Charltons provides high impact advice to clients on complex private M&A transactions, particularly on deals involving an international cross-border or significant PRC dimension. We represent buyers, sellers, major shareholders, lenders, financial advisors and management groups. We have advised on M&A transactions across a range of industries, and are particularly experienced in deals in the natural resources M&A sector.
We provide complete project management, advising clients from the early stages of a private M&A transaction through strategic preparations and planning, restructuring, due diligence, deal financing, negotiation and closing. We aim to provide smart and practical advice when encountering the many issues that typically arise in the course of a private M&A transaction, including purchase price holdbacks and earn-outs, scope of warranties, indemnities and non-competes, merger control and antitrust.
Our team comprises multi-cultural and multi-lingual lawyers with considerable experience of international deals. The firm also has extensive personal links with firms in over 60 countries worldwide and often acts as the coordinating law firm for an M&A transaction when advice from multiple jurisdictions is required. Our lawyers provide insightful and highly personalised service to clients, often working round the clock to deliver on transactions spanning several time zones.
We have acted on several Chinese “outbound” M&A deals in recent years, and have experience in the particular challenges faced by Chinese companies in outbound private M&A, from dealing with political sensitivities and investment restrictions on state owned enterprises in countries like the US and Australia to domestic concerns and regulatory approvals for outbound acquisitions that can complicate deal making and put Chinese bidders at a disadvantage, particularly in auction situations.
Major terms in a private M&A transaction
The commercial terms of a private M&A transaction may sometimes be agreed to some extent in the heads of terms between the relevant parties. Although this typically may not be legally binding among the parties, it would set out key terms of the proposed private M&A transaction and the respective parties’ obligations in connection therewith which will form the framework for definitive agreement. Typically, it would include, inter alia:
General information of the transaction
- parties of the private M&A transaction (may include buyer or seller and parent company guarantor);
- details of the company or the company the shares of which is being acquired.
- agreement to sell and purchase the shares – normally with “full title guarantee” or wording of similar effect e.g. “free from all claims, charges, liens, encumbrances, equities and adverse rights of any description”.
Consideration and payment method
- the consideration for the shares (that is, cash or cash equivalent, shares in the buyer (share swap), debt instrument such as loan stock, other non-cash considerations or a combination of them);
- payment, settlement and completion mechanisms – note that exchange and completion may take place simultaneously or there may be a time gap for the satisfaction of certain conditions precedent for the transaction; on completion, executed stock transfer forms, share certificates, statutory books and records etc. are delivered by the seller against the payment by the buyer of the consideration.
- any conditions that must be satisfied prior to completion of the sale, often referred to as conditions precedent (for example, obtaining of relevant shareholders’ and regulatory approvals or consents; obtaining of tax clearance or obtaining of certain third party consents etc.).
Representations, warranties, indemnities and undertakings
- representations, warranties and indemnities to be given by the seller in connection with the shares and/or the underlying assets of the companies the shares relate;
- undertakings of the seller in connection with pre-completion conduct (if signing and completion is not simultaneous) and/or post-completion matters;
- tax covenants and indemnities to be given by the seller in connection with pre-completion tax liabilities in connection with shares or underlying assets.
Limitation on liability
- limitations on liability of the seller in connection with claims that may be brought against the seller (by excluding small claims, stipulating a monetary threshold, preventing double recovery etc.) and usually the claims would be limited to the consideration paid by the buyer for the target group or relevant shares;
- retention clause, if applicable, where part of the consideration is retained by the buyer or put in escrow as security for certain claims under the agreement or conditional upon occurrence of certain events;
- other standard provisions relating to confidentiality, exclusivity, assignments, governing law etc.