LOIs – Common Mistakes

A letter of intent or LOI is a document that’s often used to outline the preliminary understanding between parties before entering into a formal contract or agreement. Below, I outline the common mistakes in LOIs and how to avoid them.

  • Incomplete Information: Failing to include all necessary information or terms in an LOI can lead to uncertainty and misunderstandings. It’s essential to address all relevant aspects of the proposed transaction, including pricing, deliverables, responsibilities, deadlines, and any other key terms or conditions. This helps ensure that both parties have a clear understanding of their rights and obligations.
  • Ambiguity in Terms: Ambiguity in the terms of an LOI can lead to misunderstandings and disagreements between the parties. For example, if the price is not clearly defined, one party might have a different understanding of what is being offered or agreed upon. To avoid ambiguity, it’s important to clearly outline each term of the agreement, including specific details such as quantities, prices, timelines, and any other relevant conditions.
  • Binding Language: If an LOI includes language that unintentionally creates a binding agreement, it can lead to unexpected legal obligations for the parties involved. To prevent this, parties should clearly specify whether the LOI is intended to be binding or non-binding. If certain provisions are intended to be binding, such as confidentiality clauses or exclusivity agreements, they should be clearly identified as such.
  • Exclusivity and Non-Compete Clauses: Including exclusivity or non-compete clauses in an LOI without fully understanding their implications can limit a party’s flexibility and options in pursuing other opportunities. Before including such provisions, parties should carefully consider the scope, duration, and potential consequences of exclusivity and non-compete agreements.
  • Lack of Confidentiality: Without adequate confidentiality provisions, sensitive information exchanged during negotiations may be at risk of misuse or disclosure. Including confidentiality clauses in an LOI can help protect proprietary information and trade secrets. These clauses should clearly outline the obligations of each party regarding the handling and protection of confidential information.
  • Unclear Termination Provisions: Neglecting to include provisions specifying how the LOI can be terminated or withdrawn can lead to uncertainty and disputes if one party wishes to back out of the transaction. Clear termination clauses should outline the circumstances under which the LOI can be terminated, as well as any consequences or obligations upon termination.
  • Failure to Specify Governing Law and Jurisdiction: Without specifying the governing law and jurisdiction for resolving disputes, parties may face uncertainty and delays in the event of a disagreement. Including these provisions in an LOI can provide clarity and streamline the dispute resolution process by establishing the legal framework within which any disputes will be resolved.
  • Missing Deadline for Formal Agreement: Failing to establish a deadline for negotiating and executing a formal agreement based on the terms outlined in the LOI can result in delays or the collapse of the deal. Setting a clear timeline and deadline for finalizing the formal agreement helps ensure that negotiations proceed efficiently and that both parties are committed to reaching a timely resolution.
  • Overreliance on Templates: While templates can be useful as starting points, relying too heavily on them without customizing them to the specific circumstances of the transaction can lead to oversights and omissions. Each LOI should be carefully tailored to the unique needs and requirements of the parties involved, taking into account the nature of the transaction, industry practices, and legal considerations.
  • Not Consulting Legal Counsel: Drafting or entering into an LOI without seeking legal advice can increase the risk of overlooking important considerations or legal pitfalls. A lawyer can help ensure that the LOI accurately reflects the parties’ intentions, protects their interests, and complies with relevant laws and regulations.

Parties should address these common mistakes and taking proactive steps to draft clear, comprehensive, and legally sound LOIs. This is the key to minimizing the risk of misunderstandings, disputes, and legal challenges, and laying the groundwork for a successful negotiation and eventual agreement.