A transaction is the buyer’s remedies for breaches of vendor’s representations and warranties (“Vendor’s WarrantiesV”) in a sale and purchase agreement (“SPA”). The various representations and warranties given by the vendor, if breached, may affect the transaction in varying degree. It may …
IPO: Consent for disclosure of material contracts
The Prospectus Guidelines have been amended recently with the amendments to take effect from 1 January 2021. The existing paragraph 1.08(g) of Part III: Procedures for Registration has been amended to clarify that certified true copies of all material contracts, regardless whether the contracts are in the corporation’s ordinary course …
Related party transaction: What is “interest”?
For those who have the experience of decoding the definition of “related party transaction” in the Listing Requirements, the term may seem like pieces of jigsaw puzzle to be put together. Under the Main Market Listing Requirements (“MMLR”) and ACE Market Listing Requirements (“AMLR”), “related party transaction” means a transaction …
M&A: More than just business
The days leading up to the signing of an M&A SPA are usually intense, with negotiations and amendments at the eleventh hour. Working around the clock is almost a given. Even when a vendor and purchaser think they have reached an understanding, it may not be the same understanding. Our …
M&A: Retention of Key Personnel
A buyer who acquires a company may want to ensure that the key personnel of the company will continue to provide their expertise to the company post-acquisition. Typically, the sale and purchase agreement (“SPA”) would provide for the vendor to deliver the duly executed employment or service contract between the …