Dutch vs US Share Purchase Agreements

Risk allocation, disclosure and closing mechanics when a US-style SPA is used for a Dutch target

US and Dutch share purchase agreements use many of the same deal concepts: purchase price, representations and warranties, disclosure, indemnities, escrows, caps, baskets, survival periods, interim covenants, closing conditions and restrictive covenants.

The difference is not the vocabulary. The difference is implementation.

A US-style SPA can often be used as the commercial starting point for the acquisition of a Dutch company. But it must be reviewed against Dutch corporate law, Dutch disclosure practice, Dutch authority rules, employee and works council issues, and the Dutch notarial deed that transfers legal title to shares in a Dutch BV.

The practical question for US buyers, private equity funds, strategic acquirers and lead counsel is not whether the US SPA should be rewritten entirely. The better question is which provisions can remain as drafted, which require Dutch-law qualification and which must be implemented outside the SPA through Dutch corporate approvals, notarial documentation, powers of attorney, KYC and shareholder register updates.

This article is part of Dutch M&A Compared: Dutch Deal Practice in a US and UK Context and connects to US SPA Templates in Dutch M&A: What Needs to Change?, Disclosure Letters in Dutch M&A Transactions, Locked Box and Completion Accounts in Dutch, US and UK Deals, Indemnities and Liability Limitations in Dutch and Common-Law SPAs and Dutch Notarial Mechanics in Cross-Border M&A.

The main differences in practice

A US SPA and a Dutch SPA may look similar, but the main differences are not cosmetic. They appear in how the SPA allocates risk and how the Dutch share transfer is actually implemented.

US SPAs are usually more contract-driven; Dutch deals require a separate corporate and notarial implementation layer.
A US SPA often functions as a detailed transaction manual. In a Dutch BV share deal, the SPA remains central for the commercial terms and risk allocation, but it does not by itself transfer legal title to the shares. Dutch corporate approvals, powers of attorney, KYC, notarial documentation and the shareholder register must be integrated into the closing process.

Representations, warranties, disclosure and buyer knowledge must be recalibrated for a Dutch target.
US-style representations and warranties can be useful, but they should be checked against Dutch corporate records, share capital, title to shares, authority, employment, tax, pensions, works council issues, permits, data protection and IP. The SPA should also state clearly how disclosure works: whether specific disclosure, general disclosure, data room disclosure, buyer knowledge and due diligence reports qualify warranty claims. This is where a US disclosure schedule and a Dutch disclosure letter may serve a similar function, but the legal effect must be drafted expressly.

The liability package should distinguish between different types of claims.
US SPAs often contain elaborate indemnification mechanics, including survival periods, caps, baskets, deductibles, escrows, fraud carve-outs and exclusive remedy clauses. Dutch SPAs can use many of these tools, but they should be structured carefully. General warranty claims, fundamental warranties, tax claims, leakage claims, specific indemnities and known due diligence issues should not all fall into one undifferentiated liability regime. Escrow or holdback can be useful, but should be tied to a specific recovery concern rather than included automatically because it appears in a US form.

Purchase price mechanics require a deliberate choice between true-up protection and price certainty.
US buyers often expect closing accounts, working capital adjustments and cash/debt adjustments. Dutch and European PE transactions frequently use a locked box. Both approaches can work for a Dutch target. Completion accounts give post-closing true-up protection. A locked box gives price certainty, but requires clear leakage protection, permitted leakage definitions and a reliable locked-box date. For more detail, see Locked Box and Completion Accounts in Dutch, US and UK Deals.

Signing-to-closing risk should combine MAC/MAE, interim covenants and local process issues.
US SPAs may include detailed MAE conditions and operational covenants between signing and closing. In a Dutch transaction, these provisions must be aligned with Dutch board authority, ordinary course operations, regulatory standstill obligations, Vifo where relevant, and employee or works council timing. The buyer can protect the value of the target before closing, but should not assume operational control before the shares have transferred.

Seller undertakings and restrictive covenants must be proportionate.
Non-compete, non-solicit, non-hire and confidentiality provisions are common in both US and Dutch SPAs. For a Dutch target, the scope should be justified by the deal context and limited by duration, territory, activities, persons covered and legitimate business interest. This is particularly relevant where a founder, DGA or management shareholder remains involved after closing.

Corporate authority is checked differently in a Dutch BV.
US documents often rely on officer certificates, secretary certificates, incumbency certificates and board approvals. For a Dutch BV, counsel should review the articles of association, Trade Register authority, management board approvals, shareholder approvals, possible supervisory board rights, powers of attorney and any restrictions in shareholder agreements or financing documents. Authority is not only a diligence point; it is also a closing deliverable.

