The same considerations as regards legal and other due diligence would apply so as to manage the risk of any unintended liabilities being triggered, and to make sure that the legal transfer of the relevant assets is completed.Conclusion It can be very tempting just to ‘backdate’ documents, with the intention of making life easier. With a bit of thought and investigation, is it often possible to achieve a result which gets close to the desired result and also lets you sleep at night.As from that date, customers may have been invoiced by the transferee, employees may have been paid by the transferee, and accounting entries may have been made to reflect the purchase price payable for the assets.Together, these factors may indicate that the beneficial interest in the relevant assets has passed from a legal point of view.Even though the transaction may have already happened in substance, it’s important to find out what the other legal consequences may be, so that steps can be taken to mitigate the risks.These two general areas mean that some legal due diligence should be carried out to identify and address areas for corrective action.For example, the selling and buying companies participating in a business transfer may agree between themselves to treat the transaction as if it happened at the previous year end.This could involve putting in place a business transfer agreement now, which is dated when it is actually signed.
For example, there may have been a transfer of trade from one group company to another on a particular date.
My views are my own and do not necessarily reflect the views of the Commission or any other member of the staff. In addition to our investigations, there is substantial criminal interest in options matters from United States Attorneys' Offices nationwide.
In recent months, the SEC has brought two enforcement actions one relating to Brocade and another involving Comverse.
You will also need to consider two other things from a legal perspective.
Firstly, additional formalities may be needed to complete the legal transfer of assets or granting of rights.