Seller Not Complying with a Signed LOI
December 15, 2022
by a searcher from Yale University - School of Management in Boston, MA, USA
Does anyone have experience with a seller changing their mind after LOI has been signed (i.e. not sharing data to allow DD)? Any reasonable recourse available.? Clearly, forcing them to comply is going to be counterproductive, but at the same time, the typical structure of the LOI with the buyer providing earnest money deposit appears to be a one-sided commitment with nothing preventing the Seller from simply walking away.
from Vanderbilt University in North Palm Beach, FL, USA
Check out the LOI example in the GSB Search Fund Primer Exhibits. It's a good template & has a legally-binding clause requiring the seller to share data required for due diligence. Hypothetically, if a seller was non-compliant the buyer could sue them and try to recover their DD expenses/other damages. In practice, it probably isn't worth the headache or legal fees for most SMB deals. If the seller were uncooperative in providing info that's critical to evaluation of the company I would walk away and move on to the next one.
Separately, I've never seen a LOI requiring the buyer to put down a deposit - this would be a red flag. Breakup fees are also very uncommon in M&A and generally only used in deals involving public companies. I would be shocked to see a breakup fee in any SMB/middle-market deal involving privately held businesses.
from Texas A&M University in Johnson City, TN, USA
If you've put money down, you must look at any terms around this money to get it back. Talk to broker of there is one.
On other side, perhaps you've requested too much info at one time that business is having trouble pulling together? If this is a small business, financials may not be very clean, amd they may be overwhelmed, especially at end of the year, of they are trying to keep business running in top shape for you.