The Share Swap Agreement is a sophisticated financial instrument used when parties wish to exchange the economic benefits and risks of share ownership without transferring actual share ownership. This document, governed by German law, is typically employed by financial institutions, investment firms, and corporate entities for various purposes including investment strategies, risk management, and synthetic equity exposure. The agreement must comply with German regulatory requirements, particularly the Securities Trading Act (WpHG) and Banking Act (KWG), as well as European regulations such as EMIR. It contains detailed provisions for payment calculations, corporate actions, market disruption events, and early termination scenarios, while incorporating specific German legal requirements for financial instruments and derivatives trading.
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1. Parties: Identification of the swap counterparties and their legal details
2. Background: Context of the transaction and relationship between the parties
3. Definitions: Detailed definitions of technical terms, calculation methods, and key concepts used in the agreement
4. Swap Obligations: Core provisions detailing the swap payments, calculation periods, and payment mechanics
5. Initial Exchange: Terms governing any initial exchange of shares or payments
6. Calculation Agent: Appointment and responsibilities of the calculation agent
7. Payment Mechanics: Detailed procedures for making and receiving payments
8. Corporate Actions: Treatment of dividends, rights issues, and other corporate events affecting the underlying shares
9. Representations and Warranties: Standard and transaction-specific representations by both parties
10. Events of Default: Circumstances constituting default and corresponding remedies
11. Termination Events: Circumstances allowing early termination and settlement procedures
12. Tax Provisions: Treatment of taxes, including gross-up obligations and tax event termination rights
13. Market Disruption: Procedures for handling market disruption events
14. Governing Law and Jurisdiction: German law as governing law and jurisdiction provisions
15. Notices: Communication procedures between parties
16. Miscellaneous: Standard boilerplate provisions including amendments, assignments, and severability
1. Credit Support Arrangements: Include when parties agree to collateral or margin requirements
2. Third Party Rights: Include when guarantors or other third parties have rights under the agreement
3. Break Clauses: Include when parties want optional early termination rights
4. Special Transfer Provisions: Include when specific transfer restrictions or rights are needed
5. Regulatory Compliance: Include detailed regulatory provisions when one or both parties are regulated entities
6. Multiple Transaction Provisions: Include when agreement serves as a master agreement for multiple swaps
7. Special Tax Provisions: Include when complex tax considerations apply or for cross-border transactions
1. Schedule 1 - Economic Terms: Detailed economic terms including notional amount, calculation period, payment dates
2. Schedule 2 - Share Details: Specifications of the underlying shares including issuer details, ISIN, exchange
3. Schedule 3 - Calculation Methods: Detailed calculation methodologies for payments and adjustments
4. Schedule 4 - Form of Confirmation: Template for transaction confirmations if multiple transactions contemplated
5. Schedule 5 - Credit Support Terms: Details of any credit support arrangements including collateral terms
6. Appendix A - Account Details: Payment and settlement account details for both parties
7. Appendix B - Authorized Persons: List of authorized signatories and contact persons
8. Appendix C - Tax Forms: Required tax documentation and forms
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