One of my first questions when asked to draft the agreement for a client’s new business deal is whether a term sheet (also known as a letter of intent or summary of terms) has been prepared.
A term sheet is a short and sweet document that sets out the parties’ mutual understanding of the main terms they will agree on in a later definitive agreement. The key word is mutual: while you and your counterpart may have agreed a deal over a nice wine dinner, your individual perceptions of the main terms may actually be different than you believe. To the rescue comes the term sheet to crystallize the basic terms on which both parties agree and serve as a road map for drafting the definitive agreement. The act of preparing the term sheet also allows you the contemplative time to assess opportunities or risks you may not have previously considered.
In this way, the term sheet helps prevents misunderstandings at an early stage and saves valuable time and attorney’s fees when drafting the definitive agreement. Once complete, the term sheet symbolically bolsters the parties’ commitment to the deal and focuses negotiations.
Term sheets are commonly used for M&A and financing transactions, as well as commercial deals, such as joint ventures, IP licenses, sales of goods and services, and executive employment agreements. Of course, if your deal is simple, you can skip the term sheet and draft the definitive agreement. If not or if there is any doubt, then use a term sheet.
Here are five tricks of the trade to help you draft term sheets to your advantage:
- Prepare the First Draft. There is no convention as to which party prepares the first draft of a term sheet, but I advise my clients to prepare the first offer because it can become the anchor for negotiation (as demonstrated in compelling psychological studies). Also, if your adversary later seeks to change your terms, you can argue, “Well…I gave up X from my first draft, so I will need Y” in the next draft. Often “X” will be a slight reach, so “Y” may not be the fallback it appears. To use the first draft to your advantage, however, your term sheet should be a reasonable first shot at crafting the basic deal terms (i.e., no excessive overreaching, which may erode your credibility and associated negotiating leverage).
- Make it Non-Binding (Usually). The general rule is that the term sheet should not be legally binding. There are exceptions to this rule, such as binding obligations of exclusivity or confidentiality included in acquisition transactions or other special cases in which a party will intentionally seek to bind the other party in furtherance of its goals. The key is to avoid unintentionally binding obligations. Courts review several factors to determine whether a term sheet is binding, such as the language used, the definitiveness of the terms (e.g., are there remaining terms to be negotiated?), and the context of negotiations. If there are binding provisions, both binding and non-binding provisions should be clearly identified. Non-binding term sheets should not be signed and should also include non-binding boilerplate, such as: “This term sheet is for discussion purposes only and is not intended to be construed as a binding agreement. The parties do not intend to be bound until they enter into definitive agreements regarding the subject matter of this term sheet.”
- Focus on the Big Issues. The term sheet should cover only the main deal points. It should not include every potential contract detail. Remember that this is a short and simple document, preferably one- or two pages maximum. The idea is to agree on the big picture items and defer the details to the definitive agreement. For example, in a minority investment in an LLC, the big issues might be the purchase price, pre-money valuation and number/percentage of outstanding shares to be acquired, director/manager appointment rights, other minority investor rights, pre-closing conditions, and the projected closing date.
- Use Catch-Alls and Conditions to Cover Future Needs. You should use catch-all phrases in the term sheet to preserve your right to include additional terms in the definitive agreement to cover anticipated and unanticipated issues. For example, in a term sheet for a licensing deal, you could say: “The definitive agreement will include additional terms and conditions customarily included in comprehensive [insert type] license agreements.” This sentence gives you the flexibility to include a variety of additional terms in the definitive agreement while staying within the symbolic boundaries of the term sheet. Similarly, if you need to conduct more diligence or obtain financing, then you could say: “The possible transaction is subject to additional due diligence by [buyer] to [buyer’s] satisfaction, as well as [buyer] being able to obtain financing necessary to complete the transaction.” Without these catch-all and conditions provisions, your counterpart may argue that terms you later request should not be included in the definitive agreement because they were not mentioned in the term sheet.
- Use Assumptions to Protect Against Unknowns. At the term sheet stage, the parties have typically not conducted substantial due diligence and open questions remain regarding known unknowns and possibly unknown unknowns. You should use assumptions in the term sheet to hedge against this uncertainty. For example, if your willingness to pay a price for a target company is based on certain assets being transferred to the company at closing, then state the assumption in the term sheet so you have the ability to change the price without disrupting the deal if the assumption proves false.
By using these five tricks of the trade (and the advice of a good lawyer), you should be able to prepare a simple term sheet that serves as a foundation for the successful negotiation and drafting of the definitive agreement for even the most complex of your business deals.