The Merger Support Agreement is a crucial document in Indian merger and acquisition transactions, particularly where securing shareholder support is essential for the merger's success. This agreement is commonly used when an acquiring company needs to ensure certain key shareholders' commitment to the proposed merger before proceeding with the full transaction. The document typically comes into play during the early stages of a merger, after initial terms are agreed but before formal merger documents are executed. It provides certainty to the acquiring company by legally binding major shareholders to support the merger through specific voting commitments and share transfer restrictions. The agreement must comply with Indian corporate law, including the Companies Act 2013, SEBI regulations (for listed companies), and the Competition Act 2002. This type of agreement is particularly important in transactions involving family-owned businesses, closely-held companies, or where shareholder approval is critical for the merger's success.
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1. Parties: Identification of the primary parties: typically the target company, acquiring company, and key shareholders providing support
2. Background: Context of the proposed merger and purpose of the support agreement
3. Definitions: Key terms used throughout the agreement including merger-specific terminology
4. Support Obligations: Core obligations of supporting shareholders including voting commitments and share transfer restrictions
5. Transfer Restrictions: Restrictions on the transfer, encumbrance, or disposal of shares during the support period
6. Voting Undertakings: Specific commitments regarding voting in favor of the merger and related resolutions
7. Representations and Warranties: Standard declarations about share ownership, authority to enter agreement, and absence of conflicts
8. Covenants: Ongoing obligations including non-solicitation of competing offers
9. Term and Termination: Duration of the agreement and circumstances permitting termination
10. Confidentiality: Provisions regarding confidential information and public announcements
11. Governing Law and Jurisdiction: Specification of Indian law as governing law and jurisdiction for disputes
12. General Provisions: Standard boilerplate clauses including notices, amendments, and severability
1. Competing Proposal Provisions: Used when there's a need to address how to handle competing merger proposals
2. Break Fee: Include when there are financial penalties for breach of support obligations
3. Director Nomination Rights: Include when support agreement includes rights to nominate directors during transition
4. Specific Performance: Optional remedies section when parties want to explicitly provide for specific performance
5. Tax Matters: Include when specific tax implications need to be addressed
6. Employee Matters: Used when support agreement includes provisions about key employees or management
7. Foreign Investment Provisions: Include when transaction involves foreign investors and FEMA compliance
1. Schedule of Shares: Details of shares held by supporting shareholders including share certificates and folio numbers
2. Form of Shareholder Resolution: Draft of the shareholders' resolution to be passed for merger approval
3. Deed of Adherence: Template for additional shareholders joining the support agreement
4. Merger Timeline: Key dates and milestones for the merger process
5. Required Regulatory Approvals: List of necessary regulatory approvals and their status
6. Competing Proposals Protocol: Procedures for handling competing proposals if allowed
7. Power of Attorney: Format of power of attorney if required for voting or other actions
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