Re: Proposal to Purchase the Assets of the [DESCRIPTION OF BUSINESS] Business of [SELLER]
This letter (this “Letter”) is intended to summarize the principal terms of a proposal being considered by [BUYER] (“Buyer”) regarding its possible acquisition of substantially all of the assets, and certain specified liabilities, of the [DESCRIPTION OF BUSINESS] business (the “Business”) of [SELLER] (“Seller”). The possible acquisition of the Business is referred to as the “Transaction” and Buyer and Seller are referred to collectively as the “Parties.”
- Acquisition of Assets and Purchase Price.
(a) Subject to the satisfaction of the conditions described in this Letter, at the closing of the Transaction Buyer would acquire substantially all of the assets, and certain specified liabilities, of the Business (the “Assets”), free and clear of all encumbrances, at the purchase price set forth in Section 1(b).
(b) The purchase price for the Assets would be $[AMOUNT] (the “Purchase Price”) in cash, subject to adjustment, and payable as follows:
(i) [AMOUNT] payable at the closing of the Transaction; and
(ii) [AMOUNT] to be deposited with a mutually agreeable escrow agent, to be held for a period of [TIME] after the closing, in order to secure the performance of Seller’s post-closing obligations under the definitive purchase agreement.
(c) Buyer has calculated the Purchase Price on the basis of information [contained in the information memorandum dated [DATE]/currently known to Buyer] and on the basis of the following assumptions:
(i) Working capital at the closing of the Transaction is $[AMOUNT], calculated in accordance with US GAAP, consistently applied. The Purchase Price payable at closing would be increased or decreased based on changes in the working capital of the Business, on a dollar-for-dollar basis.
(ii) [SET OUT ANY OTHER ASSUMPTIONS].
- Proposed Definitive Agreement. As soon as reasonably practicable after the execution of this Letter, the Parties shall commence to negotiate a definitive purchase agreement (the “Definitive Agreement”) relating to Buyer’s acquisition of the Assets, to be drafted by Buyer’s counsel. The Definitive Agreement would include the terms summarized in this Letter and such other representations, warranties, conditions, covenants, indemnities and other terms that are customary for transactions of this kind and are not inconsistent with this Letter. The Parties shall also commence to negotiate ancillary agreements to be drafted by Buyer’s counsel, including (i) an escrow agreement, (ii) a bill of sale, and (iii) an assignment and assumption agreement.
- Conditions. Buyer’s obligation to close the proposed Transaction will be subject to customary conditions, including:
(a) Buyer’s satisfactory completion of due diligence;
(b) [Buyer’s receipt of cash proceeds from the financing transactions contemplated by the commitment letters attached to this Letter in an amount necessary to finance the Transaction, pay related fees and expenses and provide adequate ongoing working capital and on the terms and conditions explicitly set forth in such commitment letters and such others terms and conditions satisfactory to Buyer;]
(c) the Board of Directors [and stockholders] of Buyer and Seller approving the Transaction;
(d) the Parties’ execution of the Definitive Agreement and the ancillary agreements;
(e) the receipt of any regulatory approvals and third party consents, on terms satisfactory to Buyer[, including in particular [SPECIFY MATERIAL CONSENTS]];
(f) [each of [NAMES OF KEY EMPLOYEES] entering into employment agreements with Buyer on terms agreed with Buyer;]
(g) [Seller [and its affiliates] entering into restrictive covenants, in a form acceptable to Buyer, agreeing not to: (i) compete with the Business for [NUMBER] of years following the closing, and (ii) hire or solicit any employee of the Business or encourage any such employee to leave such employment for a period of [NUMBER] of years following the closing;] and
(h) there being no material adverse change in the business, results of operations, prospects, condition (financial or otherwise) or assets of the Business.
- Due Diligence. From and after the date of this Letter, Seller will authorize its management to allow Buyer and its advisors full access to the facilities, records, key employees [customers, suppliers] and advisors of the Business for the purpose of completing Buyer’s due diligence review. The due diligence investigation will include, but is not limited to, a complete review of the financial, legal, tax, environmental, intellectual property and labor records and agreements of the Business, and any other matters as Buyer’s accountants, tax and legal counsel, and other advisors deem relevant.
- [Employment Arrangements. Buyer would offer employment to substantially all of the employees of the Business and would expect the Seller’s management to use its reasonable best effort to assist Buyer to employ those individuals.]
- [Covenants of Seller. During the period from the signing of this Letter through the execution of the Definitive Agreement, Seller will: (i) conduct the Business in the ordinary course in a manner consistent with past practice, (ii) maintain its properties and other assets in good working condition (normal wear and tear excepted), and (iii) use its best efforts to maintain the Business and employees, customers, assets and operations as an ongoing concern in accordance with past practice.]
