The point currently only needs brief documentation.
Record the finding in the data room. If new information appears during the process, update the legal assessment.
Due diligence
Commercial agents and distributors in a business acquisition
Commercial agents and distributors in a business acquisition: review indemnity, termination, exclusivity and customer continuity.
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BRANDAUER Rechtsanwälte
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20 July 2026 · Mag. Bernhard Brandauer, Rechtsanwalt
Commercial agents, distributors and sales partners can secure customer access in a business acquisition or create a material risk. The key question is whether customer relationships really remain with the target or depend on external partners. This article complements customer and supplier dependence change-of-control clauses data-room preparation
Review sales risk
How critical is the sales structure for the deal?
Answer two questions on sales dependence.
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Does revenue depend materially on agents or distributors?
The sales structure determines whether a contract is merely operationally relevant or transaction-critical.
All paths at a glance
Overview of all answers.
The finding is well prepared for negotiation and contract drafting.
If documents, economic relevance and responsibility are clear, the point can be reflected in warranties, pricing logic or closing plan.
Sharpening is needed before signing.
Unclear evidence should not be hidden behind generic wording. The point needs a specific contract effect or a clear delivery plan.
Why the sales structure belongs in due diligence
Why the sales structure belongs in due diligence
The buyer does not automatically acquire stable customer relationships. If material revenue runs through agents, distributors or exclusive sales partners, the legal basis must be reviewed.
Key points include term, termination, territory protection, exclusivity, minimum purchase obligations, commission model and practical replaceability of the partner.
Indemnity, termination and transfer
Indemnity, termination and transfer
Commercial agency law can raise indemnity questions when an agency relationship ends. Whether a claim exists depends on the concrete agreement, customer base and reason for termination.
In an asset deal, contract transfer must also be reviewed. In a share deal, the contracting party usually remains the same, but change-of-control clauses can still matter.
Which points belong in the SPA and price
Which points belong in the SPA and price
Sales risks can be addressed as warranties, indemnities, price adjustments or closing deliverables. If dependence is high, the buyer needs to know whether partners accept the deal and whether key contracts continue.
The SPA warranty catalogue should not refer only generally to customer relations but should capture material sales contracts specifically.
Review grid
Classify sales contracts in the acquisition
Typical points for data room and contract.
| Point | Why it matters | Contract effect |
|---|---|---|
| Dependence Dependence | How much revenue runs through the partner? | Price and risk analysis |
| Termination Termination | Can the contract be terminated? | Condition precedent or warranty |
| Indemnity Indemnity | Could an indemnity claim arise? | Reserve or indemnity |
| Exclusivity Exclusivity | Does territory protection block growth? | Review contract adjustment |
The documents, economic relevance and contract structure in the individual case are decisive.
Practical note: Strong sales dependence is not automatically a dealbreaker. It becomes dangerous when it remains invisible in the data room.
FAQ
Frequent questions.
Do all sales contracts need to be in the data room? +
Material contracts should be complete and current. For smaller contracts, a structured list may be sufficient if no special risks exist.
Is a commercial agent indemnity always payable? +
No. It depends on contract, activity, customer base and termination. Generic answers are risky.
What differs between share deal and asset deal? +
In a share deal, the contracting party often remains the same. Still, change-of-control rules or consent requirements may be important.
Topics
Commercial agentsDistributorsIndemnityDue diligence
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