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Purchasers under an APA may waive any of the closing conditions, but should consider carefully before doing so. Eagerness to close a transaction may lead to problems later if due diligence has been inadequate and closing conditions were waived in the interest of expediency.

The SEC filing requirements that accompany Form 8-K include a document which discusses several of the APA closing conditions. These included the delivery of the signatures, certificates, instruments and other deliverables by the Seller, the performance by the Seller of all covenants and conditions set forth in the Asset Purchase Agreement and that the Seller recieve all approvals, consents and waivers that are needed to consummate the Sale. The Asset Purchase Agreement also notes that each of the closing conditions may be waived by the Buyer at or before Closing.

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Take away:

  • Purchasers that enter into an APA agreement should conduct proper due diligence before waiving closing conditions.

 

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