Posted: November 29th, 2014

Caselaw and letter of Intent

Caselaw and letter of Intent

Order Description

This is not an essay. This is coursework.

PART 1 – Pensoil CASE – (2 pages)
Question 1 = Answer 1 – one page
Question 2 = Answer 2 – one page

PART II – DRAFT a LETTER of INTENT – (2 pages).

Part 1 – TEXACO-PENSOIL CASE
1.    Why did the Court in the Pennzoil case hold that there was a binding contract despite Texaco’s assertion that there was only an “agreement in principle”.

2.    Explain where Getty may have gone wrong in the Pennzoil case in not keeping the offer open a sufficient amount of time before they were legally bound.
Part II – LETTER OF INTENT
1.    Assuming you represent the Getty Corporation, draft a two-page letter of intent that incorporates the essential provisions for creating a non-binding agreement until a final contract is signed, yet provides essential binding provisions to preserve confidentiality and prevent solicitation during the negotiation period.

729 S.W.2d 768, 55 USLW 2454
Court of Appeals of Texas,
Houston (1st Dist.).
TEXACO, INC., Appellant,
v.
PENNZOIL, CO., Appellee.
No. 01-86-0216-CV.
Feb. 12, 1987.
Rehearings Denied April 24 and May 26, 1987.
Prospective stock buyer brought action alleging tortious interference with contract for stock purchase-merger. The 151st District Court, Harris County, Solomon Casseb, J., awarded damages to prospective stock buyer on jury verdict, and alleged interferer appealed. The Court of Appeals, Warren, J., held that: (1) evidence supported finding that there was binding contract and that defendant knowingly induced breach of contract; (2) defendant was not entitled to recusal of retired judge substituted for initial presiding judge due to illness of initially presiding judge; and (3) punitive damages of three billion dollars were excessive, under New York court decisions, and remittitur of two billion dollars would be accordingly suggested.

Ordered accordingly.

SPECIAL ISSUE NO. 1
Texaco contends that under controlling principles of New York law, there was insufficient evidence to support the jury’s finding that at the end of the Getty Oil board meeting on January 3, the Getty entities intended to bind themselves to an agreement with Pennzoil.

Pennzoil responds that the question of the parties’ intent is a fact question, and the jury was free to accept or reject Texaco’s after-the-fact testimony of subjective intent. Pennzoil contends that the evidence showed that the parties intended to be bound to the terms in the Memorandum of Agreement plus a price terms of $110 plus a $5 stub, even though the parties may have contemplated a later, more formal document to memorialize the agreement already reached. Pennzoil also argues that the binding effect of the Memorandum of Agreement was conditioned only upon approval of the board, not also upon execution of the agreement by a Getty signator.

Under New York law, if parties do not intend to be bound to an agreement until it is reduced to writing and signed by both parties, then there is no contract until that event occurs. Scheck v. Francis, 26 N.Y.2d 466, 311 N.Y.S.2d 841, 260 N.E.2d 493 (1970). If there is no understanding that a signed writing is necessary before the parties will be bound, and the parties have agreed upon all substantial terms, then an informal agreement can be binding, even though the parties contemplate evidencing their agreement in a formal document later. Municipal Consultants & Publishers, Inc. v. Town of Ramapo, 47 N.Y.2d 144, 417 N.Y.S.2d 218, 220, 390 N.E.2d 1143, 1145 (1979); R.G. Group, Inc. v. Horn & Hardart Co., 751 F.2d 69, 74 (2d Cir.1984).

If the parties do intend to contract orally, the mere intention to commit the agreement to writing does not prevent contract formation before execution of that writing, Winston v. Mediafare Entertainment Corp., 777 F.2d 78, 80 (2d Cir.1985), and even a failure to reduce their promises to writing is immaterial to whether they are bound. Schwartz v. Greenberg, 304 N.Y. 250, 107 N.E.2d 65 (1952).

