We hear daily that perhaps some new treatment might be the end, only to then hear conflicting opinions. Some argue and debate regarding health and safety versus economic disaster. Through all of this uncertainty, we must still advise clients, and attempt as best we can to keep business moving. Attorneys can play a very important role in helping clients maneuver by planning for the long term.
One of the first major issues I have come across attempting to close deals is how to get documents executed. It has caused me to reanalyze whether certain documents need things like notaries, and to look at what types of electronic signatures would be appropriate for the deal. Another important concept in the era of social distancing is making sure that counterparts are authorized, and it may even be prudent to have separate signature pages.
I have found searching Law Insider for counterparts and electronic signature clauses to be helpful.
A quick search found the following, “This Agreement may be executed in multiple counterparts, each of which will be deemed to be an original but all of which will constitute one and the same agreement. This Agreement may be executed by facsimile or electronic signature in portable document format (.pdf) and a facsimile or electronic signature in portable document format (.pdf) will constitute an original for all purposes.”
Another clause I found interesting is the following because it doesn’t require delivery of an original signature, which can be difficult to coordinate with people in separate locations, “This Agreement may be executed and delivered in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other parties, it being understood that all parties need not sign the same counterpart. This Agreement may be executed by facsimile or .pdf signature by any party and such signature shall be deemed binding for all purposes hereof without delivery of an original signature being thereafter required.” If you are having signatures on separate pages or page, as appropriate, it may be best as in this clause to specifically mark that the signature will be on the following page, and it may be best as well to mention email as an option: “Further, this Agreement may be executed by transfer of an originally signed document by facsimile, e-mail or other electronic means, any of which will be as fully binding as an original document. (Signatures on following page.)”.
Of course, not all documents will be appropriate for an electronic signature. Some might require a notary, so a state’s laws regarding remote notarization should be consulted, and perhaps online providers utilized. Many title companies, lenders, etc. may still want a “wet” signature, i.e. a non-electronic physical signature. Also, some documents, such as estate planning documents, might have special requirements for witnesses and physical presence that make electronic signature impossible. However, in the midst of this pandemic, there have been certain executive orders and other legislation that may apply in your state, and they should be consulted, but beware of expiration dates of any such orders.
Having clauses that allow for any follow up documents, post-closing items, amendments, etc. to be executed electronically and in counterparts may be appropriate as we do not know the length of the pandemic. Again, this certainly won’t be appropriate for all documents, but consideration should be given to incorporate useful clauses to allow electronic signing when appropriate.