{"id":20018,"date":"2026-07-21T09:00:32","date_gmt":"2026-07-21T09:00:32","guid":{"rendered":"https:\/\/seegman.com\/?p=20018"},"modified":"2026-07-14T16:39:54","modified_gmt":"2026-07-14T16:39:54","slug":"ancillary-agreements-in-ma-how-to-coordinate-the-spa-the-shareholders-agreement-and-management-agreements","status":"publish","type":"post","link":"https:\/\/seegman.com\/en\/ancillary-agreements-in-ma-how-to-coordinate-the-spa-the-shareholders-agreement-and-management-agreements\/","title":{"rendered":"Ancillary agreements in M&A: how to coordinate the SPA, the shareholders\u2019 agreement and management agreements"},"content":{"rendered":"\t\t
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Ancillary agreements in M&A: how to coordinate the SPA, the shareholders\u2019 agreement and management agreements<\/h1>\t\t\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t\t\t\t<\/div>\n\t\t<\/div>\n\t\t\t\t\t<\/div>\n\t\t<\/section>\n\t\t\t\t
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In an M&A transaction, the SPA usually concentrates a significant part of the negotiation. However, especially in small-market transactions, the real balance of the deal also depends on other documents that structure the continuity of the business after closing.<\/p>\n

In small-market M&A transactions<\/a>, the focus of the negotiation is usually placed on the sale and purchase agreement. In practice, however, the economic and legal balance of the transaction rarely ends with the SPA. The real value of the transaction is usually built through a set of interrelated agreements which, when considered together, articulate the transfer of the business, its continuity and the future alignment of the parties.<\/p>\n

Shareholders\u2019 agreements, management agreements, transitional services agreements, leases and other operational contracts are not ancillary documents in a minor sense. In small-market transactions, where personal and operational dependence is particularly intense, these instruments are often decisive to preserve the value of the business after closing. Treating this documentation as a mere supplement to the SPA tends to create imbalances that usually become apparent in the post-closing phase.<\/p>\n\t\t\t\t\t\t\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t\t\t

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Main documents usually coordinated in a transaction<\/strong><\/h2>\n

<\/p>\n\n\n\n\n\n\n\n
Document<\/strong><\/td>\nMain function<\/strong><\/td>\nRisk if poorly coordinated<\/strong><\/td>\n<\/tr>\n
SPA<\/td>\nRegulates the transfer, price, representations and warranties, and risks linked to the past.<\/td>\nOverloading it with post-closing obligations or mixing liability regimes.<\/td>\n<\/tr>\n
Shareholders\u2019 agreement<\/td>\nStructures future coexistence, corporate governance, reinforced majorities, exits and deadlocks.<\/td>\nReopening matters already settled in the SPA or creating contradictions between remedies.<\/td>\n<\/tr>\n
Management or founder agreements<\/td>\nRegulate retention, functions, incentives, non-compete undertakings and future involvement.<\/td>\nExtending personal commitments to sellers who are only divesting.<\/td>\n<\/tr>\n
Operational agreements \/ TSA<\/td>\nFacilitate an orderly transition and preserve business continuity.<\/td>\nCreating indefinite dependency or leaving critical issues outside the contractual perimeter.<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

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The SPA as the axis of the transaction<\/strong><\/h2>\n

The sale and purchase agreement performs a clearly defined function: regulating the transfer of shares or assets, the price and the allocation of risks linked to the past. In small-market transactions, this function must be understood as part of a broader contractual architecture, but it should not be diluted by incorporating undertakings that respond to different legal logics. In this respect, the correct configuration of warranties in share purchase agreements (SPAs)<\/a> is particularly relevant as a tool for allocating the residual risk of the transaction.<\/p>\n

This separation is not merely functional but systematic, as the SPA and the shareholders\u2019 agreement respond to different liability regimes. The SPA structures an essentially indemnity-based system, linked to closing and to the correction of deviations from what was agreed, whereas the shareholders\u2019 agreement is intended to regulate ongoing relationships and structural control mechanisms after closing.<\/p>\n

From this perspective, overloading the SPA with obligations that belong to the post-closing phase not only complicates its interpretation, but may also lead to inappropriate or directly ineffective enforcement mechanisms.<\/p>\n

The shareholders\u2019 agreement and the organisation of the common project<\/strong><\/h2>\n

Where the seller remains in the share capital, the shareholders\u2019 agreement to protect investment and prevent conflicts<\/a> becomes the central instrument for regulating the shareholders\u2019 relationship after the transaction. In small-market transactions, its content is usually more limited than in larger transactions, but it concentrates particularly sensitive issues: corporate governance rules, reinforced majorities, exit mechanisms, dividend policy or deadlock scenarios.<\/p>\n

Proper coordination with the SPA is essential to avoid overlaps or contradictions. It is not unusual to find shareholders\u2019 agreements that reopen matters already settled in the sale and purchase agreement, or SPAs that incorporate commitments that actually belong to the future relationship between shareholders. These overlaps introduce unnecessary friction into the liability regime and the application of contractual remedies.<\/p>\n

From a technical perspective, the separation between both instruments responds to the need to keep the liability regimes applicable at each stage of the transaction coherent, clearly separating risks relating to the past from the organisation of the project going forward. Where the shareholders\u2019 agreement includes reinforced majorities, exit mechanisms or deadlock scenarios, it may also be useful to review contractual mechanisms for resolving corporate deadlocks<\/a>.<\/p>\n

Management and founder agreements<\/strong><\/h2>\n

In many small-market M&A transactions, the value of the business is closely linked to the continuity of certain key individuals. Senior management agreements, retention arrangements and non-compete clauses are not, in these cases, ancillary elements, but essential components of the economic proposal of the transaction.<\/p>\n

From a technical perspective, it is particularly important to determine where these commitments are documented. In structures involving several sellers, where only one of them remains linked to the project after closing, it is essential to correctly individualise personal commitments. The indiscriminate inclusion of retention or non-compete commitments in the SPA may alter the liability regime of sellers who are merely divesting and have no involvement in future management.<\/p>\n

Practice suggests documenting these commitments in specific agreements with the person concerned, thereby preserving the coherence of the SPA and avoiding an unjustified extension of liability among parties with clearly differentiated economic and functional positions.<\/p>\n

Other operational agreements: transition and value preservation<\/strong><\/h2>\n

Together with the SPA, the shareholders\u2019 agreement and management agreements, small-market transactions commonly involve other agreements required to ensure an orderly transition of the business, such as transitional services agreements, leases of properties not transferred or certain agreements with the seller or related companies.<\/p>\n

These agreements perform a clear value-preservation function and allow the buyer to assume control without immediate operational disruption. However, their design requires particular care. If poorly coordinated, they may introduce inconsistencies into the overall contractual package and make it more difficult to properly articulate and enforce the agreed compliance and reaction mechanisms.<\/p>\n

Practical checklist for coordinating the contractual documentation<\/strong><\/h2>\n

As a practical criterion, before closing the documentation of a transaction it is useful to review whether each obligation has been placed in the appropriate instrument and whether the overall contractual package remains coherent.<\/p>\n