efforts clause in Delaware

2026Oct. 1, 2018), aff’d, 198 A.3d 724 (Del. 2018) (TABLE). 49 or be liable for resulting damages’ (or potentially be subject to an order compelling specific performance).”134 “At times, however, a party’s ability to perform its obligations depends on others or may be hindered by events beyond the party’s control.”135 In those situations, drafters commonly add an efforts provision to define the level of effort that the party must deploy to attempt to achieve the outcome,136 and the efforts standard specifies how hard the parties have to try.137 Commonly used standards include “best efforts,” “reas

2026Oct. 1, 2018), aff’d, 198 A.3d 724 (Del. 2018) (TABLE). 49 or be liable for resulting damages’ (or potentially be subject to an order compelling specific performance).”134 “At times, however, a party’s ability to perform its obligations depends on others or may be hindered by events beyond the party’s control.”135 In those situations, drafters commonly add an efforts provision to define the level of effort that the party must deploy to attempt to achieve the outcome,136 and the efforts standard specifies how hard the parties have to try.137 Commonly used standards include “best efforts,” “reas

2024It is also, however, an unduly restricted view of this special summary proceeding, particularly in light of the arguments and evidence presented at trial. 247 See Dkt. 200 Plaintiffs’ Post-Trial Reply Br. (“Plaintiffs’ Post-Trial Reply Br.”) at 10 n.9. 248 See Defendants’ Post-Trial Answering Br. at 37–38. 249 Id. 52 accordingly, analyze Section 12.1’s efforts clause as imposing a “reasonable efforts” obligation on Alphonso but not the Board.

2021Efforts clauses generally replace “the rule of strict liability for contractual non-performance that otherwise governs” 494 with “obligations to take all reasonable steps to solve problems and consummate the” obligation. 495 When assessing whether a party has breached an efforts clause in a transaction agreement, “this court has looked to whether the party subject to the clause (i) had reasonable grounds to take the action it did and (ii) sought to address problems with its counterparty.” 496 This 493 SPA § 6.15(a). 494 Akorn, 2018 WL 4719347 , at *86 (holding that “reasonable best efforts” an

2021Efforts clauses generally replace “the rule of strict liability for contractual non-performance that otherwise governs” 494 with “obligations to take all reasonable steps to solve problems and consummate the” obligation. 495 When assessing whether a party has breached an efforts clause in a transaction agreement, “this court has looked to whether the party subject to the clause (i) had reasonable grounds to take the action it did and (ii) sought to address problems with its counterparty.” 496 This 493 SPA § 6.15(a). 494 Akorn, 2018 WL 4719347 , at *86 (holding that “reasonable best efforts” an

2018I note that Section 5.01 is a separate best efforts provision that would also presumably prohibit disparagement 26 Savor, Inc. v. FMR Corp., 812 A.2d 894 , 896–97 (Del. 2002) (footnotes and internal quotation marks omitted). 27 Caspian Alpha Long Credit Fund, L.P. v. GS Mezzanine P’rs 2006, L.P., 93 A.3d 1203, 1205 (Del. 2014) (internal quotation marks omitted). 10 of the kind that ETE alleges.28 Section 5.01 allows the counterparty, upon breach of the best efforts clause, to recover actual damages; by contrast, Sections 3.01(d)(i) and 4.02(d) provide liquidated damages where the Board threate

2009Group, 159 A.D.2d 902 , 553 N.Y.S.2d 864, 867 (N.Y.App.Div.1990) (dismissing claim for breach of a best efforts clause on a motion to dismiss), appeal dismissed, 76 N.Y.2d 886 , 561 N.Y.S.2d 546 , 562 N.E.2d 871 (N.Y.1990). 67 .Merger Agreement § 6.5.6. 68 .

2009Group, 159 A.D.2d 902 , 553 N.Y.S.2d 864, 867 (N.Y.App.Div.1990) (dismissing claim for breach of a best efforts clause on a motion to dismiss), appeal dismissed, 76 N.Y.2d 886 , 561 N.Y.S.2d 546 , 562 N.E.2d 871 (N.Y.1990). 67 .Merger Agreement § 6.5.6. 68 .

2009Group, 159 A.D.2d 902 , 553 N.Y.S.2d 864, 867 (N.Y.App.Div.1990) (dismissing claim for breach of a best efforts clause on a motion to dismiss), appeal dismissed, 76 N.Y.2d 886 , 561 N.Y.S.2d 546 , 562 N.E.2d 871 (N.Y.1990). 67 .Merger Agreement § 6.5.6. 68 .