The adviser role must be defined first.
Describe whether the mandate is advice, brokerage, process management or a combination.
Transaction
M&A advisers and business brokers in a business sale
Adviser mandate, success fee, exclusivity, confidentiality and conflicts should be clear before the sale process starts.
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9 July 2026 · Mag. Bernhard Brandauer, Rechtsanwalt
Sellers often involve M&A advisers, corporate finance advisers or business brokers. Such support can provide buyer access, process discipline and market comparison. Legally, the first question is what mandate is granted and which fee is payable for which success.
Not every adviser contract is the same. Some mandates are pure advice, others resemble brokerage. Depending on the structure, exclusivity, success fee, expenses, confidentiality, conflicts and break costs need attention.
This article complements our note on auction processes and our article on LOI and NDA.
Classify the mandate
Is the adviser mandate robust?
Answer two questions on role and fee.
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Is it clear whether the adviser advises, brokers or manages the process?
The fee depends strongly on role and scope of work.
All paths at a glance
Overview of all answers.
The mandate is prepared in a structured way.
Review success fee, exclusivity, termination, confidentiality and conflicts in the draft agreement.
The economic consequences remain unclear.
Regulate fee trigger, expenses, exclusivity, tail period, break costs and confidentiality before the mandate starts.
Advice, brokerage or process management
Advice, brokerage or process management
An M&A adviser may prepare materials, approach buyers, structure an auction or support negotiations. A business broker may focus more on bringing about a transaction. The legal classification follows the actual services.
Success fee, expenses and tail period
Success fee, expenses and tail period
The success fee should state what counts as success. Is a letter of intent enough, is signing required or only completion? Later transactions with introduced buyers and partial sales should also be addressed.
Exclusivity, confidentiality and conflicts
Exclusivity, confidentiality and conflicts
An exclusive mandate can create process discipline. It can also bind the seller if the adviser is not active enough. Duration, termination rights and measurable duties are therefore important.
Contract check
Clarify adviser mandate before launch
This overview shows the key points in an M&A adviser contract.
| Point | Why it matters | Contract consequence |
|---|---|---|
| Role Role | Legal classification follows activity. | Describe scope and responsibility. |
| Fee Fee | Unclear success definitions lead to disputes. | Regulate signing, completion and tail period. |
| Exclusivity Exclusivity | Binding can help or block. | Agree duration, termination and activity duties. |
Whether brokerage law, service contract or a mixed form applies depends on the actual scope of work.
Practice note: An adviser mandate should be signed and understood before buyers are approached. After the first buyer contact, the seller often has less leverage on fee questions.
FAQ
M&A advisers and business brokers.
When is a success fee payable? +
That depends on the contract. It should say whether LOI, signing, closing or another event is enough and whether later transactions with introduced buyers are covered.
Is an exclusive mandate useful? +
It can be useful for a structured process. The seller should define duration, termination rights, activity duties and exceptions.
What confidentiality duties should apply? +
The adviser should be bound by broad confidentiality covering company data, buyer lists, negotiation status, price expectations and internal planning.
Topics
M&A adviserBusiness brokerSuccess feeBusiness sale
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