1. Representations and Warranties Must Match the Diligence Record
In a stock deal, the target remains the same legal entity after closing and keeps its existing obligations. The SPA should therefore match the diligence record and disclose known exceptions clearly.
Representations, Warranties, and Disclosure Schedules
| Review Area | What to Compare | Why It Matters |
|---|---|---|
| Financial statements | Debt, working capital, reserves, off-book items | Tests the financial rep against the records. |
| Taxes and disputes | Returns, assessments, claims, notices | Identifies facts that may need clear disclosure. |
| Compliance | Licenses, filings, inquiries, regulator letters | Shows where compliance language needs limits. |
Legal due diligence should feed into the SPA. A disclosure schedule may qualify a representation under the agreement's disclosure and cross-reference rules. Read each exception with the clause it modifies. Known facts should be tied to the rep they change, not left in a schedule with no clear link.
Capitalization, Title, and Regulatory Reps
- Match the stock ledger and cap table against issued shares, options, warrants, conversion rights and other equity interests.
- Check transfer limits, shareholder agreements, first refusal rights, liens, and required consents before treating shares as transferable.
- Confirm corporate authority under the law governing the entity.
- For a regulated target, test each rep against licenses, filings, investigations, and applicable change-of-control rules.
If the target is a FINRA member, an ownership or control change may require analysis under Rule 1017. An officer is not personally liable merely because of title, so any separate payment undertaking should be reviewed on its own terms.
2. Indemnity Terms Must Address Liability and Collection
A representation has limited value without a workable recovery path. Read indemnity, survival, escrow, insurance, and exclusive-remedy terms together. The stock purchase agreement should state which claims survive and how they are pursued.
Caps, Baskets, Survival, and Carve-Outs
| Provision | Core Question | Review Point |
|---|---|---|
| Basket | When do covered losses become payable? | Check threshold and aggregation rules. |
| Cap | How much exposure remains? | Confirm which claims are inside or outside the cap. |
| Survival | How long can a claim be made? | Compare periods across reps, warranties, and covenants. |
| Carve-out | Which limits do not apply? | Read fraud and specified rep language closely. |
These provisions interact. A long survival period may add little if the recovery source disappears early, while a carve-out may remove a negotiated limit. A low cap can still leave a valid claim with no fund to pay it.
Seller Insolvency and Escrow Mechanics
- Assess whether the seller is likely to remain collectible through the relevant survival period.
- Check the escrow amount, release schedule, claim notices and treatment of disputed claims.
- Determine whether escrow is the sole recovery source or supplements direct indemnity and insurance.
- Align the escrow agreement with the SPA so notices, release dates, and dispute procedures do not conflict.
An escrow agreement can reserve funds for claims, but it does not eliminate collection risk outside the escrow. The release schedule also matters.
3. Closing Conditions and Post-Closing Economics Need Precise Rules
Deal disputes often begin with terms that become difficult to apply after signing. Material adverse effect clauses, earn-outs, working-capital adjustments, and restrictive covenants need definitions that work with actual records and events.
Material Adverse Effect and Closing Conditions
- Read the defined term with its exclusions, exceptions, and any disproportionate-impact language.
- Separate a representation breach from failure of a closing condition because the contractual consequences may differ.
- Check who bears the risk of market, industry, regulatory, or target-specific changes before closing.
- Review governing-law and forum clauses instead of assuming where a closing dispute will be heard.
The SPA should identify what must remain true at closing and which changes affect the duty to close.
Earn-Outs and Seller Restrictions
- Define revenue, EBITDA, working capital, accounting methods, and permitted adjustments used for contingent payments.
- State who prepares the calculation, who may inspect supporting records, and how objections are resolved.
- Address operating discretion when post-closing decisions can affect an earn-out.
- Draft seller non-compete and nonsolicitation terms around the goodwill and business interests actually transferred.
Sale-of-business restrictions are evaluated differently from ordinary employment restraints, although scope and duration still matter. If the buyer runs the firm after close, the earn-out terms should say how those acts affect the sum due. Broader mergers and acquisitions planning may be needed when financing and regulatory approvals overlap.
4. Frequently Asked Questions
Can a buyer bring a warranty claim if diligence raised doubts before closing?
Potentially. Pre-closing doubts do not necessarily defeat a claim for breach of an express warranty when the warranty remained part of the bargain. The agreement, disclosure record, and facts known before closing still matter.
Is an escrow required in a private stock purchase?
No. Escrow and holdbacks are negotiated terms. The parties may instead use direct indemnity, representation and warranty insurance, other security, or a combination of recovery tools.
What happens if the seller cannot pay an indemnity claim after closing?
The contractual claim may remain, but collection can become difficult. Pre-closing review should address seller collectibility, escrow terms, insurance, and other agreed recovery sources.
Are seller non-compete clauses automatically enforceable after a stock sale?
No. A covenant tied to a business sale and its goodwill may be evaluated differently from an employment restraint, but enforceability still depends on governing law, wording, scope, duration, and deal facts.
5. Review the Spa Risk Allocation with Sjkp
SJKP's attorneys can review representations, disclosure schedules, indemnity limits, escrow mechanics, earn-out terms, and capitalization records before execution. For parties seeking a stock purchase agreement review attorney in Manhattan, the review can focus on what must be disclosed, what survives closing, and what remedy remains if a representation later proves inaccurate.
21 Aug, 2026
