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When a Non-binding Term Sheet Becomes Binding
From Mintz Levin
By Robert Burwell, Meryl Epstein, Christopher Lhulier, and Howard Miller
July 8‚ 2013
Tire-kickers, prevaricators and those who might otherwise agree on a term sheet with little intention of closing the deal beware: A “non-binding” term sheet is sometimes binding. At least so says the Delaware Supreme Court. In SIGA Technologies v. PharmAthene, Inc., No. 314, 2012 2013 Del. LEXIS 265, 1-2 (Del. May 24, 2013), Delaware’s highest court held that where a party to a detailed term sheet breaches its duty to negotiate in good faith, the spurned party may be entitled to recover an award of so-called “benefit of the bargain” contract damages. In such a case, the breaching party would be required to pay the non-breaching party an amount equal to the value the non-breaching party could have reasonably expected to receive under a definitive agreement having the same terms as set forth in the term sheet. This alert discusses the SIGA case and proposes ways to mitigate the risk that a court might award expectation damages based on a “non-binding” term sheet or letter of intent.
SIGA Technologies v. PharmAthene, Inc.
In SIGA, PharmAthene — a pharmaceutical company specializing in “biodefense” against chemical weapons such as anthrax — sued to enforce a term sheet for a license agreement with SIGA. The relationship began like many drug development collaborations: SIGA had acquired an untested, unproven treatment for smallpox, but it had limited resources. As a result, it sought funding, ultimately entering into discussions with PharmAthene to help it finance development of the product. PharmAthene proposed a merger of the two companies but SIGA, although cash strapped, was hesitant. The parties nonetheless negotiated and agreed on a definitive merger agreement and a similarly detailed term sheet for a license agreement just in case the merger fell through. During the negotiations, SIGA asked PharmAthene for a bridge loan to cover SIGA’s ongoing development costs. PharmAthene agreed to the loan on the condition it would, at minimum, receive a license for the product. Both the bridge loan documents and the merger agreement included language confirming that if the merger fell through, the parties would
negotiate in good faith with the intention of executing a definitive License in accordance with the terms set forth in the License Agreement Term Sheet attached. . . . (SIGA, 2013 Del. LEXIS 265 at 13.)
Before the parties concluded a merger, SIGA secured over $21 million in grant money from the National Institutes of Health to complete the product’s development. SIGA then terminated the merger agreement when the “drop dead” date came before the merger could be consummated.
After the announcement, PharmAthene sent SIGA a proposed license agreement consistent with the license agreement term sheet. SIGA rejected the license agreement and tried to renegotiate significantly more favorable terms. Negotiations broke down, and PharmAthene sued.
The SIGA court held that expectation or “benefit of the bargain” damages would be an appropriate remedy where (1) the parties memorialized the basic terms of a transaction in a term sheet; (2) the parties expressly agreed to negotiate in good faith a final transaction in accordance with those terms; and (3) but for the breaching party’s bad faith negotiations, the parties would have consummated a definitive agreement having the terms set forth in the term sheet. See SIGA, 2013 Del. LEXIS 265 at 52. Benefit of the bargain damages are meant to compensate a party with what it would have received had the contract been finalized and fully performed. It is usually measured in terms of reasonably expected profits. The reliance measure of damages, in comparison, provides reimbursement to the non-breaching party for expenses it incurred in reliance on the contract.
The SIGA court’s decision is notable for the remedies it contemplates, i.e., expectation damages, not for its determination that a party can be held liable for breaching a duty to negotiate in good faith. Numerous courts have recognized a cause of action for breach of a duty to negotiate in good faith.1 In fact, at least one California court has gone so far as to recognize a cause of action for breach of the implied covenant of good faith and fair dealing in a case where the parties’ term sheet did not expressly impose an obligation to negotiate in good faith. Copeland v. Baskin Robbins U.S.A., 96 Cal. App. 4th 1251 (2002). But these prior court rulings have typically favored reliance, not expectancy damages.2