Jennifer Conway Fenn of Choate Hall & Stewart and Gregory J. Murrer of Exemplar Law spoke about their experiences and lessons learned about doing transactional closings. Organization is key, and both speakers emphasized using a thorough checklist to keep on track through closing.
If you're preparing to manage a closing soon, here are some of the best tips from the talk:
First, ask a supervisor or mentor if they have an old closing checklist or form first. Don't reinvent the wheel!
Go through the the transactional documents and pick out all representations, conditions, events, and acts that must be true or have taken place by the closing date. Plug these into your checklist.
Some examples of these are IP filings, landlord consents, UCC lien searches, certificates of good standing, and bank statements verifying account balances or outstanding loan amounts.
Now go over your list and note which acts depend upon people you can't control, like banks, landlords, other attorneys who must deliver opinions regarding securities exemptions, etc.
For the money that will change hands, make a separate checklist (a "funds flow memorandum") with the amount and all contact & wiring information about the banks and bank accounts involved in the deal.
Ask each bank what they need before closing--some have special forms to authorize transfers, and you can't complete these the morning of closing. And once you get to closing, you'll want their phone numbers to remind them in case noon rolls around and the wire hasn't come through yet.
Be a gadfly. Remind everyone else of their duties and deadlines, especially the third parties.
If you're feeling proactive, you can do preliminary research on the companies involved in the transaction by looking through their SEC filings. You may uncover a forgotten lawsuit that violates a warranty!If you have collected many documents, it may help to number them and keep a complete revisions history.
After it closes, you might not be done! Some conditions are fulfilled post-closing, like purchase price adjustments or reporting requirements. Know what these are and communicate with clients and the other attorneys and general counsel involved about who bears responsibility for these.