Key Texas M&A Issues (Presentation)

Jackson Walker
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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...

Please see full Presentation below for more information.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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