The Merger and Acquisition Agreement is a fundamental document used in corporate transactions where one company seeks to acquire or merge with another entity in New Zealand. This agreement serves as the primary transaction document that governs the entire acquisition process, from initial terms through to completion and post-completion obligations. It is essential for transactions falling under New Zealand jurisdiction and must comply with local regulatory requirements including the Companies Act 1993, Takeovers Code (where applicable), and Commerce Act 1986. The agreement typically includes detailed provisions on purchase price mechanisms, warranties and indemnities, conditions precedent, conduct of business before completion, and completion mechanics. It requires careful consideration of New Zealand-specific elements such as Overseas Investment Act implications for foreign investors, employee protection under local employment law, and competition law considerations.
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1. Parties: Identifies and provides full legal details of all parties to the agreement
2. Background: Sets out the context of the transaction and brief description of the business being acquired
3. Definitions and Interpretation: Defines key terms used throughout the agreement and establishes interpretation rules
4. Sale and Purchase: Core transaction terms including what is being sold (shares/assets) and the purchase price
5. Purchase Price and Payment: Detailed terms of consideration, payment mechanics, and any price adjustment mechanisms
6. Conditions Precedent: Prerequisites that must be satisfied before completion can occur
7. Pre-Completion Obligations: Parties' obligations between signing and completion, including conduct of business requirements
8. Completion: Mechanics of closing the transaction, including timing, location, and deliverables
9. Warranties and Representations: Seller's assurances about the business, assets, and liabilities being acquired
10. Limitations on Claims: Restrictions on warranty claims including time limits, thresholds, and caps
11. Tax Indemnities: Specific indemnities relating to tax matters and allocation of tax risks
12. Confidentiality and Announcements: Obligations regarding confidential information and public communications
13. Non-Competition and Restraints: Restrictions on seller's future competitive activities
14. General Provisions: Standard boilerplate clauses including notices, amendments, governing law
1. Earn-out Provisions: Include when part of purchase price is contingent on future performance
2. Employee Matters: Include when specific arrangements for employee transfers or retention are required
3. Intellectual Property: Include when IP assets are material to the transaction
4. Real Property: Include when real estate assets are material to the transaction
5. Environmental Matters: Include for businesses with significant environmental risks or compliance requirements
6. Transitional Services: Include when post-completion services are required from seller
7. Break Fee: Include when parties agree to compensation if deal fails under specific circumstances
8. Material Adverse Change: Include when specific events might allow buyer to terminate
9. Debt and Working Capital Adjustments: Include when purchase price adjusts based on completion accounts
10. Regulatory Compliance: Include when specific regulatory regime applies to target business
1. Target Company Details: Corporate information, shareholding structure, and subsidiaries
2. Warranties: Detailed warranties and representations about the business
3. Properties: List and details of real estate owned or leased
4. Material Contracts: Key commercial agreements affecting the business
5. Intellectual Property: Schedule of IP rights owned or licensed
6. Employee Information: Details of employees, employment terms, and benefits
7. Financial Statements: Recent financial statements and management accounts
8. Permitted Encumbrances: List of accepted liens, charges, and encumbrances
9. Completion Deliverables: Documents and items to be delivered at completion
10. Disclosed Matters: Specific disclosures against warranties
11. Form of Resignation Letters: Template resignation letters for outgoing directors
12. Working Capital Calculation: Agreed methodology for calculating working capital
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