The Equity Repurchase Agreement is a crucial document used when a company decides to buy back its own shares from existing shareholders, a transaction that requires careful consideration of German corporate law requirements, particularly the Aktiengesetz (AktG). This document is typically employed in scenarios such as employee exits, corporate restructuring, capital management, or implementation of share buyback programs. The agreement must address the strict regulatory requirements under German law, including the 10% limitation on share capital repurchases under 搂71 AktG, proper corporate authorizations, and compliance with capital maintenance rules. It includes detailed provisions on valuation, payment terms, warranties, and tax implications, while ensuring adherence to both corporate law and regulatory requirements. For listed companies, additional considerations regarding market abuse regulations and stock exchange rules must be incorporated.
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1. Parties: Identification of the company (purchaser) and the shareholder(s) (seller(s))
2. Background: Context of the agreement, including current shareholding structure and corporate approvals obtained
3. Definitions: Key terms used throughout the agreement, including Share definition, Completion Date, Purchase Price
4. Sale and Purchase: Core transaction terms including number of shares, price per share, and total consideration
5. Purchase Price and Payment: Detailed payment terms, payment mechanism, and any adjustments
6. Conditions Precedent: Required corporate approvals, regulatory clearances, and other conditions that must be met before completion
7. Completion: Timing, location, and mechanics of the transfer, including required actions and deliverables
8. Seller's Warranties: Warranties regarding share ownership, authority to sell, and absence of encumbrances
9. Company's Warranties: Warranties regarding corporate authority, compliance with AktG requirements, and financial capacity
10. Tax Matters: Tax-related representations, indemnities, and compliance with German tax regulations
11. Confidentiality: Obligations regarding transaction confidentiality and public announcements
12. Notices: Process and requirements for formal communications between parties
13. Governing Law and Jurisdiction: Confirmation of German law governance and jurisdiction for disputes
14. General Provisions: Standard boilerplate clauses including severability, entire agreement, and amendments
1. Market Abuse Regulation Compliance: Required for listed companies, detailing compliance with MAR requirements
2. Staged Completion: Used when the repurchase occurs in multiple tranches
3. Price Adjustment: Included when the purchase price may be adjusted based on specific triggers or conditions
4. Bank Guarantee: Required when payment security is needed or for large transactions
5. Tag-Along Rights: Relevant when only part of a shareholder's holding is being purchased
6. Regulatory Compliance: Additional section for regulated industries or when specific regulatory approvals are required
7. Employee Matters: Relevant when the seller is/was an employee or when repurchase is linked to employment termination
1. Schedule 1 - Share Details: Detailed description of the shares being repurchased, including share certificates numbers and shareholder register details
2. Schedule 2 - Corporate Authorizations: Copies of board resolutions, shareholder resolutions, and other corporate approvals
3. Schedule 3 - Completion Requirements: Detailed list of documents and actions required at completion
4. Schedule 4 - Form of Transfer Instruments: Template share transfer forms and other required transfer documentation
5. Schedule 5 - Warranties: Detailed warranties and any specific limitations or qualifications
6. Appendix A - Calculation of Purchase Price: If applicable, detailed methodology for price calculation or adjustment
7. Appendix B - Payment Mechanics: Detailed payment instructions and bank account details
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