Exclusivity agreements come in a variety of forms and are designed to meet a range of goals. The overriding purpose of each exclusivity agreement is to define a relationship in which (generally) two parties agree to deal only with one another, to the exclusion of third parties.
The duration of the agreement; whether it is bilateral or unilateral in its rights and restrictions; if it includes only two parties or perhaps more-all such matters are dependent to a large degree on the area of law from which the agreement springs.
Exclusivity agreements are most commonly found in contract law pertaining to mergers, acquisitions, and real estate.
Commercial Parties and Exclusivity Agreements
When two commercial parties deal with one another, they may sign an exclusivity agreement to solidify the economic relationship between them and to prevent third parties from interfering. The nature of this sort of exclusivity agreement-and the desire to build stability into the relationship-means that such agreements can endure months or years-until the bargaining power of one or the other party materially changes.
Often, the relationship is one between buyer and seller, and the seller obliges the buyer to purchase its goods only from this seller and not from the seller’s competitors.
An example of this situation would be Del Monte obliging Whole Foods grocery stores to buy all of its bananas only from Del Monte and not from Chiquita or another grower. Certainly, the opposite situation can occur, as well: Whole Foods could lock in Del Monte such that the latter could sell its bananas only to the former. This scenario is much less common, however.
Mergers and Exclusivity Agreements
Two companies contemplating a merger sign an exclusivity agreement to prevent one or both of the parties from seeking other third party targets or partners. Shorter in length, these agreements keep the parties’ attention focused during the discussion phase.
Inherent to these agreements are certain provisions, such as articles on:
- access
- no agreement
- termination
- changes
The parties allow one another access to files and pertinent data. The parties are bound by confidentiality provisions, especially if the deal is not consummated. Just such a scenario is dealt with in the “no agreement” provision, which states that even though the parties are dealing exclusively with one another, they are under no duty to conclude a deal.
A termination provision talks about the natural expiration of the agreement or early termination by one of the parties. And finally, certain provisions in the agreement may well forbid parties from making material changes to the way the business is run during the exclusion period.