Preliminary documents
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Is it customary to prepare a letter of intent or term sheet and, if so, to what extent are they binding on both parties?

Yes. A letter of intent (sometimes called Heads of Terms or a Memorandum of Understanding) is typically signed by the parties. It is usually not legally binding, save in respect of certain matters such as any exclusivity obligation, confidentiality, governing law, costs, etc.

Does a term sheet, in this context, customarily include provisions on exclusivity, break fee or confidentiality?
  • Exclusivity: It is customary to include binding exclusivity provisions in the letter of intent or term sheet.
  • Break fee: Break fees are not commonly included in private M&A transactions.
  • Confidentiality: It is customary to include binding confidentiality provisions in the letter of intent or term sheet.
Are exclusivity, break fee and confidentiality provisions supplemented with separately negotiated agreements?

Confidentiality agreements and exclusivity agreements are often negotiated as separate agreements in private M&A transactions.

Is there a duty or obligation to negotiate in good faith?

English contract law does not impose a general duty to negotiate in good faith. Subject to any agreement between the parties to the contrary (perhaps in a letter of intent), there is usually no recourse or liability to pay damages if a purchase agreement is not signed. On the other hand, failure to complete a purchase agreement that has been signed will usually result in liability for the party in default to pay wasted costs, etc., and, depending on the provisions of the purchase agreement, perhaps also damages for loss of bargain.