DOSSIER · CORP

Risk Allocation in Deals

The governance record and the contract terms that determine who absorbs the loss: minutes, indemnities, representations, earnouts, and insurance clauses.

Brief stack

In this dossier

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CORP-01 · 01

Board Minutes and Written Consents: Creating a Defensible Corporate Record

8 MIN · CORP

Minutes are written on a calm day and read on a hostile one. This brief sets out what belongs in the corporate record, when a written consent works, and the defects that undo both.

Corporate governance formalities are state law; Delaware and Model Act states share the basic architecture but differ in detail and in recent amendments.
Delaware permits board action by written consent in lieu of a meeting, but that consent must be unanimous — unlike stockholder consent.
Minutes should record that a decision was informed and deliberate; they should not record legal advice, deliberative debate, or draft conclusions.

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CORP-02 · 02

Director and Officer Indemnification: Bylaws, Agreements, and D&O Insurance

8 MIN · CORP

Protection for directors and officers is a stack of three instruments that fail in different places. This brief maps what each layer covers and what falls through the seams between them.

Indemnification is state corporate law; Delaware Section 145 is used here as the named example rather than a national rule.
Advancement of defense costs is a separate right from indemnification and is usually the one that matters first, and most.
Bylaws can be amended by the board; an individual indemnification agreement is a contract that cannot be changed unilaterally.

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CORP-03 · 03

Representations and Warranties in an Asset Purchase Agreement

8 MIN · CORP

A representation is not a promise about the future. It is a dated statement of fact that allocates a specific risk — and the qualifier attached to it usually decides who absorbs that risk.

Representations do three jobs at once: force disclosure before signing, support a closing condition, and define the indemnity that survives closing.
Asset deals do not automatically leave liabilities behind; successor-liability doctrines under state and federal law reach through the structure.
Knowledge and materiality qualifiers move risk to the buyer; disclosure schedules move it more quietly and more completely.

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CORP-04 · 04

Earnout Provisions in Business Sales: Metrics, Control, and Dispute Risk

9 MIN · CORP

An earnout bridges a price gap by paying later. This brief works through the four terms that decide whether it pays at all: the metric, the covenants, the accounting, and the referee.

Earnout disputes rarely concern whether the business performed. They concern what the contract defined as performance and who controlled the measurement conditions.
Metric choice sets the manipulation risk: revenue is hardest to distort, EBITDA invites allocation fights, and milestones can be blocked by buyer inaction.
Post-closing operating covenants are the seller's only real protection, because the implied covenant of good faith cannot rewrite terms the parties expressly agreed.

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CORP-05 · 05

Commercial Insurance Clauses: Additional Insureds, Waivers, and Indemnity

9 MIN · CORP

A contract can promise more protection than any policy delivers. This brief maps the gap between the insurance clause you negotiated and the coverage that responds when a claim arrives.

A certificate of insurance is evidence, not coverage. Only the policy and its endorsements create rights, and certificates say so on their face.
Standard additional-insured endorsements cover liability caused in whole or part by the named insured, not the additional insured's own independent negligence.
Primary and non-contributory status requires an endorsement. Contract language alone does not override the policy's other-insurance condition.

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CORP-10 · 06

Post-Closing Purchase Price Adjustments: Working Capital and Disputes

10 MIN · CORP

The true-up looks like arithmetic and behaves like a contract dispute. This brief covers how the target is set, why methodology fights beat math fights, and what the referee is actually allowed to decide.

A working capital adjustment has three load-bearing parts: a defined target, an agreed accounting methodology, and a referee mechanism with a bounded mandate.
Most disputes come from methodology conflicts — reserves, cut-offs, and classification — rather than from arithmetic errors in the closing statement.
Objection windows are short and usually drafted as conditions, so a missed deadline can make the other side's statement contractually final.

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CORP-11 · 07

Successor Liability: When a Buyer Inherits the Seller's Problems

9 MIN · CORP

The point of an asset purchase is to choose which liabilities come along. Four common-law exceptions and a stack of statutes say otherwise. This brief maps where the general rule breaks.

The general rule is that an asset buyer takes the assets without the seller's liabilities, and that rule holds in most transactions most of the time.
Four exceptions recur across states: express or implied assumption, de facto merger, mere continuation, and a transaction structured to escape debts.
A minority of states apply a product-line or continuity-of-enterprise theory that can reach a buyer with no continuity of ownership at all.

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