The Share and Asset Purchase Agreement (SAPA) is a sophisticated transaction document used in Malaysian business acquisitions where both company shares and specific assets are being acquired simultaneously. This hybrid agreement is particularly useful when the transaction structure requires both corporate ownership transfer and direct asset acquisition, common in complex M&A deals under Malaysian jurisdiction. The document encompasses detailed provisions for share transfer mechanics, asset identification and transfer, purchase price allocation, warranties for both shares and assets, and completion requirements. It must comply with Malaysian corporate and contract law, including the Companies Act 2016, while addressing practical aspects such as employee transfers, intellectual property rights, and regulatory approvals. The SAPA is typically used in situations where buyers wish to acquire both control of a company and specific assets that may be held outside the target company structure.
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1. Parties: Identification of buyer, seller and any guarantors
2. Background: Context of the transaction, including description of the target company and assets
3. Definitions and Interpretation: Defined terms and interpretation rules
4. Sale and Purchase: Core transaction terms for both shares and assets
5. Purchase Price: Consideration amount, payment terms, and any adjustment mechanisms
6. Conditions Precedent: Prerequisites to completion of the transaction
7. Pre-Completion Obligations: Parties' obligations between signing and completion
8. Completion: Mechanics and requirements for closing the transaction
9. Seller's Warranties: Warranties regarding the shares, company and assets being sold
10. Buyer's Warranties: Warranties from the buyer, including capacity to purchase
11. Limitations on Liability: Caps, thresholds and time limits on warranty claims
12. Tax Covenants: Tax-related indemnities and obligations
13. Confidentiality: Obligations regarding transaction and business information
14. Announcements: Requirements for public statements about the transaction
15. Post-Completion Obligations: Ongoing obligations after completion
16. Boilerplate Provisions: Standard legal provisions including notices, governing law, etc.
1. Employee Matters: Terms regarding transfer of employees - include if employees are transferring
2. Intellectual Property: Specific provisions for IP transfer - include if significant IP assets
3. Property: Provisions regarding real property transfers - include if real estate involved
4. Competition/Regulatory Approvals: Include if transaction requires regulatory clearance
5. Transitional Services: Include if seller will provide services post-completion
6. Foreign Investment Provisions: Include for cross-border transactions
7. Environmental Matters: Include for businesses with environmental risks
8. Data Protection: Include if personal data is being transferred
9. Non-Compete Provisions: Include if seller restrictions are required
1. Sale Shares Details: Description of shares being transferred
2. Sale Assets List: Detailed inventory of assets being transferred
3. Excluded Assets: List of assets explicitly excluded from the sale
4. Properties: Details of any real property included in the sale
5. Intellectual Property Rights: Schedule of IP rights being transferred
6. Material Contracts: List of key contracts being transferred
7. Employee Information: Details of transferring employees
8. Completion Requirements: Detailed closing checklist and requirements
9. Warranties: Detailed warranties given by the seller
10. Form of Transfer Documents: Templates for share transfer forms and other transfer documents
11. Purchase Price Adjustments: Detailed mechanics for price adjustment calculations
12. Third Party Consents: List of required third party approvals
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