reverse the decision court's finding in favor of the apple e's on summary judgment that the purchase option contained in the binding manufacturing distribution agreement between the parties was simply an agreement to agree and therefore unenforceable we're also asking that the court remain with direction that summary judgment be entered in our favor because we think that the purchase option is enforceable for all the reasons we've set forth in a district court in our briefing and then the third thing is on the cross appeal we do ask that the court affirmed the district court's ruling in our favor that dismissed the counterclaim for breach of the covenant of good faith and fair dealing there's two principal reasons why larger in scale and more complicated than this one and it would only be upon the closing of that transaction if it were to close there or there are certain things that have to happen in that transaction it don't have to happen in connection with the one we're trying to specifically enforce that would lead to eventually a diff binding definitive purchase and sale agreement what we have right now is a non binding letter of intent like we would in other m n a context one of the conditions in there is that if we reach a closing on that deal again different scale and size and scope if we reach a closing then this would be released because this is subsumed within it but at this point we don't have a binding agreement so our request was just for an adjournment in a stay to see if the parties court's ruling that we believe we are in error one we believe that it misconstrued the purchase option in the agreement as an agreement to agree as opposed to what we say it is a binding purchase option agreement to them that would effectuate that transaction the second reason why we believe the court aired is that we believe it misapplied connecticut law and fundamental principles of contract interpretation  as we set forth in our briefing for purchase option to be enforceable under connecticut law the parties have to have agreed to that what are the admin i'm minimum essential terms which are generally viewed as a purchase price the assets to be a and the time within which you have to acquire those assets here this provision includes all of those requirements that identifies the purchase price of three million dollars it identifies specific assets to trademark to patents equipment that's least our license currently under the manufacturing and distribution agreement now it does go on to say that that would be pursuant to a mutually acceptable purchase agreement that meets the criteria of the deal terms document the deal terms document which the court probably gleaned from the briefing was the letter of intent that led to the manufacturing and distribution agreement so what is mutually acceptable there's no there's no work in the in the room it means essentially that the parties the form of the writing the parties have to agree to right i mean i at the end of the day i think all agreements have to be when you present them with agreement as to be mutually acceptable in order for them to sign it but what it doesn't prevent is a license or leeway to the apple lisa do what they want to do and have tried to do here which is essentially retreated deal that they didn't like after they entered into it they extended this offer the police performed under this contract for years very successfully so based on the belief as written allow the your adversary to do what it did without a mutually agreeable purchase agreement you start drafting an agreement and you know they come up with some reason that they don't like the term and they walk away from the deal a re you saying that they had to they had to at least negotiate a purchase agreement but then they could pull out for almost any reason no they can't walk away from the deal so the the essential terms are agreed to we have the purchase price and we have the assets to have a mutually acceptable purchase agreement where would they not where would they permissibly not find it mutually acceptable for instance if we tried to include an asset in the purchase agreement that they said was not part of the transaction and then that would be a fair basis to say it's not mutually acceptable but we haven't done that they haven't said that we had i mean nobody in this case ever district court judge the apple e's have ever identified any essential term that's missing nor is there really ever been any explanation for why this would be put into the contract a binding comprehensive contract with the purchase price identified in assets to be acquired if it was intended to be non binding it would be would serve no purpose and there's other references throughout the would be from this bill if you wanted to close it i'm just picking numbers out of thin air on october first and they said no we don't want to close until after the new year whatever i think i mean is that the kind of thing that could could permissibly allow them to to walk away from the deal i don't think it would allow them to walk away from the deal they would have to show up to a closing we would have to agree on a date and time and i don't think they could refuse indefinitely into the future to kill the law but the case law says once the parties have agreed to the essential terms they are free to negotiate on other matters that are non essential that doesn't change the fact that they have a binding enforceable agreement at the moment they've agreed to those to those terms and if there are if there were then there's never been a suggestion they were but if we had proposed terms that they felt we hadn't agreed already to be bound to and that agreement we proposed they could came back and said those need to come out but that doesn't prevent contract formation what if there was correct in assuming that connecticut law would say they still need us i can walk away from the deal at that point and a court would have to sort of arbitrate a date according to you know whatever reasonable commercial practice or something like that yeah i mean again i don't think that that kind of thing is something that you know what i would view as a technicality regarding the closing down would allow a particularly on the other side is what we're paying we have the money right so we're ready to go i'm not sure what the hesitation mostly what you're saying that was just  what you're saying is under connecticut law an option agreement that says what's going to be bought and for what price and particularly maybe where it also references some of the terms by the