The Share Purchase Agreement (SPA) is a fundamental transaction document used in Swiss M&A practice for the acquisition of shares in private companies. It serves as the primary contract governing the transfer of ownership between sellers and buyers, incorporating requirements under Swiss law, particularly the Swiss Code of Obligations. This document is essential when acquiring partial or full ownership of a company through share acquisition, as opposed to asset purchases. The SPA details crucial elements including purchase price mechanisms, payment terms, warranties and representations, conditions precedent, closing mechanics, and post-closing obligations. It must comply with Swiss formal requirements for share transfers while also addressing practical commercial concerns such as tax implications, regulatory approvals, and risk allocation between parties. The agreement is typically preceded by due diligence and may be accompanied by ancillary documents such as shareholders' agreements or employment contracts for key personnel.
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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 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 number of shares, purchase price, and payment terms
5. Conditions Precedent: Conditions that must be satisfied before completion of the transaction
6. Pre-Completion Obligations: Obligations of parties between signing and completion, including conduct of business requirements
7. Completion: Mechanics of closing, including timing, location, and actions required
8. Warranties: Seller's representations and warranties about the company and shares
9. Limitations on Liability: Limitations on warranty claims and other liability provisions
10. Indemnification: Indemnification obligations and procedures
11. Confidentiality: Obligations regarding confidential information
12. Announcements: Requirements for public announcements about the transaction
13. Taxes: Tax-related provisions, including allocations and responsibilities
14. Further Assurance: Obligations to take additional actions to implement the agreement
15. Notices: Process for formal communications between parties
16. Assignment: Restrictions on transfer of rights under the agreement
17. General Provisions: Standard boilerplate provisions including amendments, waivers, and severability
18. Governing Law and Jurisdiction: Choice of Swiss law and jurisdiction provisions
1. Non-Competition and Non-Solicitation: Restrictions on seller's competitive activities, used when seller has significant knowledge or relationships
2. Bank Guarantee/Escrow: Security arrangements for purchase price or warranties, used in higher-risk transactions
3. Earn-out Provisions: Additional payment terms based on future performance, used when parties cannot agree on fixed value
4. Management Agreements: Terms for ongoing management involvement, used when key managers are selling shareholders
5. Intellectual Property Rights: Special provisions for IP transfer or protection, used when IP is a significant asset
6. Real Estate: Special provisions for company's real estate, used when real estate is a material asset
7. Environmental Matters: Environmental warranties and indemnities, used in industries with environmental risks
8. Data Protection: Specific provisions for handling personal data, used when significant data assets are involved
9. Employee Matters: Special provisions regarding employees, used when employment issues are material
1. Details of the Company: Corporate information including shareholding structure and subsidiaries
2. Warranties: Detailed warranties about the company, its business and assets
3. Properties: List and details of real estate owned or leased by the company
4. Intellectual Property: List of IP rights owned or licensed by the company
5. Material Contracts: Summary of key contracts and commitments
6. Employees: List of employees and their key terms of employment
7. Completion Obligations: Detailed list of documents and actions required at completion
8. Disclosed Documents: List of documents disclosed against the warranties
9. Form of Resignation Letters: Template resignation letters for departing directors
10. Form of Board Resolutions: Template board resolutions approving the transfer
11. Tax Deed: Detailed tax covenant and related provisions
12. Data Room Index: Index of documents provided in due diligence
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