Signing and closing of business purchase and sale operations
Company purchase and sale agreements, known as SPAs, are complex legal documents that set out the conditions for the acquisition of a company. In these operations, it is common to work with two fundamental concepts: the signature and the closure.
We are going to explain the difference between both milestones, their relevance, and the responsibilities that are assumed by the parties in each of the steps. The meaning of the signature and the closure can be confused, as well as the scope that falls to each of them, and for this reason we consider it interesting to address this analysis.
However, in this case, we opted to make a simple exposition of the issue, so that the reader unfamiliar with processes of this type can understand some of the essential concepts of the process in a business sale. In other articles, also available to the reader, we delve into more technical aspects.
Signature or Signing
The signature, also known as signing, is the moment in which the parties involved in the contract agree and sign the document, generating a legal relationship between them. This moment has a transcendental value, since it creates an obligation to comply with the terms established in the contract. However, signing the SPA does not imply that the transaction has been completed. In many cases, the signing is just the first milestone in a process that can take several weeks or months.
Upon signing the contract, a series of conditions precedent are established that must be met for the transaction to continue. These conditions usually include the approval of the company’s governing bodies, obtaining financing, among other aspects. Even the preparation of a due diligence on the company being sold, although the usual thing is that the in-depth audit has been carried out prior to the signing of the SPA.
Cierre o Closing
The closing, also known as closing, is the moment in which all the conditions established in the sales contract are met and the effective transfer of ownership of the company from the seller to the buyer is carried out. Closing does not occur automatically after signing, but there may be a period of time between the two phases known as the “interim period.”
It is not the purpose of this article to go into the assessment of the different closing mechanisms, but we provide a link to another article for more information on the matter “Mechanisms for closing corporate operations”.
Interim period
During the interim period, and before reaching the closing date, those actions that have been committed by the parties in the signed agreement must be carried out. These actions may include, for example, the transfer of funds, the delivery of documents or the obtaining of permits and licenses necessary for the operation of the company.
In some cases, the acquiring party requires certain adjustments to the workforce, either the signing of new contracts, the acceptance of new conditions by employees, or the restructuring of part of the workforce.
Likewise, it is common for the buyer to require the seller to seek acceptance from key suppliers and customers during the interim period regarding the change of control that will take place in the sold company.
On other occasions, the interim period is used to eliminate certain contingencies through the regularization of issues affecting the tax and accounting area, or to adapt the company’s activity to the corresponding regulations.
All these issues, such as those mentioned above, may lead the process to a double scenario of signing and closing. To the extent that each of them can be appreciated by the buyer to demand that the process be closed at the two milestones mentioned above, with an interim period that allows different commitments to be fulfilled. And that is why it is often the buyer who imposes the design of the operation on two different dates.
Importance of signing and closing in business sale and purchase agreements
The signing and closing are crucial moments in the process of buying and selling companies, since they establish the commitments between the parties and allow the effective transfer of the ownership of the company. Both at signing and closing, the parties assume obligations that must be considered. This is why it is necessary to have the appropriate legal and financial advice throughout the whole process of buying and selling companies in order to identify the risks and guarantee the fulfillment of the commitments.
Conclusions
It is important to keep in mind that signing and closing are not isolated processes, but are related and should be considered together. The signing of the contract does not necessarily imply that the transaction is complete, and closing does not always occur automatically after signing. In many cases, there is a period of time between the two processes in which a series of activities are carried out to ensure that all the conditions established in the contract are met.
Both actions have important legal and financial implications that must be assessed and negotiated in defense of the interests of each party.
