Agenda

- Letters of Intent

- Best Efforts

- Indemnification

- Sandbagging

- Non-Reliance

- Fiduciary Duties

- Letters of Intent:

• Buyer may seek letter of intent that is generally not binding on either party (exceptions for expenses, confidentiality, good faith negotiation, etc.).

• The right words are critical in determining extent to which a letter of intent is non-binding. See Global Asset Capital, LLC v. Rubicon, C.A. No. 5071-VCL (Del. Ch. 2009) (discussed in note 10 on pp 8-9 of Appendix C to Acquisition Structure paper).

Even if the letter of intent has unambiguous words to the effect that no binding contract will exist until a definitive agreement is signed, the conduct of the parties (particularly press releases and joint marketing efforts) can lead a trier of fact to find that the parties have entered into a definitive agreement...