However, if either party communicates the intent not to be bound before a final formal document is executed, then no oral expression of agreement to specific terms will constitute a binding contract. Winston, 777 F.2d at 80; R.G. Group, 751 F.2d at 74.

Thus, under New York law, the parties are given the power to obligate themselves informally or only by a formal signed writing, as they wish. R.G. Group, 751 F.2d at 74. The emphasis in deciding when a binding contract exists is on intent rather than on form. Reprosystem, B.V. v. SCM Corp., 727 F.2d 257, 261 (2d Cir.), cert. denied, 469 U.S. 828, 105 S.Ct. 110, 83 L.Ed.2d 54 (1984).

It is the parties’ expressed intent that controls which rule of contract formation applies. To determine intent, a court must examine the words and deeds of the parties, because these constitute the objective signs of such intent. Winston, 777 F.2d at 80; R.G. Group, 751 F.2d at 74. Only the outward expressions of intent are considered-secret or subjective intent is immaterial to the question of whether the parties were bound. Porter v. Commercial Casualty Insurance Co., 292 N.Y. 176, 54 N.E.2d 353 (1944).

Several factors have been articulated to help determine whether the parties intended to be bound only by a formal, signed writing: (1) whether a party expressly reserved the right to be bound only when a written agreement is signed; (2) whether there was any partial performance by one party that the party disclaiming the contract accepted; (3) whether all essential terms of the alleged contract had been *789 agreed upon; and (4) whether the complexity or magnitude of the transaction was such that a formal, executed writing would normally be expected. Winston, 777 F.2d at 80; R.G. Group, 751 F.2d at 76.

Evaluating the first factor, Texaco contends that the evidence of expressed intent not to be bound establishes conclusively that there was no contract at the time of Texaco’s alleged inducement of breach. Texaco argues that this expressed intent is contained in (1) the press releases issued by the Getty entities and Pennzoil, which stated that “the transaction is subject to execution of a definitive merger agreement”; (2) the phrasing of drafts of the transaction agreement, which Texaco alleges “carefully stated that the parties’ obligations would become binding only ‘after the execution and delivery of this Agreement’ ”; and (3) the deliberate reference by the press releases to the parties’ understanding as an “agreement in principle.”

[1]  In its brief, Texaco asserts that, as a matter of black letter New York law, the “subject to” language in the press release established that the parties were not then bound and intended to be bound only after signing a definitive agreement, citing Banking & Trading Corp. v. Reconstruction Finance Corp., 147 F.Supp. 193, 204 (S.D.N.Y.1956), aff’d, 257 F.2d 765 (2d Cir.1958). The court in that case stated that “if the agreement is expressly subject to the execution of a formal contract, this intent must be respected and no contract found until then.” However, the court went on to say that where intent is less sharply expressed, the trier of fact must determine it as best he can. Id. at 204-05. Although the intent to formalize an agreement is some evidence of an intent not to be bound before signing such a writing, it is not conclusive. Id. at 204. The issue of when the parties intended to be bound is a fact question to be decided from the parties’ acts and communications. Id.; see Chromalloy American Corp. v. Universal Housing Systems of America, Inc., 495 F.Supp. 544, 550 (S.D.N.Y.1980), aff’d, 697 F.2d 289 (2d Cir.1982).

The press release issued first by Getty, then by Pennzoil, on January 4, 1984, stated:

Getty Oil Company, The J. Paul Getty Museum and Gordon Getty, as Trustee of the Sarah C. Getty Trust, announced today that they have agreed in principle with Pennzoil Company to a merger of Getty Oil and a newly formed entity owned by Pennzoil and the Trustee.

In connection with the transaction, the shareholders of Getty Oil … will receive $110 per share cash plus the right to receive a deferred cash consideration in a formula amount. The deferred consideration will be equal to a pro rata share of the … proceeds, in excess of $1 billion, … of ERC Corporation, … and will be paid upon the disposition. In any event, under the formula, each shareholder will receive at least $5 per share within five years.

