Australia: The art of the deal sheet: 10 key negotiation points

Last Updated: 15 November 2017
Article by William Kontaxis and Amy Pun

Deal sheets, terms sheets, heads of agreements, letters of intent, memorandums of understanding, deal memos – whatever you call them, these typically short and simple documents play a vital role in the direction and outcome of a corporate transaction.

From our experience, when negotiating a potential deal and putting together a terms sheet for the transaction, the following 10 items should help to ensure a smoother and more robust process during the sale negotiations.

  1. STRUCTURE

All too often the parties to a transaction get caught up in the excitement of closing a deal that they overlook key structuring decisions.Whether a transaction is structured as an asset sale or share sale can have significant tax and risk implications. The proposed purchase price should take into account the potential tax liabilities and other risks arising out of a particular structure, so it is important to link the proposed price to the deal structure (and seek appropriate tax advice).

  1. PRICE

How and when the purchase price is to be paid, whether it comprises cash and/or shares, whether a deposit is required, whether there is an earn-out involved (and the parameters for calculating it) and what adjustments (if any) there will be to the purchase price (eg for outstanding liabilities of the business and accrued employee entitlements) need to be carefully considered and articulated in the terms sheet.

  1. DUE DILIGENCE

The extent of any financial, legal or other due diligence and the process for it should also be agreed early, including what categories of documents are to be disclosed, how long information will be available to be accessed and what staff will be available to respond to questions raised during the due diligence process. There is no one-size-fits-all approach to due diligence – the size and structure of a proposed transaction and the target business will determine what is appropriate in the circumstances.

  1. WARRANTIES

It is not uncommon to find parties address this important point with a throw-away line that the documentation will include warranties 'of the kind usually found in a transaction such as this'. Unfortunately this may not adequately protect your interests and is open to interpretation (and costly disagreement) when it comes time to prepare the documentation. If there is a specific matter or factual position that you need certainty on, make it clear that a warranty or indemnity supporting this position will need to be provided.

  1. RESTRAINTS

Restraints and non-compete provisions often play a major role in protecting the value of a business. An astute purchaser will want the terms sheet to expressly state the extent, location and duration of any restraints / non-compete provisions that their offer is based on, whilst a seller should also want certainty on this as the price they are willing to accept for the proposed transaction may be affected by the restrictions they will be subject to following completion.

  1. INTELLECTUAL PROPERTY

Identifying precisely what intellectual property forms part of a proposed transaction and where it lies is a vital discussion point. If a technology platform or computer software is key to the viability and/or value of a business, ensuring the seller validly holds the intellectual property or has robust licence agreements in place ensures its value to the business is able to be protected and transferred.

  1. EMPLOYEES

People are often the most valuable asset of a business, particularly service-based businesses. Depending on which side of the transaction you sit, you may need to specify in the terms sheet which employees (if any) are vital to the business and how the parties plan to keep these employees committed to the business moving forward.

  1. CONDITIONS PRECEDENT / POST-COMPLETION OBLIGATIONS

If there are certain things which need to occur before the transaction can complete these should be clearly expressed in the terms sheet. For example, you might need to obtain the consent of a third party to the transfer of a key contract or obtain regulatory approvals.The amount of working capital to be left in the business and pre-completion dividends from the target company to the seller (common areas of disputes) should also be discussed. Similarly, any post-completion obligations you wish to impose on the other party (such as any post-completion adjustments and any transitional arrangements for integration) should also be included to avoid these potentially becoming 'deal-breakers' when the transaction documents are being prepared.

  1. TRANSACTION DOCUMENTS

Once the key terms are agreed, you should then turn your mind to the documentation which will be required to effect the transaction and who will be responsible for drafting these documents. One all-encompassing agreement might seem like a logical choice, but it might be preferable to separate elements of the transaction into discreet documents for legal, accounting or registration purposes. The party preparing the documents tends to have greater control over the direction of the transaction and is also often best placed to contain costs.

  1. BINDING OR NON-BINDING

A critical but often overlooked aspect of terms sheets is whether the parties intend for them to be legally binding. If a proposed transaction is subject to the parties entering into formal legal documentation, this must be clear in the terms sheet. If it is not, the parties may inadvertently commit themselves to completing the transaction just by signing the terms sheet. It is common for only some parts of the terms sheet to be legally binding (eg confidentiality and exclusivity) and the rest to be subject to formal legal documentation.

By addressing the above points during the initial deal negotiations you should be able to save considerable time, expense and aggravation over the course of the transaction. The key deal terms may extend beyond the above 10 points, so you should always seek appropriate advice to ensure the terms sheet is tailored towards your specific needs.

For further information please contact:

William Kontaxis, Associate
Phone: +61 2 9233 5544
Email: WXK@SWAAB.COM.AU

Amy Pun, Solicitor

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions