并购典型条款解析

并购典型条款解析

Sept, 2011

基本要件

•交易机制Deal Mechanics

•完成Closing

•陈述和保证Representations and Warranties

•承诺事项Covenants

•完成条件Conditions

•赔偿Indemnification

•终止Termination

交易机制

•Who gets what and when

•购买价格和支付方式

调价机制

完成

•何时&何处

基本方式

Sign-and-Close

Delayed Closing

陈诺事项

•一方关于做某事或不做某事的承诺

•完成前承诺/完成后承诺

•典型的承诺

接触和检查信息

进行业务

“No Shop”

陈述与保证

•是卖方关于目标及其业务以及拟议交易产生的影响的书面说明

•有的时候买方也要做陈述和保证

•典型的陈述和保证

–Flat –“The sky is blue”

–Qualified, e.g., :

–Knowledge: “To my knowledge, the sky is blue”

–Materiality: “The sky is materially blue”

–Time: “Since 31 December 2003, the sky has been blue”

–Disclosure: “Except as set forth in the Disclosure Letter, the sky is blue”

–

•典型的陈述和保证

•目标的性质和状态

•知识产权

•合同

•需获得的第三方同意

•代表买方和代表卖方时审查的不同重点

•披露函

陈述与保证举例：

•“Such financial statements fairly present (and the financial statem ents delivered pursuant to Section 5.8 will fairly present) the financial condition and the results of operations, changes in shareholders’ equity and cash flows of [Target] as at the respective dates of and for the periods referred to in such financial statements, all in accordance with GAAP.”

•The [Target] Financial Statements are accurate and complete in all material respects and fairly present in all material respects the financial position of [Target] and its consolidated Subsidiaries as of the respective dates thereof and the results of operations and cash flows of [Target] and its consolidated Subsidiaries for the periods covered thereby. The [Target] Financial Statements have been prepared in accordance with GAAP applied on a consistent basis throughout the periods covered (except that the financial statements referred to in Section 2.4(a)(ii) do not contain footnotes).

Buyer-Favorable “No Undisclosed Liabilities” Representation

•“No Undisclosed Liabilities. Except as set forth in Part 3.13 [of the Disclosure Letter], [Target] has no Liability except for Liabilities reflected or reserved against in the Balance Sheet or the Interim Balance Sheet and current liabilities incurred in the Ordinary Course of Business of [Target] since the date of the Inter im Balance Sheet.”

•“Liability”--with respect to any Person, any liability or obligation of such Person of any kind, character or description, whether known or unknown, absolute or contingent, accrued or unaccrued, disputed or undisputed, liquidated or unliquidated, secured or unsecured, joint or several, due or to become due, vested or unvested, executory, determined, determinable or otherwise, and whether or not the same is required to be accrued on the financial statements of such Person.

Target-Favor able No Undisclosed Liabilities” Representation

•“No Undisclosed Liabilities. Except as set forth in Part 3.13 [of the Disclosure Letter], [Target] has no liability of the nature required to be disclosed in the liabilities column of

a balance sheet prepared in accordance with GAAP except for …

•“Full Disclosure. No representation or warranty or other statement made by [Target or any Target Shareholder] in this Agreement, the Disclosure Letter, any supplement to the Disclosure Letter, the certificates delivered pursuant to Section 2.7(a) or otherwise in connection with the Contemplated Transactions contains any untrue statement or omits to state a material fact necessary to make any of them, in light of the circumstances in which it was made, not misleading.”

交易完成的先决条件

•一方完成交易的先决条件(“walk right”)

•典型的Walk Rights

–陈述和保证的准确性

–公司内部必要的授权