Prior to the merger, Pennzoil will contribute approximately $2.6 billion in cash and the Trustee and Pennzoil will contribute the Getty Oil shares owned by them to the new entity. Upon execution of a definitive merger agreement, the … tender offer by a Pennzoil subsidiary for shares of Getty Oil stock will be withdrawn.

The agreement in principle also provides that Getty Oil will grant to Pennzoil an option to purchase eight million treasury shares for $110 per share.

The transaction is subject to execution of a definitive merger agreement, approval by the stockholders of Getty Oil and completion of various governmental filing and waiting period requirements.

Following consummation of the merger, the Trust will own 4/7ths of the … stock of Getty Oil and Pennzoil will own 3/7ths. The Trust and Pennzoil have also agreed in principle that following consummation of the merger they will endeavor in good faith to agree upon a plan for restructuring Getty Oil [within a year] and that if they are unable to reach such an agreement then they will cause a division of assets of the company. (Emphasis added.)

*790 Any intent of the parties not to be bound before signing a formal document is not so clearly expressed in the press release to establish, as a matter of law, that there was no contract at that time. The press release does refer to an agreement “in principle” and states that the “transaction” is subject to execution of a definitive merger agreement. But the release as a whole is worded in indicative terms, not in subjunctive or hypothetical ones. The press release describes what shareholders will receive, what Pennzoil will contribute, that Pennzoil will be granted an option, etc.

The description of the transaction as subject to a definitive merger agreement also includes the need for stockholder approval and the completion of various governmental filing and waiting requirements. There was evidence that this was a paragraph of routine details, that the referred to merger agreement was a standard formal document required in such a transaction under Delaware law, and that the parties considered these technical requirements of little consequence.

There is also an arguable difference between a “transaction” being subject to various requirements and the formation of the agreement itself being dependent upon completion of these matters. In F.W. Berk & Co. v. Derecktor, 301 N.Y. 110, 92 N.E.2d 914 (1950), cited in Texaco’s brief, the defendant’s very acceptance of the plaintiff’s order was made subject to the occurrence of certain events. The court defined the phrase “subject to” as being the equivalent of “conditional upon or depending on” and held that making the acceptance of an offer subject to a condition was not the kind of assent required to make it a binding promise. However, making the acceptance of an offer conditional, or expressly making an agreement itself conditional, is a much clearer expression of an intent not to be bound than the use of the more ambiguous word “transaction.”

Other cases cited by Texaco involved writings that specifically stated that no party would be committed until a written contract was executed. See, e.g., Reprosystem, B.V., 727 F.2d at 260 (draft agreements clearly stated that formal execution was required before the contract would have any binding effect); Chromalloy American Corp., 495 F.Supp. at 547-48 (letter of intent stated that neither party would be committed until a contract was executed). Yet, despite the clear language of reservation in those cases, the parties’ intent to be bound was still evaluated as a question of fact to be determined from all the circumstances of the case. Reprosystem, B.V., 727 F.2d at 261-62; Chromalloy American Corp., 495 F.Supp. at 550.

So it is here. Regardless of what interpretation we give to the conditional language in the press release, we conclude that it did not so clearly express the intent of the parties not to be bound to conclusively resolve that issue, as Texaco asserts.

[2]  Texaco also contends that explicit language of reservation in drafts of Pennzoil’s transaction agreement indicates the parties’ expressed intent not to be bound without a signed writing. Texaco asserts that “Pennzoil’s lawyers carefully stated that the parties’ obligations would become binding only ‘after the execution and delivery of this Agreement.’ ”

That assertion is not accurate. In fact, “after the execution and delivery of this Agreement” was merely used as an introductory phrase before each party’s obligations were described, e.g., after the execution and delivery of this Agreement, Pennzoil shall terminate the tender offer; … Pennzoil and the Company shall terminate all legal proceedings; … the Company shall purchase all shares held by the Museum; etc. Other clauses in the transaction agreement did not contain that phrase, e.g., the Company hereby grants to Pennzoil the option to purchase up to 8 million shares of treasury stock; on or prior to the effective date, Pennzoil and the Trustee shall form the merging company; etc.