reference to the other agreement but it's got the essentials and if it's not that there has to be agreement on every trivial detail or one side gets to walk away  even if there's a good faith dispute about some of the details the court can fill in the the things that you and i think there are there are cases this is not a central focus of our brief but there are cases dealing with option contracts were courts have been put in that position for instance some of the case law we cite there was a fight over what was the matter of payment going to be was it going to be in a certified check or a wire and in those instances the court say you know we could step in and imply what's commercially reasonable and what typically happens in the context think actually it's almost simultaneous with the yes it is are you distinguishing that basically on the ground that there the thing that was still in dispute was actually the price right exactly yes that's correct there was no agreement as to the price because there was this environmental set off or whatever that was supposed to write there was some complicated formula it was very clear that the parties had to agree to that and that we're not would never contest that that's not the prices that's one of the most essential terms besides what you're buying so you know our position is that's distinguishable because it's not really a situation where the parties were unable to agree to terms in writing later thank you mr mann to get a few minutes commercial parties contracting a case of we if we're supposed to decide that aren't you saying we should send this to the connecticut supreme court because we're not supposed to be deciding fundamental issues of commercial law under the law of connecticut if it's really that's it's a matter of that magnitude it's for them right well it is it's established law the established black letter law is that if parties draft a contract using specific language that says we need to agree to another on what might be mutually acceptable purchase agreement you just said you didn't want to you didn't want to sound well first because we hadn't and m d a which is detailed in many respects and that was a functioning agreement everyone made money on that and that was appropriate that has a terminations by purchase clause and my question is you can probably gather from my my questions to your adversary's was does this terminations by purchase agreement obligate your client when the other side is there with three million dollars in hand and ready to buy to it least enter into negotiations not at all not because the parties specifically sophisticated parties represented by counsel put into their agreement that it must there must be a mutually acceptable agreement in the future and it incorporate and then it goes on and com pounds this by incorporating by reference a document which on its face specifically says these terms are not binding and right but it say that it has to be executed with that agreement it though those terms of the deal terms document into twenty c twenty six twenty c is now a very long paragraph the bottom of which they've incorporated by reference very specifically which is which says seller may reserve the right to reject all offers what is the significance of the inserting the three million dollar price into this paragraph if what it really means is you can terminate this management agreement which is a certain kind of relationship between the parties if you buy the whole shooting match according to some agreement that we make in the future that's what you're saying it really means right well yes but he says you'd be entirely free when they show up with their three million dollars to say no i want for right under your interpretation times have changed i'd really like more money than three million dollars well actually what it would it's fairly clear that the parties could agree on a very detailed transaction with regard to operating a business but for an acquisition sale typically those are reduced to a much more detail writing the case law refers to real estate what i'm saying is you're saying that by stipulating that there needs to be some mutual agreement that essentially vitiate the three million dollar price right because not only could you sort of mess around with dickering over the small terms your position isn't really that your position is the whole thing is nonbinding at this point so you're perfectly free to say i don't think three million dollars enough anymore that's true because also the deal terms has a time of the essence clause and this is now occurring several years later so if one if so my point is my question is why include the three million dollars i mean that would seem to me to you know we're trying to look at what is the meaning of this agreement according to the plain intent on the one hand your argument in part is if the other side is right that reads pursuant to a mutually acceptable agreement out of the contract but i'm suggesting that your interpretation reads three million dollars out of the contract and deed the option vision doesn't say you can terminate if we worked out a deal for you to buy it for three million dollars it says you can terminate the pay meant of three million dollars for soon to a mutually acceptable agreement which sounds a little different to me it does clearly the negotiations work more complete and i think what this was it was a place marker saying we can't agree on this other purchase agreement because remember the deal terms document was of two phased transaction phase ones turn over the operation second is a sale what is this was only an m d a manufacturing distribution not manufacturing just be in purchase twenty c is clearly a place marker for the future for actions that need to occur in the future and here's the status of the negotiations as they were at that time and with very conditional language only ask you about the following phrase though after a mutually acceptable purchase agreement says that meets the criteria of the deal terms document executed by the parties in december doesn't limit the scope of the mutually acceptable purchase agreement in other words as a means as long as the as long as you meet the deal terms there we're going to have an agreement agreement well the the deal terms of personal not absolute you've incorporated any party could have taken their sharpie and stricken out that this these terms are not binding or sell or reserves the right or could have stricken up with their sharpie mutually agreeable those two terms suggest that the that the negotiations were open at