We can distinguish two very important moments in an acquisition deal. Firstly, the moment of signing when the parties sign the acquisition agreement (SPA). Often the signing will be accompanied by the inclusion of suspensive conditions and preclosing obligations. The closing is the transfer of ownership and payment of the purchase price after the suspensive conditions and pre-closing obligations have been fulfilled. This transfer of ownership is formalised in a closing agreement.
In the share deal the formalities for the transfer of ownership are simple, namely: payment of the purchase price and transfer of shares. The transfer of shares is evidenced by a registration in the share register. The name of the shareholder will change into the name of the buyer. This completes the closing.
If we compare this with an asset deal, then the formalities are similar to the share deal, namely: the payment of the purchase price, but also the conformal delivery of the sold goods according to Article 1604 of the Civil Code. Here, the seller does have an obligation to deliver the property by for example handing over the keys of the property sold. It must always be ensured that in an asset deal the transfer actually takes place.
At the time of the closing it is common for parties to sign a closing memorandum. This is a document in which the parties confirm a number of things, such as: that the conditions precedent have been fulfilled, the necessary approvals have been given for the transaction, the shares/assets have been delivered, the purchase price has been paid, at the time of the closing the representations and warranties are still valid, the parties have fulfilled all their contractual obligations up to the closing date, etc,
