Don’t Rush the Disclosure Letter in M&A Transactions
In M&A transactions, a disclosure letter sets out the exceptions to seller’s representations and warranties in a sale and purchase agreement for an M&A transaction (“SPA”). Instead of negotiating heavily on sellers’ representations and warranties in SPAs, it is common to provide in SPAs that sellers’ representations and warranties are …
Can the Purchaser Rely on the Warranty and Indemnity Clauses in the Share Purchase Agreement?
In M&A transactions, warranty and indemnity clauses are toolkits for protecting the purchaser’s interest. But what happens if the seller can’t fulfill these obligations due to financial reason? A well-drafted clause is only as effective as the seller’s ability to pay. If the purchaser is concerned that the seller may …
IP Warranties in M&A Agreements
If intellectual property of a target company is what drives the acquisition, the IP warranties in the transaction agreement should be comprehensive to protect the buyer’s interests. The IP warranties in the transaction agreement should include: The target company owns or holds valid licenses for all IP essential to its …
What to Look Out for When Acquiring a Company with Valuable Intellectual Property
1. Ownership of IP Identify the IP that is material to the business and who owns the IP. Request the sellers to provide a comprehensive list of all IP material to the business, whether registered or not. For registered IP, such as patents and registered trademarks, conduct searches for all …
Why You Shouldn’t Rely on Online Shareholders’ Agreement Templates
Drafting an effective shareholders’ agreement requires expertise in company law, shareholders’ rights and directors’ duties. It’s perplexing that some people think a shareholders’ agreement can be put together quickly and easily by using an online template and changing the parties’ names and a few details. While online templates are easily …
Legal Requirements for Allotment of Shares in Malaysia
M&A transactions often involve allotment of shares in a company. Understanding the legal requirements for allotment of shares is essential to ensure compliance and avoid potential disputes over the validity of allotment of shares. The following are the key steps for allotment of shares under the Companies Act 2016 (CA) …
The ESG Challenge in M&A: Why It’s Harder Than You Think
1. Fragmented Laws ESG laws and regulations are fragmented, with no centralised framework. This makes tracking relevant requirements and ensuring compliance particularly challenging for companies. Conducting legal due diligence on ESG in M&A transactions which goes beyond obtaining a target company’s’ confirmation on compliance and getting real data may be …
ESG in legal due diligence for M&A transactions
As ESG considerations become increasingly prominent in the business landscape, it’s prudent to consider ESG in M&A legal due diligence. Below are the key legal requirements and corporate governance code to consider in relation to ESG in M&A legal due diligence: Environmental 1. Environmental Quality Act 1974 (EQA) The EQA, …
Three Purposes of Representations and Warranties in M&A SPAs
When I first started in M&A, I found drafting and negotiating representations and warranties to be one of the most daunting aspects of the process. These clauses, often included in a long schedule towards the end of the sale and purchase agreements, are usually closely scrutinised by both parties’ legal …
How to Prevent Earn-Out Disputes in M&A Deals
1. Set rules for how business should be managed after completion In M&A deals with earn-out provisions, sellers often continue to run the business of the target companies after completion. Sellers are incentivized to maximise the profits of the target companies to meet the performance targets for the earn-outs. However, …