A reasonable conclusion from reading the entire drafts is that the phrase “after the execution and delivery of this Agreement” was used chiefly to indicate the timing of various acts that were to occur, and not to impose an express precondition to *791 the formation of a contract. Compare Reprosystem, B.V., 727 F.2d at 262 (“when executed and delivered,” the agreement would become “a valid and binding agreement”). Again, the language upon which Texaco relies does not so clearly express an intent not to be bound to resolve that issue or to remove the question from the ambit of the trier of fact.

Next, Texaco states that the use of the term “agreement in principle” in the press release was a conscious and deliberate choice of words to convey that there was not yet any binding agreement. Texaco refers to defense testimony that lawyers for Getty Oil and the Museum changed the initial wording of the press release from “agreement” to “agreement in principle” because they understood and intended that phrase to mean that there was no binding contract with Pennzoil.

Texaco cites Mine Safety Appliance Co. v. Energetics Science, Inc., No. 75 Civ. 4925, slip op. at 3, n. 2 (S.D.N.Y., Feb. 5, 1980), an unreported case where the court in dicta characterized an agreement in principle as “a far cry from a final contract.” However, the court in that case acknowledged that intent to be bound was a fact issue. A motion to declare an alleged agreement binding and enforceable was denied, because the court found that a question of material fact had been raised on whether the non-movants intended to be bound. In another of Texaco’s cited cases, Debreceni v. Outlet Co., 784 F.2d 13, 18 (1st Cir.1986), an offer was subject to the execution of definitive agreements of sale, and the agreement itself provided that it would become a binding obligation only after execution. Applying New York law, the court stated that the parties would not be bound until a written agreement was executed if that was their intention.

Pennzoil and Texaco presented conflicting evidence at trial on the common business usage and understanding of the term “agreement in principle.” Texaco’s witnesses testified that the term is used to convey an invitation to bid or that there is no binding contract. Pennzoil’s witnesses testified that when business people use “agreement in principle,” it means that the parties have reached a meeting of the minds with only details left to be resolved. There was testimony by Sidney Petersen, Getty Oil’s chief executive officer, that an “agreement in principle” requires the parties to proceed to try to implement the details of the agreement in good faith, and that that was the case with the agreement in principle with Pennzoil.

[3]  [4]  The jury was the sole judge of the credibility of the witnesses and was entitled to accept or reject any testimony it wished, as well as to decide what weight to give the testimony. Rego Co. v. Brannon, 682 S.W.2d 677, 680 (Tex.App.-Houston [1st Dist] 1984, writ ref’d n.r.e.). There was sufficient evidence at trial on the common business usage of the expression “agreement in principle” and on its meaning in this case for the jury reasonably to decide that its use in the press release did not necessarily establish that the parties did not intend to be bound before signing a formal document.

A second factor that may indicate whether the parties intended to be bound only by a signed, formal writing is whether there was partial performance by one party that the party disclaiming the contract accepted. Winston, 777 F.2d at 80; R.G. Group, 751 F.2d at 76.

Texaco asserts that there was no partial performance that would indicate an intent to be bound, but conversely, that the conduct of the parties here was inconsistent with the existence of a binding contract.

Texaco points out that Pennzoil amended its tender offer statement with the SEC on January 4, stating its intent to withdraw the tender offer “if” a definitive merger agreement was executed. Pennzoil filed a copy of the press release to update its SEC statement. Texaco claims that Pennzoil would have been required to withdraw the tender offer under SEC rule 10b-13, 17 C.F.R. § 240.10b-13 (1985), if a binding contract had existed on that date. These contentions will be discussed later in this opinion. Texaco also argues that Getty Oil and the other Getty entities demonstrated a belief that no contract existed yet by actively*792 soliciting other bids for the purchase of Getty Oil and by representing to Texaco that they were free to deal.

