The Share and Asset Purchase Agreement (SAPA) is a specialized transaction document used in Australian business acquisitions where the buyer wishes to acquire both shares in a company and specific assets in a single transaction. This hybrid approach is particularly useful when the target business operates through multiple entities or where certain assets need to be carved out or specifically included in the deal structure. The document must comply with Australian corporate law requirements, including the Corporations Act 2001 (Cth), relevant state legislation, and potentially FIRB regulations for foreign investors. It typically includes detailed provisions for purchase price allocation, tax implications, asset transfer mechanics, and employee considerations. The SAPA is commonly used in mid to large-scale corporate transactions and requires careful consideration of both share transfer requirements and asset-specific transfer obligations.
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1. Parties: Identification of buyer, seller(s), and any guarantors
2. Background: Context of the transaction, including description of the business, shares, and assets being transferred
3. Definitions and Interpretation: Defined terms and interpretation clauses
4. Sale and Purchase: Core transaction terms for both shares and assets, including purchase price allocation
5. Purchase Price and Payment: Detailed payment terms, including any adjustments, earn-outs, or escrow arrangements
6. Conditions Precedent: Prerequisites to completion, including regulatory approvals and third-party consents
7. Pre-Completion Obligations: Seller's obligations regarding business operation before completion
8. Completion: Mechanics and requirements for closing the transaction
9. Warranties: Seller's warranties regarding the shares, assets, and business
10. Limitations on Claims: Limitations on warranty claims and indemnities
11. Post-Completion Obligations: Ongoing obligations after completion, including transitional arrangements
12. Restraint of Trade: Non-compete and non-solicitation provisions
13. Confidentiality: Confidentiality obligations and announcements
14. General Provisions: Standard boilerplate clauses including notices, governing law, and dispute resolution
1. Tag and Drag Rights: For transactions involving multiple sellers or partial acquisitions
2. Foreign Investment Provisions: Required when the transaction involves foreign buyers or regulatory approval
3. Employee Matters: Detailed provisions for employee transfers and associated liabilities
4. Intellectual Property Assignment: Specific provisions for IP transfer and protection
5. Real Property Provisions: Specific provisions for transfer of real property assets
6. Environmental Matters: Required for businesses with significant environmental considerations
7. Bank Guarantee/Security: When additional security for payment or performance is required
8. Tax Indemnity: Detailed tax-specific indemnities and allocations
9. Earn-out Provisions: When part of the purchase price is contingent on future performance
10. Break Fee: When there's a need to ensure transaction certainty
1. Schedule 1 - Definitions: Detailed list of defined terms
2. Schedule 2 - Share Details: Details of shares being transferred, including share capital structure
3. Schedule 3 - Assets: Comprehensive list and description of assets being transferred
4. Schedule 4 - Excluded Assets: List of assets specifically excluded from the sale
5. Schedule 5 - Properties: Details of any real property included in the sale
6. Schedule 6 - Intellectual Property: List of IP rights being transferred
7. Schedule 7 - Material Contracts: Key contracts being transferred or requiring consent
8. Schedule 8 - Employees: List of transferring employees and their entitlements
9. Schedule 9 - Warranties: Detailed warranties given by the seller
10. Schedule 10 - Completion Requirements: Detailed list of completion deliverables
11. Schedule 11 - Working Capital Calculation: Methodology for calculating working capital adjustments
12. Appendix 1 - Form of Transfer Instruments: Pro forma transfer documents
13. Appendix 2 - Form of Board Resolutions: Pro forma board resolutions
14. Appendix 3 - Disclosure Letter: Seller's disclosures against warranties
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