The Business Acquisition Agreement is a crucial document used in merger and acquisition transactions in Hong Kong, designed to facilitate and document the purchase and sale of businesses. It serves as the primary contract between the buyer and seller, outlining all essential terms of the transaction including the purchase price, payment structure, warranties, and post-completion obligations. This agreement must comply with Hong Kong's legal framework, particularly the Companies Ordinance (Cap. 622), Competition Ordinance (Cap. 619), and other relevant legislation. It is typically prepared following initial negotiations and due diligence, incorporating necessary protections for both parties while addressing specific requirements of Hong Kong's business and regulatory environment. The agreement can be structured either as an asset purchase or share transfer, depending on the transaction structure, and includes comprehensive provisions for handling employees, intellectual property, real estate, and other business assets.
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1. Parties: Identifies and defines all parties to the agreement, including seller(s) and buyer(s)
2. Background: Recitals explaining the context of the transaction and basic information about the target business
3. Definitions and Interpretation: Comprehensive definitions of terms used throughout the agreement and rules of interpretation
4. Sale and Purchase: Core transaction terms including what is being sold (assets or 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 all parties between signing and completion, including conduct of business requirements
7. Completion: Details of the completion process, timing, location, and deliverables
8. Warranties and Representations: Seller's warranties about the business, assets, liabilities, and other material aspects
9. Limitations on Liability: Limitations on warranty claims and general liability caps
10. Tax Covenants: Provisions dealing with tax liabilities and indemnities
11. Confidentiality and Announcements: Obligations regarding confidential information and public announcements
12. Non-Competition and Non-Solicitation: Restrictions on seller's future competitive activities
13. General Provisions: Standard boilerplate clauses including notices, amendments, governing law, etc.
1. Employee Matters: Detailed provisions for employee transfers and related obligations - required when employees are being transferred
2. Intellectual Property: Specific provisions for IP transfer and protection - needed when IP is a significant asset
3. Property Matters: Specific provisions for real estate transfer - required when real property is involved
4. Environmental Matters: Environmental warranties and indemnities - needed for businesses with environmental risks
5. Data Protection: Specific provisions for handling personal data - required when significant customer or employee data is involved
6. Regulatory Compliance: Industry-specific regulatory requirements - needed for regulated industries
7. Earn-out Provisions: Structure for additional payments based on future performance - used when price includes contingent payments
8. Break Fee: Provisions for payment if deal fails - used in higher-value transactions with significant due diligence costs
1. Schedule 1 - Business Assets: Detailed list of all assets included in the sale
2. Schedule 2 - Excluded Assets: List of assets specifically excluded from the sale
3. Schedule 3 - Properties: Details of all real estate owned or leased by the business
4. Schedule 4 - Intellectual Property: List of all IP rights owned or used by the business
5. Schedule 5 - Material Contracts: List and details of key business contracts
6. Schedule 6 - Employees: Details of all employees and their terms of employment
7. Schedule 7 - Warranties: Detailed warranties about the business
8. Schedule 8 - Completion Deliverables: List of all documents and items to be delivered at completion
9. Schedule 9 - Sellers' Limitations on Liability: Detailed provisions limiting sellers' liability
10. Appendix A - Form of Transfer Documents: Templates for various transfer documents required at completion
11. Appendix B - Disclosure Letter: Sellers' disclosures against the warranties
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