A letter of intent is often used in the purchase and sale of a business to set forth the framework for the negotiation of definitive transaction documents; and closing of a transaction. Typically, a letter of intent does not create a binding contractual obligation to purchase or sell the business. However, a non-binding letter of intent does impose on the parties the obligation to negotiate in good faith transaction documents which contain the material terms set forth in the letter of intent. If a party breaches its obligation created by the letter of intent, the other party will have a claim to recover transaction expenses incurred but will not have a right to the “benefit of the bargain” as though there were a binding obligation to purchase or sell the business.
From a strategic perspective, it is advantageous for a buyer to execute a letter of intent as early as possible, because a properly drafted letter of intent will grant the exclusive right to a buyer to complete due diligence and to negotiate definitive transaction documents. This exclusive right to negotiate is a binding provision, exposing the seller to contractual damages if breached by the seller. It gives tremendous bargaining power to the buyer because during the exclusivity period a seller is required to negotiate exclusively with the buyer, and cannot leverage one buyer against the other with respect to price and deal terms. For this reason, a seller will want to delay the execution of a letter of intent as long as possible, and, if the company is in high enough demand, possibly avoid the execution of a letter of intent altogether. A buyer, however, often, requires exclusivity before a buyer will spend the funds necessary to complete due diligence and, will not proceed with a transaction if a letter of intent is not signed.
The differing objectives of the buyer and seller not only impact the timing of the execution of the letter of intent but also its content. From the buyer’s perspective, the exclusivity provision is the primary motivation in moving forward with a letter of intent. Therefore, the buyer would like to include as few material terms as possible, because once a letter of intent with an exclusivity provision is signed, the deal is only going to improve for the buyer, as due diligence is completed, issues come to light, and transaction documents are negotiated. In fact, from the buyer’s perspective, the best possible position would be to enter into an exclusivity agreement without any terms. While a shrewd buyer might propose this, a seller should never enter into a “naked” exclusivity agreement.
A well represented seller will recognize that the high water mark for its bargaining power is before the execution of a letter of intent. Therefore, unlike a buyer, who would like to keep the letter of intent as minimal as possible, the seller will want to include the material terms of the deal as well as any terms which the seller views as critical to a successful transaction. A seller does not benefit strategically from waiting until after the letter of intent is signed before raising critical deal terms. A good example is indemnification. A buyer will want to avoid the topic to the extent possible. At the same time, a seller will want to clearly delineate any caps on indemnification and other limitations on indemnity such as, possibly, baskets and de-minimus claim requirements.
Careful consideration the strategic underpinnings of a letter of intent with experienced corporate counsel will assist the buyer and seller in determining the optimal content and time to execute a letter of intent in a particular transaction.
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