M&A Deal Closings: Managing Documentation Requirements, Avoiding Pitfalls

Preparing for closing is a key component of the practitioner’s job in M&A transactions. Counsel must prepare and coordinate numerous moving parts to successfully close the transaction.

The purchase agreement, loan agreement and escrow instructions typically outline the terms for closing, including conditions that must be met, documents to be produced, and events that must occur before closing. However, invariably, complications arise on the road to closing for parties and their counsel.

Situations that may create barriers to a deal closing include the failure to simultaneously deliver closing documents, involvement of foreign parties, last-minute shifts in deal terms, or failure to obtain third-party legal opinions in advance. Deal counsel must prepare to navigate these and other potential challenges to ensure a smooth signing and closing.

Listen as our authoritative panel of M&A counsel offers their experiences, perspectives and best practices for meeting closing documentation requirements and anticipating potential pitfalls to ensure the successful closing of an M&A deal.

1. Common closing conditions
   1. Hart-Scott-Rodino Act filing
   2. Regulatory approvals
   3. Pending litigation
   4. Consents to transfer/assign material agreements (customer, supplier, union, etc.)
   5. Employment/retention agreements signed by key employees
      1. Working capital calculations
   6. Post-closing adjustments to purchase price
   7. Non-competes and non-solicitations
   8. Buyer financing contingency
   9. No material adverse changes; specify standard
   10. Satisfactory customer visits
       1. Escrow requirements
   11. Exercise of appraisal rights by no more than X% of shareholders
   12. No material decline in inventory value
   13. No departure of key employees
   14. No notice of disputes with customers or other
2. Documents typically required for closing
   1. Finalized purchase agreement
   2. Exhibits
   3. Schedules
   4. Written consents
   5. Certificates
   6. Regulatory filings
   7. Securities filings
   8. Third-party consents
   9. Opinions
3. Identifying and overcoming potential barriers to closing
   1. Failure to deliver closing documents simultaneously
   2. Foreign participants (Patriot Act requirements)
   3. Last minute adjustments to deal terms
   4. Delay in obtaining third-party legal opinions

The panel will review these and other key issues:

• Typical conditions that must be satisfied before closing
• Common documents that must be produced before closing
• Potential pitfalls to closing and how to deal with them