Dear All,
After relaxing summer and some of the spring's corporate
transactions it is time to start this autumn and what would be a better way to
do this than to publish a new chapter in our SPA blog series. The total reader
amount of the blog has exceeded the respectable 5.000 of which I am very
grateful and special thanks for everyone who has visited my site!
During the spring we managed to close some interesting deals
at TRUST including, e.g., financing rounds of Sportsetter Oy (of the deal see more
from here) or sale of Alkali Oy to Alma Mediapartners (part of Alma group, of
the deal see more from here) not forgetting our IP & Technology practise.
There we advised, e.g., in one IP infringement for a listed Finnish forestry
sector company and in business-critical ERP project in Norway negotiating
plenty of IT procurement agreements in a multivendor environment. So just the
kind of case we love doing! Unfortunately, it also meant that I had to postpone
my blogging in this SPA series, but I try to be more active during these coming
few months although I must say a warning word that we are also contributing to
some other publications on cleantech sector investments, private equity and
M&A so we'll see.
Regarding our actual topic, next in this SPA our blog we’ll
go forward and move to definitions. I will not comment on some of the
definitions that are more self-evident, such as “Parties” (or group companies
and subsidiaries) or similar, but the most critical ones should be here. This
is not to say that definitions not included in this blog would be irrelevant.
As an example, if the deal involves minority ownerships or a joint venture, it is
very important to have a sufficiently wide subsidiary definition. Another point
is that these group company and subsidiary definitions should be drafted with
care to ensure that obligations of the agreement document are allocated to the
right companies and that, say, warranties are given by appropriate parties.
First, let me show you some of the main principles behind
definitions:
- One should really
pay effort to draft definitions, as these are the core terms of the agreement
and in its interpretation.
- Always maintain
consistency. So if you have a capitalized term, do not use it without capital
letter or don’t use a different word to describe the same thing you have
already defined.
- Understand the
rules of interpretation in the applicable jurisdiction; if these are modified
in the definitions section, check how you change the situation in case of
dispute, e.g., to the allocation of burden of proof, in dubio contra
stipulatorem or similar.
Let’s go through some more detailed definitions and comments
to these. So, in very simple transactions these definitions could take the
following form. This is actually a kind of a negotiation result of an earlier
deal, so please note that this is not optimized for either the buyer or the
seller as a starting position of the negotiation.
Term .
|
Meaning
.
|
|
Accounting
Principles
|
The
accounting records kept by the Company have been kept on a proper and
consistent basis and contain all matters required by applicable law to be
entered in them.
|
|
Agreement
|
This
Agreement and all appendices hereto including the Disclosure Letter.
|
|
Completion
|
The
consummation of the Agreement as described in section X.
|
|
Disclosure
Material
|
All
information on or related to the Company that has been made available during
the Due Diligence Review to the Purchaser or its advisors, the negotiation
process or otherwise, whether orally or in writing, as well as all
information on the Company in the public domain.
|
|
Due
Diligence Review
|
The meaning
set forth in section X.
|
|
Financial
Statements
|
The
profit and loss statement and balance sheet of the Company for the financial
period ended on 31 December 2013 together with the auditors'
statement thereon.
|
|
Material
Adverse Effect
|
Any
material adverse change on the assets or financial condition of the Company,
exceeding EUR X other than any change or effect (a) relating to the
economy of the world or any geographic area in general, (b) relating to the
industry in which the Company operate in general, (c) arising out of the
announcement or pendency of the transaction contemplated by this Agreement,
(d) arising out of compliance by the Seller with the terms of this Agreement
or (e) arising out of any action taken or announced by the Purchaser or taken
or announced by the Seller, the Company at the request or direction of the
Purchaser or any inaction or failure to act by the Seller, the Company at the
request or direction of the Purchaser.
|
|
Purchase
Price
|
The meaning
set forth in section X.
|
|
Seller's
Knowledge
|
The
actual knowledge of any of the following individuals: XXX and YYY.
No duty
of investigation shall be implied on the persons referred to above for the
purpose of the transaction contemplated by the Agreement and the giving of
the representations, warranties and undertakings thereunder.
|
|
Shares
|
All of
the issued and outstanding shares of the Company.
|
|
Then, few words about some of the most critical definitions
and additional points:
“Accounting Principles” & “Financial Statements”
First an organisational point which relates to the group
structure of the target. If the target is a group, then accounting principles
could be defined, e.g., as follows: “…the financial statements of the Company
and the Subsidiaries as at and to the Balance Date, comprising the individual
accounts of the Company and the Subsidiaries, and in the case of the Company,
the consolidated group accounts of the Company and the Subsidiaries…”. In the
above model, the target was merely a single entity.
