Acquisition documentation phase in private equity buyout transactions
Acquisition documentation phase in private equity buyout transactions

The following Corporate guidance note provides comprehensive and up to date legal information covering:

  • Acquisition documentation phase in private equity buyout transactions
  • Timing
  • What happens during this phase?
  • Key tasks for lawyers during this phase
  • Who does what?

This Practice Note is part of the Lexis®PSL Corporate private equity buyout transaction toolkit.

Timing

Preparation of a first draft of the share purchase agreement (SPA) can begin at any time after the main commercial transaction terms have been agreed and the heads of terms (for the acquisition component of the transaction) have been signed.

The due diligence and disclosure process will run concurrently with the drafting and negotiation of the SPA. The earlier that substantive due diligence is conducted by the private equity investor, the sooner the findings of the due diligence can inform the negotiation of appropriate warranty and indemnity cover in the SPA for the buyer.

Generally, save in situations of an auction sale, the investor's lawyers will prepare the first draft of the SPA and submit it to the seller's lawyers for mark-up. Drafts will pass to and fro up until exchange (signing of the SPA), which will be in advance of completion if there are conditions to completion or simultaneous with completion if there are no conditions to completion.

The drafting and negotiation of the tax covenant will commence once a draft SPA is in circulation (so that it can be referenced in the tax covenant and so as to ensure consistency of definitions and deal terms).

Drafting of the ancillary documents will begin once negotiations of the SPA