Letter of intent and confidentiality agreement for a business acquisition: What clauses should be included?

The letter of intent is very often preceded by a confidentiality agreement that aims to protect the information and documents belonging to both parties. This includes financial data, customer and supplier lists, and intellectual property information that will be communicated in the due diligence process.

"This confidentiality agreement is essential for the potential buyer to have access to the information he or she needs to formulate a letter of intent, to submit an offer or, if necessary, to withdraw interest. The potential buyer therefore agrees that the information may be used only for the purposes of evaluating the proposed transaction," explains Pierre Marquis, Senior Counsel at BDC.

The letter of intent

The letter of intent generally acts as a catalyst to advance the acquisition process.

The document will reassure the seller of your willingness to submit a potential bid, will help lay down the key elements of the transaction and, if needed, can also assure you a period of exclusivity during which you will be able to conduct the negotiations.

"The letter of intent sets out the terms of the acquisition process and provides insight into what the final offer might look like," says Marquis.

The document is of a legal nature; however, it is not intended to be fully binding, unless otherwise expressly stipulated.

"At this stage of the negotiations, the buyer and the seller are usually not required to make an official offer to proceed with a transaction. Nevertheless, where so provided, the letter of intent will create binding obligations on one party or the other, particularly with regard to confidentiality and exclusivity," Mr. Marquis explains.

Clauses to be included in a letter of intent

The letter of intent may include general clauses and more specific ones, such as:

• the nature of the proposed transaction
• identification of the people involved
• a price range for the acquisition, subject to amendment, and the terms of payment (the final price will be determined only once the due diligence process has been completed)
• the duration of exclusivity of the negotiations, i.e. the period during which the seller agrees not to solicit or consider other offers for purchase without first speaking with the buyer, and the penalties associated with breaching this commitment
• the distribution and responsibility for costs inherent to the proposed transaction, whether closed or not, which may vary from $10,000 to $100,000 or more depending on the nature and complexity of the transaction
• a stipulation that the buyer may withdraw from the process at any time if the transaction does not provide the expected gains
• the usual closing conditions of the transaction

A document that can have a legal weight

Although the letter of intent is not intended to create a contractual obligation to close a deal, this does not preclude it from having legal weight.

"A letter of intent usually consists of just a few pages, but it can be so much more detailed that it can be difficult to recognize the difference between the letter of intent and a formal purchase offer," says Mr. Marquis. "This can lead to a dispute by one of the parties in case of withdrawal, for example. There are cases that have ended up in court."

It is best to contact an attorney specialized in transactional law early in the process, who will provide a good legal framework so that the documents correspond perfectly to your intentions.

For this reason, it is also best to avoid using a letter of intent template found online.

"The document can take on many forms depending on the nature of the transaction and the needs of the parties," Pierre Marquis explains. "It will be difficult to find an appropriate template."

Once the main transaction parameters have been listed in the letter of intent, it will be time to proceed with thorough due diligence. Only after that will you be able to write the final agreements that will lead to closing the acquisition.