(a) In consideration of the expenses that Buyer has incurred and will incur in connection with the proposed Transaction, Seller agrees that until such time as this Letter has terminated in accordance with the provisions of paragraph 8 (such period, the “Exclusivity Period”), neither it nor any of its representatives, officers, employees, directors, agents, stockholders, subsidiaries or affiliates (the “Seller Group”) shall initiate, solicit, entertain, negotiate, accept or discuss, directly or indirectly, any proposal or offer from any person or group of persons other than Buyer and its affiliates (an “Acquisition Proposal”) to acquire all or any portion of the Business or the Assets, whether by merger, purchase of stock, purchase of assets, tender offer or otherwise, or provide any non-public information to any third party in connection with an Acquisition Proposal or enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Transaction with Buyer. Seller agrees to immediately notify Buyer if any member of the Seller Group receives any indications of interest, requests for information or offers in respect of an Acquisition Proposal, and will communicate to Buyer in reasonable detail the terms of any such indication, request or offer, and will provide Buyer with copies of all written communications relating to any such indication, request or offer. Immediately upon execution of this Letter, Seller shall, and shall cause the Seller Group to, terminate any and all existing discussions or negotiations with any person or group of persons other than Buyer and its affiliates regarding an Acquisition Proposal. Seller represents that no member of the Seller Group is party to or bound by any agreement with respect to an Acquisition Proposal other than under this Letter.
(b) [If within the Exclusivity Period, Seller does not execute definitive documentation for the Transaction reflecting the material terms and conditions for the Transaction set forth in this Letter or material terms and conditions substantially similar thereto (other than as a result of either the mutual agreement by Buyer and Seller to terminate this Letter or to change such material terms and conditions in any material respects or the unilateral refusal of Buyer to execute such definitive documentation), then Seller shall pay to Buyer an amount equal to the reasonable out-of-pocket expenses (including the reasonable fees and expenses of legal counsel, accountants and other advisors and whether incurred prior to or after the date hereof) incurred by Buyer in connection with the proposed Transaction, which amount shall be payable in same day funds on the day that is the first business day after the Exclusivity Period.]
- Termination. This letter will automatically terminate and be of no further force and effect upon the earlier of (i) execution of the Definitive Agreement by Buyer and Seller, (ii) mutual agreement of Buyer and Seller, and (iii) [TIME] on [DATE]. Notwithstanding anything in the previous sentence, paragraphs [7(b),]10, 11 and 13 shall survive the termination of this Letter and the termination of this Letter shall not affect any rights any Party has with respect to the breach of this Letter by another Party prior to such termination.
- Bid Expiration. This offer will remain in effect until [TIME], [CITY] time, on [DATE], unless accepted or rejected by Seller, or withdrawn by Buyer prior to that time.
- GOVERNING LAW. THIS LETTER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH INTERNAL LAWS OF THE STATE OF [RELEVANT STATE], WITHOUT GIVING EFFECT TO ANY CHOICE OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE STATE OF [RELEVANT STATE] OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF LAWS OF ANY JURISDICTION OTHER THAN THOSE OF THE STATE OF [RELEVANT STATE].
- Confidentiality. This Letter is confidential to the Parties and their representatives and is subject to the confidentiality agreement entered into between Buyer and Seller on [DATE], which continues in full force and effect.
- No Third Party Beneficiaries. Except as specifically set forth or referred to herein, nothing herein is intended or shall be construed to confer upon any person or entity other than the Parties and their successors or assigns, any rights or remedies under or by reason of this Letter.
- Expenses. [Except as set forth in Section 7(b),]/[T]he Parties will each pay their own transaction expenses, including the fees and expenses of investment bankers and other advisors, incurred in connection with the proposed Transaction.
- No Binding Agreement. This Letter reflects the intention of the Parties, but for the avoidance of doubt neither this Letter nor its acceptance shall give rise to any legally binding or enforceable obligation on any Party, except with regard to paragraphs 7 through 13 hereof. No contract or agreement providing for any transaction involving the Business shall be deemed to exist between Seller and Buyer and any of its affiliates unless and until a final definitive agreement has been executed and delivered.
- Miscellaneous. This Letter may be executed in counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one agreement. The headings of the various sections of this Letter have been inserted for reference only and shall not be deemed to be a part of this Letter.
[SIGNATURE PAGE FOLLOWS]
If you are in agreement with the terms set forth above and desire to proceed with the proposed Transaction on that basis, please sign this Letter in the space provided below and return an executed copy to the attention of [NAME].
|[Agreed to and accepted:]
|Very truly yours,