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Buyer Protection Provisions in M&A Purchase Agreements Beyond Indemnification, Reps and Warranties

Purchase Price Adjustments, Contingent Payments, Accounts Receivable Repurchase, Inventory Audit, Retained Liabilities

Recording of a 90-minute premium CLE video webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Wednesday, October 13, 2021

Recorded event now available

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This CLE course will guide deal counsel in negotiating and drafting provisions in private M&A purchase agreements that provide protections to buyers after the transaction is consummated beyond indemnification for breaches of representations and warranties. The panel will outline approaches for purchase price adjustments, contingent and deferred consideration, past-due accounts receivable, and other protections available to buyers in private M&A transactions to shift or minimize transaction risk.


In many private M&A transactions, buyers tend to rely on an indemnity from sellers to compensate them for losses arising from sellers' breach of the representations and warranties provisions in purchase agreements. Many times, sellers insist that this indemnity is the sole remedy available to buyers, and it has become increasingly popular for buyers to purchase representations and warranties insurance policies. However, buyers and their counsel often negotiate additional protections beyond this indemnity.

These buyer protection provisions include purchase price adjustments, contingent consideration, deferred consideration, past-due accounts receivable repurchase obligations, excluding certain liabilities in asset transactions, setoff rights, specific performance, and fraud claims. Counsel should stay on top of the latest thinking when it comes to these buyer protection provisions.

Listen as our panel of experienced M&A attorneys discusses strategies used by buyers to shift certain liabilities to sellers and minimize risk in private M&A transactions.



  1. Why buyers should not rely solely on an indemnity from sellers, plus other considerations with respect to representations and warranties insurance policies
  2. Buyer protection provisions beyond an indemnity from sellers
    1. Purchase price adjustments
    2. Earnouts and other contingent consideration
    3. Escrows, holdbacks, and other security
    4. Specific provisions for accounts receivable
    5. Specific provisions for asset deals, including excluded liabilities and wrong-pockets provision
    6. Setoff rights
    7. Specific performance and claims for fraud


The panel will review these and other key issues:

  • What buyers should keep in mind when negotiating purchase price adjustments to get the value they bargained for
  • How buyers can leverage contingent consideration to protect themselves against risks related to the future performance of a target company
  • When buyers should consider using escrows and holdbacks and ways buyers can minimize uncertainty regarding the collectability of past-due accounts receivable


Jennings, J. Hillyer
J. Hillyer Jennings

King & Spalding

Mr. Jennings specializes in mergers, acquisitions and other significant corporate transactions. He represents public...  |  Read More

Patel, Nikul
Nikul Patel

King & Spalding

Mr. Patel specializes in mergers, acquisitions and other significant corporate transactions. A Senior...  |  Read More

Stewart, Michelle
Michelle Stewart

King & Spalding

Ms. Stewart represents both target and acquiring companies in M&A transactions and has experience with equity and...  |  Read More

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