The Dutch notarial deed is the title transfer instrument.
This is the clearest Dutch implementation point. In a Dutch BV share deal, the SPA creates the contractual obligation to sell and purchase the shares. Legal title normally transfers by Dutch notarial deed. The deed, KYC process, powers of attorney, legalisation or apostille requirements, authority evidence, funds flow and shareholder register must therefore be coordinated with the SPA and the central closing agenda.

Governing law does not remove mandatory Dutch corporate mechanics.
A US buyer may prefer a US-law SPA, and in some cross-border transactions a foreign-law SPA may be considered. But Dutch corporate law will still govern key implementation steps involving Dutch BV shares, corporate authority, articles of association, notarial execution and shareholder records. In many Dutch BV share deals, Dutch law is therefore the more practical governing law for the SPA.

How to work from a US SPA without losing Dutch implementation

A US SPA should not be discarded just because the target is Dutch. In many transactions, the better approach is to keep the US commercial structure and add the Dutch implementation layer.

That means separating the review into three questions.

First, which US provisions work commercially and can remain largely unchanged? This may include much of the purchase price structure, indemnity logic, covenant framework and dispute process.

Second, which provisions require Dutch-law adaptation? This often includes authority, title to shares, disclosure, employee matters, works council issues, restrictive covenants, governing law, corporate approvals and closing conditions.

Third, which steps do not belong in the SPA alone and require separate Dutch implementation? This includes board and shareholder resolutions, powers of attorney, notarial deeds, KYC, shareholder register updates, Trade Register filings and post-closing governance actions.

This approach respects the work of US lead counsel while making the Dutch transaction legally executable.

Practical conclusion

Dutch and US SPAs share many commercial concepts, but they should not be treated as interchangeable documents.

The main difference is that a US SPA often assumes that contractual drafting can carry most of the transaction mechanics. In a Dutch BV share deal, the SPA must be coordinated with Dutch corporate law, notarial title transfer, authority requirements, disclosure practice, employee or works council timing and local closing deliverables.

For US deal teams, the practical rule is simple: keep the US commercial discipline, but map every key provision against Dutch implementation before signing and closing.

FAQ

Can a US-style SPA be used for a Dutch target acquisition?

Yes. A US-style SPA can often be used as the commercial framework, but it must be adapted for Dutch corporate law, disclosure practice, authority, employee or works council issues and notarial closing mechanics.

Does signing the SPA transfer shares in a Dutch BV?

No. Signing the SPA usually creates the contractual obligation to transfer. Legal title to shares in a Dutch BV is normally transferred by Dutch notarial deed.

Are US representations and warranties suitable for a Dutch SPA?

They can be, but they should be adapted to the Dutch target, Dutch corporate records, authority mechanics, employee matters, tax, disclosure and notarial transfer.

Are disclosure schedules the same as Dutch disclosure letters?

They serve a similar risk-allocation function, but the SPA must define the effect of specific disclosure, general disclosure, data room disclosure and buyer knowledge.

Should a Dutch acquisition use locked box or completion accounts?

Both are possible. The choice depends on the business, transaction process, buyer and seller leverage, accounts quality, working capital volatility and desire for price certainty.

Can a US-law SPA govern the sale of Dutch BV shares?

It may be possible in some structures, but Dutch corporate law and notarial transfer mechanics will still apply to key implementation steps. Dutch law is often the more practical governing law for a Dutch BV share deal.

About Dirk de Waard

Dirk de Waard is a Dutch corporate, M&A and venture capital lawyer, a dual Dutch-US national and partner at Venture Lawyers in Amsterdam. He advises US buyers, sellers, private equity funds, strategic investors and international law firms on Dutch M&A, SPA adaptation, disclosure, risk allocation, corporate approvals and notarial closing mechanics.

ViottaLaw is Dirk’s personal insights platform. Legal services are provided through Venture Lawyers.

Need to adapt a US SPA for a Dutch target?

A US-style SPA can remain the commercial framework for a Dutch acquisition, but Dutch corporate law, disclosure practice, authority requirements and notarial closing mechanics must be integrated before signing and closing.

Dirk de Waard advises US deal teams and international counsel on Dutch SPA adaptation and implementation. Contact Dirk at dirk.dewaard@viottalaw.com to review which provisions can remain unchanged, which require Dutch-law qualification and which need separate Dutch corporate or notarial implementation.