the time of the end n d a and the purchase was now going to be subject to additional negotiations at the time that they resume them and and the deal terms do change there's the purchase price in the deal terms was three million dollars with a a credit for purchasers royalty payments or sales of territories but then the m d a says it's three million dollars with credits for the owner share of exclusive territory fees but now you've reincorporated by by reference a document which is now can consistent so you're not inconsistent so now you're you've got a circular issue on on what really constitute the the purchase price that purchase price remains open because you've you've now incorporated a document sophisticated parties represented by counsel took a document that on its face had inconsistency and a disclaimer which they could have stricken to use two strokes of a pen and they didn't which indicates on its face that the parties did not intend to be banned by that document and yet that there would be a a right to a future in writing that they would both find mutually agreeable based on the conditions presumably at the time that they resume those negotiations we have ambiguity in the contract as to what it means for the parties to agree to terminations by purchase pursuant to a mutually acceptable purchase agreement i do not believe so because the these are plain english words that are are fairly clear mutually acceptable is mutually i have to agree you have to go you say it's even even mutually acceptable allows you to renegotiate a price that's that specified in here that might not seem apparent and to that extent i mean if you got  summary judgment in this case you now argue the arguments you're making suggest to me that there might be questions about the scope of what was income what was invision by mutually acceptable purchase agreement when your  means nothing more then meeting the criteria of the deal terms and reaching agreement on you know where the closing will be and on what date and less significant matters  well it's in the context of the law and if you look at show motion in and the cases cited in it those are real they all say two real estate deals which are typically done with a check and a deed and and then there's an ubiquitously across the country we use standard forms for real estate deals but on a mergers and acquisition asset sale for manufacturing operation rarely there are no forms there hand rafted are usually sixty five pages and and there's all sorts of  time is up but there are all sorts of tax characterizations there are many things that go into these that are that dictate the reason why there needs to be a formal writing for this kind of transaction as opposed to show motion and the and the other cases the iowa case where they cited to a form typically used in st joseph county for real estate contracts even bridge street they the re the reason why s s two was cited by the court was because there was an open term that needed to be agreed upon that iller terms it's a handcrafted thing that six essentially the same thing here we have a complex transaction that isn't just we agreed on a price and some assets the characterization of them the and how the parties are going to continue in the future to deal with each other such as the the non competition agreement terminates when the agreement terminates no matter how it terminates so that that still needs to be negotiated because there's an international operation and a domestic operation only the domestic operation was up for sale  a very brief the parties didn't leave anything open as it pertains to the essential terms for this deal and you don't need to look any further than the document itself to determine that's the case i'll take mr ian's worth of his word i was a part that would advise their client if they were saying they were being bound to it to put something like that in there with a specific purchase price and other things and while you there's no reason to resort to any pro level it's this is very clear on its face but we did cite in our it's yeah but there's an e mail from mr mosley where he told his lawyer they produce at least his lawyer said you may not want to put the purchase price in here because things could change and you might want more money later and he says oh no i agreed to that i agreed to the three million so i find it hard to believe that his lawyer who is of the record but but in any event you know i wouldn't be in there and again if the parties i think th fundamental feeling is this is not a provisional letter of intent i think the emperor case from the seventh circuit does a nice job of explaining this and the reason why is the difference between a letter of intent and an option and the reason i bring this up is the argument that this says manufacturing and distribution agreement but not manufacturing distribution and purchase agreement it doesn't have to say that there's all kinds of lease agreements commercial lease agreements and other things that contain purchase options in them they are not purchase agreements they do become a binding agreement when the option e except the option that's clear and at that point the parties oftentimes do and this is the scuffs in the emperor case they do have to sit down and paper their final transaction which is really all that needs to happen here you know to the point about the deal terms than a non binding language i think that's all subsumed in the fact that this is a fully integrated contract and that kind of goes to the wayside but again why would the sophisticated lawyers of that reference was intended to make it nonbinding go through all those different steps to try to get there why wouldn't they just say this is not binding they certainly knew how to do it when they did the term sheet so unless there's further questions i have nothing else to add ask is it may take a while for us to so that that we would do that we're happy happy to do that as we go along for sure and had some slight concern about having this argument on the theory that we might screw up your negotiations because it would seem so clear that one side was going to prevail here that would change the dynamic  but i suspect that what you've heard is that this is a very close matter and if either side wants to factor the potential result and this the peel into your negotiations you can only do that on the theory of do i feel lucky because it certainly sounds like we've got a lot to chew on in this in this appeal if we have to decide understood thank you though you sense learned over thirty days telling us