WHAT IS A TERM SHEET?


A term sheet is the first material written document that passes between a potential buyer and a potential seller in a business transaction. It can range in length and format, although some conventions have developed over time governing what elements are important to include in the document. A term sheet is usually created by the buyer, who provides the central terms of the transaction that the parties have agreed to, hence its name: “A Term Sheet. 

WHO PREPARES THE TERM SHEET?

The term sheet is typically created by the buyer of an asset or a business.  The purpose is put the terms down on paper to remove some ambiguity about the terms of the acquisition or transaction. For ease of use most term sheet aren’t longer than a few pages, with an understanding that once the terms are agreed to a more detailed contract between the parties will be prepared. It is important to make sure that aparticularly important  letter of intent or a term sheet specify that it’s terms are non-binding to avoid being confused with a binding contract. because a term sheet otherwise has all the elements of a contract: it is in writing and it is usually signed by both parties.  That in and of itself is enough to make it a contract. As a result, it is important to have language in the document to state that it is not binding, because the default is that it would be a binding agreement. That means a buyer could theoretically agree to acquire a multi-million dollar asset with a two page term sheet. Nobody wants to do that. Consequently, it is important to make sure that it is not binding.

To make things a little more complicated, however, sometimes a buyer wants some terms to be binding. For example, you may want an exclusivity period mentioned in the term sheet that prohibits the seller from shopping the deal around while the parties are negotiating the purchase agreement. Even though a term sheet seems like a simple document, it can get a party into a lot of hot water if it isn’t done right.

WHY USE A TERM SHEET?

Generally, the idea is to convey, what the transaction is going to look like. A term sheet or Letters of Intent is usually non-bindingand is. They are designed to just getset out the intentions of the parties on paper, so as to make sure that there is an understanding upon which both the buyer and seller agree. This greatly reduces the likelihood of misunderstanding or mistake between the parties early in the transaction. There by avoiding costly mistakes and litigation.