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A share purchase agreement — internationally known as a Share Purchase Agreement (SPA) — records all agreements regarding the sale of shares in a private limited company (BV). The notarial deed of transfer only regulates the legal transfer; the SPA regulates the real deal: purchase price, terms and conditions, guarantees, indemnities, any earn-out, and non-compete clause. For an SME deal, this is often 20–60 pages; for larger transactions, it is much more.
The short answer
- What: Contract between seller and buyer containing all agreements regarding the sale of shares.
- Indispensable: the notarial deed alone regulates the transfer, not the guarantees and risks.
- Content: purchase price, warranties, indemnities, earn-out, non-compete clause, closing conditions.
- Length: 20–60 pages for SMEs, much more for major deals.
The most important parts
1. Purchase price and payment
- Fixed price or variable (earn-out).
- Payment at closing, partially later (escrow), or conditional.
- Any adjustments based on working capital or net debt at the closing date.
2. Conditions for closing
Requirements that must be met for the transaction to proceed:
- Approval by relevant authorities (e.g. ACM for major deals).
- Financing confirmation from the buyer.
- No material changes in the BV since termsheet.
- Bank approval (if existing loans).
3. Warranties
Statements by the seller regarding the condition of the BV. Examples:
- No pending lawsuits other than those mentioned.
- Annual accounts provide an accurate picture.
- No concealed debts or claims.
- Ownership rights to shares.
- Full compliance with tax obligations.
In the event of a breach: the buyer may recover damages, typically for a period of 12–24 months after closing.
4. Indemnities
Specific risks for which the seller remains fully liable. Often:
- Tax claims from the period before closing (up to 5 years).
- Specific disputes or environmental pollution.
- Pension obligations.
5. Earn-out
Variable purchase price linked to the future performance of the BV (revenue, EBITDA over 1–3 years). Risk sharing: the buyer does not pay the full price upfront, the seller receives more upon good performance.
6. Non-compete and non-solicitation clause
For the salesperson: do not compete or approach customers for 2–3 years. Crucial — especially if the salesperson has been a key person.
Specific points of attention for SME deals
- Liability ceiling: the seller wants to limit maximum liability (often 20–50% of the purchase price).
- Time limits on warranties: usually 12–24 months, tax warranties up to 5 years.
- De minimis threshold: small claims (e.g. < € 5,000) are not included.
- Disclosure letter: list of known exceptions to warranties.
- Escrow / guarantee account: part of the purchase price set aside for potential claims.
What is NOT in it?
A spa does not arrange:
- The legal transfer itself (notarial deed).
- The shareholders' agreement for future shareholders.
- Employment contracts for director/salesperson (separate management agreement).
How much does a spa cost?
- SME deal (< € 5 million): legal SPA guidance € 5,000 – € 25,000 per party.
- Medium-sized deal (€5–50 million): €25,000 – €100,000.
- Major deal (> € 50 million): several hundred thousand to millions.
The seller usually pays their own legal costs; sometimes it is agreed that certain costs will be shared.
Honest recommendation
A SPA is not a template document. The agreements determine where things go wrong in the years after closing — claims, disputes, earn-out discussions. Invest in an experienced M&A counsellor or lawyer. A strong SPA for the seller prevents 20% liability; for the buyer, it prevents paying a 20% price for risks unknown.
For the broader context: how do I sell my BV and share transfer.
Frequently Asked Questions
A contract between seller and buyer for the sale of shares in a private limited company (BV). Regulates the purchase price, guarantees, indemnities, earn-out, non-competition clause, and conditions for closing. English term: Share Purchase Agreement (SPA).
The notarial deed only regulates the legal transfer of the shares. The SPA regulates all agreements surrounding the transaction: price, guarantees, indemnities, earn-out, and conditions. Both are necessary — the SPA is signed first, after which the notary executes it.
Claims made by the seller regarding the state of the BV: no pending lawsuits, annual accounts correct, no concealed claims, ownership rights to shares, tax obligations met. In the event of a breach, the buyer may recover damages, typically 12–24 months after closing.
Specific risks for which the seller remains liable without limitation, often outside the general warranty period. Examples: tax claims from the period before closing (up to 5 years), specific disputes, pension obligations, environmental risks.
Typically 12–24 months after closing for general guarantees. For tax guarantees, often up to 5 years. For “fundamental guarantees” (ownership of shares), sometimes unlimited. You negotiate the exact terms in the SPA.
A maximum amount of claims that the seller can receive under the warranties — often 20–50% of the purchase price. Protects the seller against claims that would consume the entire purchase price.
For an SME deal, €5,000 – €25,000 per party for legal advice. For mid-sized deals, €25,000 – €100,000. For large international deals, running into hundreds of thousands of euros. Engage an experienced M&A lawyer or attorney — a sloppy SPA often costs more in claims than a good one in fees.
