Signing and closing of company purchase and sale transactions

Business purchase agreements, known as SPAs, are complex legal documents that establish the conditions for the acquisition of a company. In these transactions, it is common to work with two fundamental concepts: signing and closing.

We will explain the difference between both milestones, their relevance, and the responsibilities assumed by the parties in each of the steps. The meaning of signing and closing, and the scope of each of them, can be confused, and that is why we consider it interesting to address this analysis.

However, in this case we have opted for 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 sale and purchase of companies. In other articles, also available to the reader, we will go deeper into more technical aspects.

Firma o 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, as it creates an obligation to comply with the terms established in the contract. However, the signing of the SPA does not imply that the transaction has been completed. In many cases, the signature is only the first milestone in a process that may extend over several weeks or months.

Upon signing the contract, a series of conditions precedent are established that must be met in order for the transaction to proceed. These conditions usually include the approval of the company’s governing bodies, the obtaining of financing, among other aspects. Even the elaboration of a due diligence on the company to be sold, although it is usual for the in-depth audit to have been carried out prior to the signing of the SPA.

Cierre o Closing

Closing, also known as closing, is the moment when all the conditions set forth in the purchase and sale agreement are fulfilled and the effective transfer of ownership of the business from the seller to the buyer takes place. 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 further information on the subject “Corporate Transaction Closing Mechanisms“.

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 business purchase and sale contracts

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.

José Luis Casajuana Ortiz
Socio de J. L. Casajuana y responsable del área internacional

03/05/2023