Why, then, are these definitions critical? Well, the answer
is simple: in almost all transactions the purchase price will be based on the
target’s (or its group’s) accounts. Of course, goodwill and similar “assets” are
excluded for the previous statement to be valid as these are not visible from
the accounts. Consequently, it is very important to understand what the
standards applied are when these where drafted, what the latest financial
documents available are and how much reliance can be posed to these. From the
seller’s point of view, the other side of the coin is that it needs to provide
a warranty for the accounts so that these are accurate so if there are any
shortfalls or inaccuracies, then it might result a warranty claim afterwards.
If the target is a group, the definition should refer to
consolidated accounts. It is also advisable to include individual accounts as
some items like intra-group transactions might not be included in the
consolidated accounts.
When are these accounts too old? As everyone can guess,
there is no standard rule for this. In any case, we could speak about a period
of three months, and information older than these might quite surely be
outdated. Management accounts, on the other hand, are a completely different
story and these will be typically drafted on a monthly basis. If these accounts
are too old, then naturally there might be a need to produce new ones for the
closing or completion date, but taking into account that these naturally might
take some additional time. In any case, there is always a relationship to the
warranties as said above and every share purchase agreement should contain
warranties not only as to the accuracy of the financial statements but also
management accounts and financial position thereafter. We will return to these
warranties later.
“Disclosure Material”
This definition relates to the core mechanics of the share
purchase. If an issue is described in the disclosure materials, then the
purchaser cannot claim that there would be a breach of warranty unless the
parties have agreed on specific indemnity to cover a known risk.
More limited versions of this could be, e.g., “…shall refer
to all written material listed in Schedule X made available by the Sellers to
the Purchaser or its Advisors in connection with the Due Diligence Review.
“Material Adverse Change”
Also one of the key definitions. This definition may be used
in connection with the conditions to closing or in connection with the
warranties. If we look at the former, in practise if there is “no material
change” clause used as a condition for closing and such an event is realized,
then the buyer may walk out of the deal.
One alternative wording to the above mentioned quite
detailed text is naturally to use a more general definition such as the
following:
“..shall refer to any occurrence, event or change which
materially and adversely affects or could reasonably be expected to materially
and adversely affect the Business,
assets, liabilities, financial conditions, financial results of operations or
prospects of any Group Company”.
The usage slightly depends on the how the definition is used
in the documentation. As a seller, one does not want to permit an “easy exit”
for the buyer to walk out of the deal and as a condition for closing this kind
of express wording with reference to, say, political and other more
general-level financial risks could be appropriate. There can also be a
monetary limit that could be expressly specified or it could be defined quite
freely. One possibility is to define it as percentage of the consolidated
revenue, EBITDA or net worth levels.
“Seller’s Knowledge”
As discussed earlier, representations and warranties are
often heavily negotiated between the parties. These clauses serve for several
purposes but one is to allocate risks and force the seller to share information
on the possible risks associated with the target business. When negotiating an
SPA, the seller has an incentive to keep its representations and warranties as
narrowly drafted as possible. On the other hand, the buyer, naturally, wants
those representations and warranties to cast as wide net as possible.
One way for a seller to achieve its objectives is to qualify
the representations and warranties to its “knowledge.” Let’s take an example
that there is a security arrangement over the assets that the seller’s CEO
failed to disclose and which is not recorded. Even if this item is covered by a
warranty and the seller might be “on the hook” in this respect, the seller
might escape liability if such defined person making disclosures did not have
“actual knowledge” about the security. Similarly, the buyer, on the other hand,
wants the seller’s representations and warranties to be unqualified. In
connection with the specific warranties, we look at specific representations
and warranties and how and when to qualify warranties.
If we once again provide an alternative from the other end
of the negotiation spectrum:
“…shall refer to the actual knowledge of the individuals
listed in Schedule 3.46 or the knowledge of such persons, had they acted
diligently in view of their positions.”
So next we go to purchase price mechanisms, a very interesting
topic, and I try to provide that within the next few weeks.
I wish you all an energetic autumn on behalf of TRUST's
M&A team and looking forward to being in touch with you after these
relaxing vacation weeks! Another matter before I forget, I was elected as the
Co-Chair of ITechLaw's IP Committee and let me know if someone is going to
European conference to be held in Paris as it would be my pleasure to meet
there. Or alternatively, if you are going to IBA in Tokyo, that would be
another alternative (send an e-mail jan.lindberg@thetrust.fi or call
+358408236031) - hope to see you there!
Regards,
Jan
