 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
DCV Holdings3/24/2005
s Porta. By his own testimony, Porta learned from both Ron Mask and John Leddy that Du Pont's TMA business group never intended to pay the rebate referred to in Leddy's letter.
Viewing these facts in their entirety, the Court finds that any reading of Halter's July 23 fax, together with the Disclosure Schedule to the Purchase Agreement, shows that DuCoa's handling of the rebate was either contrary to GAAP and/or caused DuCoa's books to not accurately present the financial condition of the company.
Plaintiff has also failed to show that it would not have closed the deal if it had understood that DuCoa senior management mishandled the rebate. First, Sikorski readily acknowledged at trial that he knew that DuCoa executives took unearned bonus money based on an unpaid rebate. Sikorski was no novice in the world of finance. He understood the ramifications of DuCoa's actions. According to Halter's notes from the July 23 teleconference, Winward repeatedly stated its impressions that DuCoa was doing its own thing financially, and that what it was doing was not in accordance with GAAP. Winward realized that a reaudit might be in order but chose instead to offer less money for the companies. Both Porta and Sikorski agreed that following the transaction, Hilling would be replaced with Rose, another indication that the Buyers were aware that change was needed. These plans show that Plaintiffs did not rely on omitted facts as to the amount of the rebate. In fact, they were acting, or planning to act, on the information that they had been given by the sellers about the mishandling of the TMA rebate. The Court finds that Defendants disclosed the material facts, and that Plaintiff has failed to prove its common law fraud claim.
INDEMNIFICATION FOR ANTITRUST ACTIVITY
The second issue at trial pertained to the intent of the parties in negotiating §
3.9 contained in Article III of the Purchase Agreement. Section 3.9 is an all-inclusive warranty protecting the Buyers from undisclosed liabilities or obligations. Plaintiff argues that § 3.9 encompasses the accrued antitrust liability that existed at the time of closing and that the parties' intention in drafting § 3.9 was to provide buyers with indemnification for all potential liabilities, known or unknown at the time of the sale. Defendants argue that § 3.13 controls the issue of antitrust liability because § 3.13 specifically addresses unlawful conduct and because allowing the general provisions of § 3.9 to govern would render the knowledge provision of § 3.13 mere surplusage.
The Supreme Court found that § 3.9 is ambiguous in the context of the entire Purchase Agreement and that resolution of the intent of the parties must be made by examining extrinsic evidence from the negotiation process. At trial, all the witnesses agreed that the negotiations regarding the contractual representations and warranties were intense and difficult. A particularly thorny issue was the breadth of § 3.9, which provides general protection to the buyers from liabilities undisclosed by the sellers. In its final form, § 3.9 states as follows:
No Undisclosed Liabilities. None of the Companies has any liabilities or obligations of any nature (whether absolute, accrued, contingent, unasserted, determined, determinable or otherwise) [other than three inapplicable exceptions].
This Court previously found that § 3.9 is inherently ambiguous, as shown by Plaintiff's interpretation of the word "liabilities" as embracing future or potential liabilities, and Defendant's contrary assertion that the word means actual or existing liabilities. The language conceivably supports either interpretation, and it therefore bec
Page 1 2 3 4 5 6 7 8 9 10 11 Delaware Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|