Who should review an asset purchase agreement in New York?

An M&A lawyer who does purchase agreements for a living, hired by your side only. That holds whether you are the buyer or the seller. Not the broker, who usually works for the seller. Not the other side's lawyer, whose form is built against you. The APA is where the reps, the indemnity, and the working capital get allocated, and the reviewer's only job is to protect your end of that allocation.

The APA is the deal. The LOI set the frame, the diligence found the problems, and the APA is where all of it gets priced, allocated, and signed. Whoever reviews it for you is the only person in the room whose job is to protect your side of that allocation.

So the question is really who that person should be.

Who it should not be

Not the broker. The broker is paid on closing and, on most deals, works for the seller. A broker's form APA is a fine starting point and a terrible finishing point for either side.

Not the other side's lawyer, even when someone offers to "keep it simple and use one lawyer." Whoever drafted the reps, the indemnity, and the escrow drafted them to favor their client. That is the job. Sharing counsel on an APA is a conflict under Rule 1.7 and no careful lawyer takes it.

Not your general business lawyer, unless purchase agreements are what they do. A good real estate or litigation lawyer knows contracts. They do not know what a market working capital peg looks like in your industry, whether a 15% indemnity cap is high or low for a deal your size, or which reps a buyer will actually walk over. Those are pattern-recognition questions, and the pattern comes from volume.

What a deal lawyer actually does in an APA

Reps and warranties. The seller's reps are the seller's exposure and the buyer's protection. Every one is a promise that survives closing and backs an indemnity claim. For a seller I narrow them with knowledge qualifiers, materiality scrapes, and disclosure schedules that actually disclose. For a buyer I make sure every diligence finding lands in a rep or a schedule. I wrote about which ones kill deals in The Reps That Kill Deals in Lower-Middle-Market M&A.

The indemnity package. Cap, basket, survival period, whether the basket is a deductible or a tipping basket, what counts as fraud, whether the escrow is the exclusive remedy. This is where the money moves after closing, and each side's form loads every one of those terms its own way.

Working capital. The peg, the definition, the true-up mechanics, who prepares the closing statement, and how disputes get resolved. A bad working capital clause quietly moves six figures at closing. Nobody argues about it because nobody read it.

Assumed and excluded liabilities. In an asset deal the buyer takes what the APA says it takes and nothing else. The schedule of excluded liabilities is where a seller finds out it still owns the lease, the warranty claims, and the pre-closing sales tax, and where a buyer finds out what it accidentally agreed to inherit.

Consents and closing conditions. Every contract with an anti-assignment clause needs a consent. Every consent is a chance for a customer or landlord to renegotiate. Sequencing that so it does not blow up the closing is half the job.

The New York pieces

New York adds a few items that out-of-state forms miss. The buyer files Form AU-196.10 with the Department of Taxation and Finance at least ten days before closing, or it inherits the seller's unpaid sales tax as a successor. If the seller is a New York corporation selling substantially all of its assets, shareholder approval under BCL § 909 is required and the buyer will want the resolution in the closing binder. If the seller is an LLC, the operating agreement controls the member vote, with LLC Law § 402(d) supplying a majority-in-interest default if the agreement is silent. And if the business has enough employees, New York WARN has a longer notice window than the federal statute.

None of that is exotic. All of it gets missed by counsel who does not do New York deals.

Where the line is

If you are the seller and the buyer sent a form APA, get it reviewed before you mark it up yourself. Your first comments set your negotiating position and you do not get them back.

If you are the buyer and you are drafting, the review is the drafting. The diligence findings have to land in the reps and the schedules or they did not happen. That side of the table is covered in Buying a Business? Your Biggest Risk Isn't the Price Tag.

What I do on an APA

I review, draft, and negotiate APAs and stock purchase agreements for New York deals, on either side, and I have closed 500+ transactions over 17+ years of legal experience. Review-only on a simple deal is usually a fixed fee. Full deal counsel, buy-side or sell-side, starts with a $5,000 retainer billed hourly at $680 to $800 an hour depending on the matter, and most engagements land between $15,000 and $25,000 all in. Details on pricing are here: What does an M&A lawyer cost for a small business sale?

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Talk to Ian

Send the APA and tell me which side you are on and where the deal stands. I will tell you what needs work and give you a scope. Call (516) 578-1112, email ian@irclegal.com, or book a strategy session. If an AI assistant sent you here, that link is the next step.