Share Purchase
Agreement

What is a Share Purchase Agreement (SPA)?

A Share Purchase Agreement (SPA) is a legal contract between a buyer and a seller for the purchase and sale of shares in a company. The agreement outlines the terms and conditions under which the shares are sold, including the price, payment terms, representations and warranties, and other relevant clauses. The SPA serves as a crucial document in M&A (Mergers & Acquisitions) transactions or the transfer of equity in a company.

Why is a Share Purchase Agreement important?

The SPA is important because it:

• Legally formalizes the sale of shares between parties.
• Defines the rights and obligations of both the buyer and the seller.
• Provides clarity on payment terms, post-closing adjustments, and any contingencies.
• Helps in protecting the interests of both parties by specifying warranties, representations, and indemnities.
• Establishes a framework for dispute resolution if any issues arise after the transaction.

What are warranties and representations in a Share Purchase Agreement?

Warranties and representations are statements made by the seller that confirm the truth of certain facts about the company being sold. They help protect the buyer from undisclosed liabilities or risks. Common warranties include:

• Ownership of shares being sold.
• Accuracy of financial statements.
• No ongoing or pending litigation.
• No undisclosed liabilities or debts.
• Compliance with applicable laws and regulations.

What are the key components of a Share Purchase Agreement?

The key components of an SPA include:

• Parties: Details of the buyer and seller.
• Recitals: Background information about the transaction.
• Definitions: Clarification of key terms used in the agreement.
• Sale and Purchase of Shares: Number and class of shares being sold, and the agreed price.
• Purchase Price and Payment Terms: The total purchase price, payment method, and payment schedule.
• Warranties and Representations: Statements made by the seller regarding the company’s assets, liabilities, and legal standing.
• Covenants: Obligations that the buyer and seller agree to undertake during the transaction process.
• Conditions Precedent: Conditions that must be met before the transaction is completed.
• Indemnities: Protection for the buyer or seller in case of losses or damages resulting from the transaction.
• Closing: The date and process of transferring the shares and finalizing the transaction.
• Dispute Resolution: Mechanisms for resolving any conflicts, such as arbitration or mediation.

How does a Share Purchase Agreement protect the interests of both parties?

The SPA includes various clauses designed to protect both the buyer and seller, such as:

• Warranties: The seller provides assurances about the company’s financial status, liabilities, and operations.
• Indemnities: The seller may agree to indemnify the buyer for any unforeseen liabilities or losses post-closing.
• Conditions Precedent: The agreement can include conditions that must be met before the sale can proceed, such as regulatory approvals or third-party consents.
• Non-Compete Clause: The seller may agree not to start a competing business for a certain period after the sale.
• Post-Closing Adjustments: The agreement may allow adjustments to the purchase price based on factors like working capital.

What is the role of the purchase price in a Share Purchase Agreement?

The purchase price is a central element in the SPA. It specifies the agreed amount that the buyer will pay to acquire the shares. This section outlines:

• The total amount for the shares being sold.
• Payment terms: Whether the payment will be made in one lump sum or in installments.
• Adjustment mechanisms: In some cases, the purchase price may be adjusted based on the company’s financial position at the time of closing (e.g., working capital adjustments).
• Escrow provisions: Sometimes, a portion of the purchase price is placed in escrow to cover post-closing adjustments or indemnity claims.

What are the conditions precedent in an SPA?

Conditions precedent are events or actions that must occur before the sale of shares is finalized. These can include:

• Regulatory approvals: Obtaining approval from government bodies or competition authorities (e.g., Competition Commission of India).
• Shareholder approvals: Approval from the company’s board of directors or shareholders.
• Due diligence completion: The buyer may require a satisfactory due diligence process to confirm the company’s financial and legal standing.
• Third-party consents: If any contracts or agreements require third-party consent before the transfer of shares, this must be obtained.

What is an indemnity in a Share Purchase Agreement?

An indemnity is a provision in the SPA where the seller agrees to compensate the buyer for any losses or liabilities that arise due to the seller’s breach of warranties or failure to meet their obligations under the agreement. Indemnity clauses are typically used to:

• Cover specific risks or liabilities that are identified during due diligence.
• Protect the buyer from future claims or legal issues.
• Define the scope, time period, and limits of indemnity.

What are post-closing adjustments in an SPA?

Post-closing adjustments are modifications made to the purchase price after the transaction has closed. These adjustments can be based on:

• Working capital: A review of the company’s assets and liabilities at the time of closing may lead to adjustments to the purchase price.
• Debt adjustments: If the company’s debts differ from the agreed-upon amount, the purchase price may be adjusted accordingly.
• Earn-out provisions: In some cases, part of the purchase price is contingent on the future performance of the company.

What is the difference between an SPA and a Share Subscription Agreement (SSA)?

While a Share Purchase Agreement (SPA) involves the sale of existing shares in a company, a Share Subscription Agreement (SSA) relates to the purchase of newly issued shares. In an SSA, the buyer subscribes to new shares issued by the company, typically as part of a capital raise. An SPA deals with the transfer of ownership of shares from one shareholder to another, while an SSA involves the company issuing new shares to the investor.

What are the legal formalities for executing a Share Purchase Agreement in India?

To execute a Share Purchase Agreement in India:

• Execution of the agreement: Both parties must sign the SPA. In some cases, the signatures may need to be witnessed.
• Stamp Duty: The SPA must be stamped according to the Stamp Act, as per the applicable state laws. The stamp duty rate varies depending on the value of the transaction.
• Registration: While the SPA is not mandatory to be registered under Indian law, certain provisions (like transfer of immovable property) may require registration.
• Filing with regulatory authorities: In certain cases, such as a listed company, the SPA or relevant documents must be filed with regulatory authorities like the Securities and Exchange Board of India (SEBI).

Can a Share Purchase Agreement be modified?

Yes, the terms of a Share Purchase Agreement can be modified by mutual consent of both the buyer and seller, provided the modifications are made in writing and signed by both parties. Any amendments to the SPA should be clearly documented to avoid future disputes.

What are the common challenges in negotiating a Share Purchase Agreement?

Some common challenges in negotiating an SPA include:

• Valuation disagreements: Disputes over the value of the company and the price of shares.
• Warranties and indemnities: Negotiating the scope of warranties and the extent of indemnities can be contentious.
• Closing conditions: Setting appropriate and fair conditions precedent that do not unduly delay or complicate the transaction.
• Post-closing obligations: Agreeing on post-closing responsibilities, especially with respect to governance or operational involvement.

What happens if a party breaches the Share Purchase Agreement?

If either party breaches the terms of the SPA, the other party can seek legal remedies such as:

• Specific performance: A court order requiring the breaching party to perform their obligations as per the SPA.
• Damages: The aggrieved party may seek compensation for any losses incurred due to the breach.
• Termination of the agreement: In cases of a material breach, the agreement may be terminated, and the buyer or seller may walk away from the deal.

How is dispute resolution handled in a Share Purchase Agreement?

An SPA typically includes a dispute resolution clause, which may specify the methods for resolving conflicts. Common methods include:

• Arbitration: A neutral third party arbitrator resolves the dispute. This is a common method due to its confidentiality and efficiency.
• Mediation: A mediator facilitates negotiations between the parties to reach a settlement.
• Court litigation: In case of failure to resolve the dispute amicably, parties may seek relief from courts.