Share Purchase Agreements

What is a share purchase agreement?

A share purchase agreement is drawn up to sell shares in a company to a named party. Where the purchase is for all of the shares in a company the buyer will become the owner of all of the company’s assets, rights and liabilities. Where the buyer is itself a corporate body the purchased company would become a subsidiary.

It is often a requirement of the purchaser that the seller remain involved with the company during the transition period. The agreement may also contain restrictive covenants, eg. preventing the directors from setting up a similar rival business. The buyer is likely to request warranties in respect of the company’s financial position and indemnities in respect of liabilities.

What is the difference between a share purchase and an asset purchase?

With a share purchase, a company is taken on in its entirety to include all liabilities. With an asset purchase only specific parts are transferred to the buyer. These can either be named assets or referred to more generally as assets necessary to carry out the company’s business.

The advantage of an asset purchase is that the buyer can specify exactly what he is to receive and can avoid any unwanted and potentially unknown liabilities, for example pending legal actions, environmental clean-ups or pension fund deficits. It is also possible for a company to sell of one part of its business separately.

Is there a difference between a share sale and share purchase agreement?

No, the terms are interchangeable depending on whether you are looking at a transaction from the point of view of the buyer or seller.

Is the buyer or seller expected to draw up legal documents for the transaction?

A share purchase agreement is usually drawn up by the seller’s solicitor, although it can be drafted by either side. The seller will try and limit their ongoing liabilities while the buyer’s solicitor will ask for as much protection as possible. In the case of auction sales the documentation may more often be drawn up by the buyer’s lawyer.

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