私募和并购常用词汇表以及解释.doc

A Glossary of the Most CommonPrivate Equity/M&A/LBO Legal DocumentsBy Ken Fagan, MBAA freelance French to English Private Equity Legal TranslatorDocument PurposeAllotment letter In the case of a capital increase of a quotedfirm, this is the letter sent to theshareholders to inform them of their rights(to subscribe for the increase, sell warrants,etc.)Acquisition agreement Document defining the acquisitionagreement between the target and thebuyer. This document contains all of theacquisitions terms and conditions for thetwo parties: exchange of securities,payment in cash by the relevant due datesand clauses covering the continuedpresence of the shareholders in the newcapital.Asset purchase agreement Agreement further to which one or morepurchasers buy assets and taken on certainliabilities (related to the purchased assets)from one or more sellers.Book (or “Sale Memorandum”) The selling document that is prepared bythe investment bank retained on behalf of abusiness seller (vendor) It describes thebusiness to be sold and will be circulated toa (usually restricted) group of potentialpurchasers, who will typically include atleast 2 or 3 buyout houses.By-laws (of a private equity fund) In addition to the general provisions thatdescribe the funds objectives and the legal,accounting and financial requirements, theby-laws include the terms of themanagement agreement specific to eachfund.Co-investment agreement An agreement that sets out the terms onwhich several parallel vehicles comprisinga fund (each suiting a different class ofinvestor) may or may not invest in parallel.Commitment Letter (or “MandateLetter”)A letter from the bank(s) to the borrowersetting out the basis on which the bank(s)will, in principle, make debt facilitiesavailable to the borrower and on whatterms.Disclosure letter The document sent by the seller (and/or theguarantors) to the beneficiary of the Reps &Warranties in which the seller definesexceptions to the representations of saidReps & Warranties and to which it will notbe possible to apply the Reps & WarrantiesFees letters Both senior and mezzanine lenders willenter into fees letters with Newco that setout the terms of the arrangement,underwriting, commitment and other feespayable for the provision of the senior andmezzanine debt.Information memorandum (and/or“Placing memorandum”)This document is drawn up once theGeneral Partner is satisfied that there isdemand for its product (fund). It describesthe offering and its terms in detail Sets outthe key attributes of a company, usuallyassociated with soliciting buyers orinvestors.Inter-creditor agreement Agreement entered into between, amongothers, borrowers, secured creditors, intragroupcreditors and investors to regulate asbetween each other the priority of theirsecurity and claims and, more generally, ofany payment due to them by the borrowersunder the finance documentsInvestment agreement Otherwise known as the “shareholderagreement” or the “subscriptionagreement”.Letter of Intent The letter submitted to the seller by apotential buyer to indicate the lattersintention to acquire the target or to lookinto the possibility of acquiring the target,subject, in general, to the performance ofcertain due diligence and audits needed todetermine and/or refine the price offered.The seller is often asked to countersign theLetter of Intent in order to authorise thepotential buyer to carry out audits and tocovenant to offer it exclusive negotiationrights.Limited Partnership Agreement(“LPA”)The document used to form the LPMaster agreement In an acquisition transaction involvingmore than one country, refers to the masteragreement to be adapted or applied in eachcountry concerned, in accordance withlocal rules (ex. All countries in which theacquired group has subsidiaries).Mezzanine subscription agreement A subscription agreement to which areattached the terms and conditions of themezzanine bonds.Memorandum of Understanding(“MOU”)A pre-sale draft agreement entered intobetween the seller and the potential buyer,defining the outline, the main terms and theprincipal conditions in which the sale couldtake place.Offering Memorandum (“OM”) A document issued by or on behalf of a PEfirm with the object of raising money fromthe investment community. Also referred toas the Private Placement Memorandum.Non-disclosure agreement (“NDA”) An undertaking to keep proprietaryinformation confidential.Private Placement Memorandum(“PPM”)See “Offering memorandum” (“OM”).Prospectus IPO A prospectus is essentially an invitation oroffer to the public to subscribe for or buythe securities of a company. A prospectusmust contain all relevant information aboutthe company making the IPO, and must beRepurchase agreement An agreement in which a holder of sharesagrees that the person from whom itpurchased the securities may repurchasethem in certain events.Sale and purchase agreement (“S&P” or“SPA”)The principal document that sets out themain terms and conditions of the sale andpurchase of a company or business andallocation of the risk associated betweenthe buyer and seller.Sale Memorandum (see “Book) See “Book”Senior Loan Agreement Typically a syndicated agreement betweenseveral banks setting forth the terms of thesenior loan and senior revolving creditfacility and will usually include a guaranteeobligation for each obligor to guarantee theindebtedness of other members of the group(if any).Service agreements Employment contracts that govern therelationship between management teammembers and the company.Shareholder loan instrument Newco will establish the terms andconditions of the shareholder bonds, settingout the terms of the shareholder bonds thatthe private equity house will subscribe forin order to supply a substantial part of the“equity” of the transaction.Shareholders agreement Agreement setting out the terms of thefunds participations (including, thenumber of shares to be acquired, price to bepaid, rights attaching and restrictions andcovenants to be placed on the portfoliocompany.Subscription agreement Agreement pursuant to which one or moreinvestors undertake to subscribe to andwhereby the competent corporate body (orthe members thereof) undertakes to decide(or to vote in favour of), an upcoming issueby one or more target companies of shares,bonds, warrants or other financialinstruments to such investors. It will set outthe type and amount of instruments to beissued, the representations & warranties,the indemnification in the event ofmisrepresentation and may also include post-closing covenants.Term Sheet A document prepared by the investor,setting out the proposed terms of theinvestment. It is not legally binding butdoes represent a serious intent to invest.Trust indenture This document constitutes the high yieldbonds themselves and empowers the trusteeto act as trustee on behalf of thenoteholders.w ww.