The Share Sale and Purchase Agreement (SPA) is a fundamental transaction document used in Swiss M&A deals when transferring ownership of a company through the sale of its shares. This document is essential for both private and public company transactions, though additional requirements apply for listed companies. It must comply with Swiss law, particularly the Swiss Code of Obligations, and may need to address specific regulatory requirements such as merger control, banking regulations, or Lex Koller restrictions for foreign investors. The agreement typically includes detailed provisions on purchase price mechanisms, warranties about the target company's condition, tax indemnities, and completion procedures. It's commonly used in both domestic Swiss transactions and cross-border deals where Swiss companies are the target or where Swiss law is chosen as the governing law.
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1. Parties: Identification of the seller(s) and buyer(s) with full legal names and addresses
2. Background: Context of the transaction, including brief description of the target company and purpose of the agreement
3. Definitions and Interpretation: Defined terms used throughout the agreement and rules of interpretation
4. Sale and Purchase: Core transaction terms including the shares being sold and purchase price
5. Purchase Price: Detailed provisions on consideration, including payment mechanics and any price adjustment mechanisms
6. Conditions Precedent: Conditions that must be satisfied before completion can occur
7. Pre-Completion Obligations: Parties' obligations between signing and completion, including conduct of business requirements
8. Completion: Mechanics and requirements for closing the transaction, including deliverables and timing
9. Warranties: Seller's representations and warranties about the company and shares
10. Limitations on Liability: Limitations on warranty claims and general liability caps
11. Tax Indemnity: Specific indemnities relating to tax matters
12. Confidentiality: Obligations regarding transaction confidentiality and public announcements
13. Notices: Format and delivery requirements for formal communications
14. General Provisions: Standard boilerplate clauses including governing law, jurisdiction, and entire agreement
15. Governing Law and Jurisdiction: Specification of Swiss law as governing law and jurisdiction for disputes
1. Earn-out Provisions: Used when part of the purchase price is contingent on future performance
2. Non-Competition and Non-Solicitation: Required when restrictions on seller's future activities are needed
3. Transitional Services: Included when the seller needs to provide ongoing services post-completion
4. Employee Matters: Specific provisions dealing with key employees or employee-related liabilities
5. Real Estate Provisions: Required when the target company owns significant real estate (especially relevant for Lex Koller considerations)
6. Intellectual Property Rights: Detailed provisions when IP is a significant asset of the target company
7. Bank Financing: Required when the purchase is dependent on external financing
8. Break Fee: Included when parties want to specify compensation for failed completion
1. Details of the Target Company: Corporate information, shareholding structure, and subsidiaries
2. Conditions Precedent: Detailed list of all conditions to be satisfied before completion
3. Completion Obligations: Detailed list of actions and deliverables required at completion
4. Warranties: Full list of seller's warranties about the company and business
5. Disclosed Information: List of documents disclosed against the warranties
6. Properties: Details of all real estate owned or leased by the target company
7. Intellectual Property: List of all IP rights owned or licensed by the target company
8. Material Contracts: Summary of key commercial contracts
9. Employees: Details of key employees and their terms of employment
10. Data Room Index: Index of all documents provided in due diligence
11. Completion Accounts: Pro forma completion accounts and accounting policies
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