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DOCUMENTING YOUR NEXT‘KILLER’ DEAL
Mark Toohey: abusiness, media and technology lawyerat Adroit Lawyers
mark@adroitlawyers.com.au
The country is full of savvy entrepreneurs who can run a profitable business, handle themarketing, budgeting, tax, employment and countless other details. Yet, even those whocan sense a good commercial deal and have the acumen to negotiate the terms are oftenuncertain how to document their deal.This uncertainty isn’t because the process isso hard. It’s just that nobody has everexplained it to them. So let’s remedy thatright now!Whether you’re selling your business,signing-up for a project or any other deal,the first step is to get a good overview of thedeal in your own mind.Always remember basic concepts and keep reverting to a macro view of your overallstrategy so you can maintain your bearings.There can be considerable flexibility in how a deal is documented and progressed. Themain aim in any deal and any well-drafted legal document is clarity of the key terms: Whatis to be done? When? How much is to be paid? Who is liable if things go wrong?Of course, many other issues must eventually be recorded and there’s no shortage of distracting issues.A deal should be built to suit the particular transaction, its timetable and each party’sconcerns. Interim documents can sometimes be bypassed or selectively used – just likeselecting a particular item from a legal tool kit. The only really mandatory document is thefinal detailed Agreement.Keep the transaction simple and don’t let the other party bamboozle you withunnecessary complexity or with jargon and terminology. Let’s work through what they areseeking if they ask you for a Deed of Confidentiality, Deed of Non-Disclosure, Deal Memo,Term Sheet, Heads of Agreement, Memorandum of Understanding or Letter of Intent.Sometimes documents with the same effect or purpose are given different names due toindividual habit. The contents are far more relevant than the title.
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