Legal Blog

M&A Nugget: Non-Binding LOIs Should Have Binding Provisions

Most letters of intent are non-binding, that is, create no contractual obligation to close the transaction until a purchase agreement is signed. Non-binding letters of intent, however, should contain clauses that bind the seller and the purchaser, including the following, a) a no-shop clause prohibiting the seller from seeking or negotiating with other buyers; b) a confidentiality provision; c) a statement that from the signing of the letter of intent through the termination of the letter of intent, the seller will operate in the ordinary course of business; d) the date the letter of intent expires; and e) a statement as to which State’s law governs the interpretation of the letter of intent. The primary purposes of these binding clauses are to ensure the buyer that, while it expends time, money and resources investigating the seller, the seller will operate ordinarily and not seek to negotiate against the buyer, and to provide the seller with comfort that its willingness to sell its business will remain confidential and that there will be a date to move on if the parties cannot come to terms on a definitive agreement.



If you have any questions about this or any other M&A issue,
please contact Glenn Solomon at or 443-738-1522.


ABOUT GLENN D. SOLOMON | 443-738-1522

Glenn D. Solomon is a principal at Offit Kurman and has provided counsel to businesses and business owners for more than twenty-five years. He has extensive experience in the purchase and sale of businesses, structuring ownership agreements, and advising companies in financial distress.








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