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SPA - Non-simultaneous Exchange & Completion

Share Sale and Purchase Agreement (split exchange & completion)


Most share sale transactions will usually take effect with simultaneous exchange and completion. It is simpler and easier to complete a transaction where there is no gap between the signing of the share sale and purchase agreement (SPA) and completion of the transaction. There will then be no uncertainty about when and if completion will take place. However, there may be situations where there will be conditions that need to be satisfied before completion can take place and which will necessitate a non-simultaneous or split exchange and completion. This SPA has been drafted on this basis.

A split exchange and completion will often be necessitated by the requirement for consent to be obtained from a third party, for example from a counterparty to a material contract. The parties will therefore not want to move to completion until they are certain that the conditions, whatever they are, have been satisfied. This agreement includes provision for conditions to be satisfied or waived by the buyer before the parties proceed to completion as well as how the business should be conducted in the interim period between exchange and completion.

This agreement has been drafted on the assumption of:

• cash consideration;

• no subsidiaries;

• no property is included in the sale;

• no issue of new share capital, rather this is a sale of existing shares; and

• no tax covenant or tax warranties. Independent tax advice must be sought.

This is a short form basic agreement which includes the following clauses:

1. Definitions & Interpretation

2. Conditions

3. Agreement for Sale and Purchase

4. Consideration

5. Completion

6. Warranties [and Tax Covenant]

7. Limitations on Claims

8. Confidential Information

9. Non-Competition

10. [Guarantees]

11. Indemnities

12. Publicity

13. Third Party Rights

14. Assignment

15. Whole Agreement

16. Variation and Waiver

17. Provisions surviving Completion

18. Further Assurance

19. Counterparts

20. Costs

21. Severance

22. Termination

23. Notices

24. Governing Law and Jurisdiction

And the following schedules:

1. Schedule 1 - the Sellers

2. Schedule 2 - the Company

3. Schedule 3 - Tax

4. Schedule 4 - Conditions

5. Schedule 5 - Warranties

6. Schedule 6 - Sellers’ Obligations on Completion

7. Schedule 7 - Consideration

This document is in open format. Fields should be completed and wording in square brackets is optional and can be deleted or retained according to requirements.

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