Assuming that the acquired business is in good health, it is reasonable to expect an increase in business value between signing and completion, when the purchase price can be set entirely or primarily on the basis of the value of the business at the time of signing (or, in the case of a locked box agreement, earlier on the locked box date). Therefore, except when full closing accounts are used to adjust the purchase price, it may make sense for the seller to argue for some increase in the purchase price based on the elapsed time. The outcome depends on the relative bargaining power of the parties, but (if the seller has successfully negotiated), such buoyancy is usually expressed as a fixed daily amount or as a ticker percentage on the purchase price. If a transaction is particularly complicated or the parties need extra time to transfer money, but are interested in „securing“ an agreement, a shared signature and conclusion may seem convenient. However, sharing the signature and conclusion increases the complexity of the legal documents and process (see below) and requires additional time and cost. Overall, the content of mac conditions can be divided into two categories: exchange and conclusion of the split are very common, but should only take place where there is a clear reason to do so; one or more conditions that must be met after the signature of the SPA/APA and before the transaction can take effect after conclusion (see brief summary in „Why conditions may be necessary“ below). For many transactions, exchanges and transactions will take place simultaneously. Simultaneous exchange and conclusion are preferable for the buyer, as this means that the buyer takes immediate control of the target transaction and therefore does not bear certain legal and financial risks that may arise if, after the exchange, legal title and operational control of the objective, the sales contract (SPA) must be maintained with very clear precision: what evidence or circumstances constitute compliance with any condition. How will the final notification of the competent regulatory body be made using the example of competition law/anti-cartel unblocking? Will there be written communication? If so, will the notification confirm the authorization, not raise an objection, or simply indicate that the entity will not transfer the transaction for further consideration? If there is no response from the regulatory authority within a specified period, is it automatically an unblocking? For the development of the SPA, it is important to anticipate all these results in order to avoid that the transaction remains pending. The list of benefits and measures to be implemented after completion (including the transfer of funds) is generally extensive and, although the parties usually establish a window of preparation for completion as soon as the final condition is met (often 5-10 working days), there is always a risk that a party will not be able to: to fulfil all of its closing obligations in a timely manner. Of course, the parties can always agree to delay completion, but they will also want to agree on a standard position within the SPA. As a general rule, this would choose the non-defaulting party the choice between completion despite the lack, postponing completion to a later date, or terminating the SPA (while respecting any rights it may have to claim damages). A buyer will want to rely on the absence of measures between the signing and completion of the transaction, which could either derive value (including cash) from the transaction or affect the financial position or prospects of the business beyond the financial statements.
In addition to any non-leakage provisions that might apply to a locked box agreement, the parties generally agree on a number of measures that are prohibited during the period between signature and conclusion or that require the buyer`s agreement. . . .