[10] See z.B. Targus Group Int`l v. Sherman, 922 N.E.2d 841 (Mass. Ct. App. 2010) (the fact that the parties to an interim agreement were in principle bound by their terms, even though they had never reached a final agreement); Kurker`s Shoestring accessories. Ltd. P`ship, 864 N.E.2d 24 (Mass. Ct.

App. 2007) (by stating that an offer to buy a definitive sale contract is enforceable on its terms). In 2006, SIGA Technologies developed a smallpox drug, but it ran out of money. It obtained a bridge loan from PharmAthene and signed a merger agreement under which PharmAthene would take over SIGA. Given that SIGA needed a means of survival, it insisted, as part of the merger agreement, that the parties negotiate in good faith a licensing agreement for the smallpox drug in the event of a merger. The terms of the licence were defined in an appointment sheet as an exposure sheet of the merger agreement; this card is called LATS. The provision of the merger agreement, which requires the negotiation of a licence under the terms of the LATS, is a pre-agreement of the Type II contract for a licensing agreement. In a way, the term “provisional agreement” is an oxymoron. If the so-called agreement is really provisional, in the sense that it is not a fully cooked agreement with agreement on all the essential conditions, it is really not an agreement at all.

In both England and the United States, an enforceable contract can only be concluded if there is an objective agreement between the parties on all the essential terms of their agreement. On the other hand, in writings that clearly state that they are only provisional and do not contain all the essential conditions necessary for a binding contract, it is sometimes stated that certain terms set out in this letter are indeed binding. Indeed, some provisional agreements contain all the essential conditions necessary for a binding contract, but they note that another final agreement setting out additional conditions will be concluded at a later date. Parties to a potential transaction generally negotiate in a series of phases ranging from conceptual discussions to final agreements. The initial phase often involves negotiating essential concepts, which are then reflected in information of interest, declarations of intent and purportedly non-binding concept sheets. In these early phases, parties may seek the advice of an advisor to ensure that they do not engage prematurely. However, despite the best of intentions, an apparently non-binding “indication” can quickly transform a so-called “provisional agreement” by retrospective of an alleged alleged despised counterparty.