Contract and completion procedures assistance
Contract assistance aims to advise on the financial, accounting and tax aspects of the draft sale and purchase agreement related to the acquisition of the target company, including consideration of related risk areas and issues identified based on the previously completed due diligence analyses.
During provision of contract assistance services, we typically focus on the following aspects of the draft sale and purchase agreement:
- We comment on price adjustments under the SPA during the negotiation process as well as on warranty and indemnity clauses;
- Structure of any price adjustment mechanism;
- Warranty and indemnity claims from the accounting and tax perspectives;
- Accounting principles for closing accounts;
- Mechanics of closing accounts process;
- Advice on an appropriate level of normal working capital;
- Definition of primary financial aspects (including inter alia net debt, normal working capital, EBITDA);
- Advice on potential issues relating to earn out mechanism.
Our support to the investors in the transaction completion procedures includes inter alia:
- Advise in respect of accounting procedures during transaction closing;
- Support in the preparation of the completion accounts;
- Verification of the completion accounts (prepared by the target company, by the vendor or by the purchaser) with the objective of assisting in determining the appropriate purchase price adjustments based on the transaction sale and purchase agreement.
SPA legal support
We are able to support our client – either seller or buyer – during negotiation of terms of the transaction. We can develop the first draft of the transaction documents or propose amendments to the legal text prepared by other party to protect interest of our client.
We work with legal experts from KPMG network and other partners to bring in expertise in foreign law where required, including law of England and Wales commonly used in transactions.
When supporting the client in the negotiations, we focus on shares transfer mechanic, conditions precedent, mechanism of enforcement of obligations, legal remedies available to the parties – including indemnities, representations and warranties, which are of paramount importance for each M&A deal.
Significant recent changes in the international and Ukrainian tax legislation make tax structuring an important exercise for both the buyer and the seller in any deal involving Ukrainian businesses. In a successful deal, it is important to find a mutually acceptable purchase/ sales and ownership structures that comply with the tax laws and regulations and are mutually acceptable for both parties. Our team of dedicated tax professionals routinely advises on the tax aspects of cross-border deals including, among other things, development of tax efficient holding and financing structures, analysis of and comments on the Ukrainian tax implications arising from sale and further repatriation of profits from Ukraine, compliance with the anti-BEPS and ATAD rules and requirements, etc. If the transaction is structured as an asset deal, the tax team usually advises on feasible options for acquiring Ukrainian assets as well as the associated VAT implications, tax basis of assets for tax depreciation/ amortisation purposes, etc.