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Reprentations and Warranties
•承诺事项Covenants
•完成条件Conditions 民俗文化有哪些
•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-Clo
Delayed Closing
陈诺事项
•一方关于做某事或不做某事的承诺 过年放鞭炮的寓意
•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 t 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
教槽料•需获得的第三方同意
行政授权•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 prent (and the financial statements delivered pursuant to Section 5.8 will fairly prent) 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 prent 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).
明晰的意思
Buyer-Favorable “No Undisclod Liabilities” Reprentation
•“No Undisclod Liabilities. Except as t forth in Part 3.13 [of the Disclosure Letter], [Target] has no Liability except for Liabilities reflected or rerved against in the Balance Sheet or the Interim Balance Sheet and current liabilities incurred in the Ordinary Cour of Business of [Target] since the date of the Interim 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, cured or uncured, joint or veral, due or to become due, vested or unvested, executory, determined, determinable or otherwi, and whether or not the same is required to be accrued on the financial statements of such Person.
Target-Favorable No Undisclod Liabilities” Reprentation
•“No Undisclod Liabilities. Except as t forth in Part 3.13 [of the Disclosure Letter], [Target] has no liability of the nature required to be disclod in the liabilities column of a balance sheet prepared in accordance with GAAP except for …
•“Full Disclosure. No reprentation 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 otherwi 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.”生日祝福语妈妈
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
花菜怎么切
–陈述和保证的准确性
–公司内部必要的授权
–没有重大不利变化
–尽职调查令一方满意
完成的前提之一：陈述与保证的准确性
“Accuracy of Reprentations and Warranties. Each of the reprentations and warranties made by the Target in this Agreement shall have been accurate in all respects as of the date of this Agreement, and shall be accurate in all respects as of the Closing Date as if made on the Closing Date.””
“Accuracy of Reprentations and Warranties. Each of the reprentations and warranties made by the Target in this Agreement shall be accurate in all respects as of the Closing Date as if made on the Closing Date, except for inaccuracies of re
prentations or warranties the circumstances giving ri to which, individually or in the aggregate, do not constitute and could not reasonably be expected to have a Material Adver Effect.”
“ No Material Adver Change. Since the date of this Agreement, there has not been any Target Material Adver Change.”
姐弟恋完成的前提之二：无重大不利影响
“Material Adver Effect” means any change or effect that is or would reasonably be expected to be materially adver to the asts, properties, Business, operations, liabilities, results of operation or financial condition of [Target] and its Subsidiaries, taken as a whole; including, without limitation, the occurrence prior to Closing of any single event, or any ries of related events, or t of related circumstances, which could reasonably be expected to cau an actual, direct net decrea in EBITDA for either the 12 month period ending January 31, 2004 or EBITDA for any 12 month periods ending after the Closing Dat
e but prior to the first anniversary of the Closing Date, in excess of [****] (after giving effect to any other offtting increas or decreas affecting EBITDA); [****]