Pennzoil points out that Texaco’s alleged interference with Pennzoil’s agreement occurred scarcely 48 hours after the agreement came into existence, and there was very little time for any performance under the agreement to have occurred. Pennzoil asserts that there was affirmative partial performance nevertheless, in that representatives of Pennzoil and the Trust worked to coordinate the issuance of a joint press release, as provided by the Memorandum of Agreement upon approval of the plan, and also in that Pennzoil made arrangements to have $1 billion in cash available for the payment of the Museum’s shares in escrow.

[5]  [6]  Other than the preliminary financial arrangements made by Pennzoil, we find little relevant partial performance in this case that might show that the parties believed that they were bound by a contract. However, the absence of relevant part performance in this short period of time does not compel the conclusion that no contract existed. Texaco has pointed out that there was some conduct inconsistent with the existence of an intent to be bound to a contract. But partial performance, and on the other hand, conduct that is inconsistent with an intent to be bound, are again merely circumstances that the finder of fact could consider in reaching a decision on whether the parties intended to be bound. The evidence on the parties’ conduct was presented to the jury, which could either accept or reject the inferences the parties asked it to draw from these facts.

The next factor showing intent to be bound is whether there was agreement on all essential terms of the alleged agreement. Texaco contends that numerous items of “obvious importance” were still being negotiated at the time Pennzoil claims a contract had been formed.

First, Texaco asserts that there was no agreement on which party would buy the Museum’s stock. Pennzoil contends that its contract was formed on January 3, and that intent to be bound must be determined as of that date. The jury specifically found, in response to Special Issue No. 6, that at the end of the January 3 board meeting, the Getty Oil Company, the Museum, the Trust, and Pennzoil each intended to be bound to an agreement that provided that Getty Oil would purchase the Museum’s shares forthwith as provided in the Memorandum of Agreement. There is evidence in the record to support this finding.

The Copley notes of the Getty Oil board meeting (made by Ralph Copley, General Counsel, and Secretary of the Board of Getty Oil) reflect that at the board meeting on January 3, all but one of Getty’s directors voted to accept “the Pennzoil proposal,” provided that the price being paid per share was $110 plus a minimum $5 stub. The testimony is sharply conflicting on exactly what the “Pennzoil proposal” was that the board approved, as are the inferences that could be drawn from the record of that board meeting.

Texaco’s witnesses testified that the Getty board approved only a price proposal by Pennzoil, a basis upon which to negotiate further, and not the other terms originally presented to the board in the Memorandum of Agreement, which Texaco contends was rejected by the board and never considered again after that first vote. Pennzoil’s evidence showed that the only “Pennzoil proposal” before the board was the terms contained in the Memorandum of Agreement, which among other things provided that Getty Oil was to buy the Museum’s shares. The Memorandum of Agreement was signed by representatives of Pennzoil and of the Museum and the Trust, holders of a majority of Getty’s shares, and was subject only to approval of the board of Getty Oil. The terms described in the press release issued by the Getty entities and then by Pennzoil the next day correspond to those contained in the Memorandum of Agreement except for the higher price term.

[7]  It was the jury’s task to judge the credibility of the witnesses, to resolve conflicts in the factual evidence, and to decide which inferences to draw from the evidence presented. *793 LeMaster v. Fort Worth Transit Co., 138 Tex. 512, 160 S.W.2d 224 (1942). The reviewing court may not substitute its own opinion for that of the jury on these matters. We find that there was sufficient evidence to support the jury’s finding that at the end of the Getty Oil board meeting on January 3, the parties had reached agreement on Getty’s purchase of the Museum’s shares.

There was evidence that the parties were made aware, on January 4, that Getty’s purchase of the Museum’s shares might trigger a tax penalty applicable to sales of stock between charitable trusts and related entities. It was agreed that this possibility had to be explored, and further discussions developed the alternative of having Pennzoil, rather than Getty Oil, buy the Museum’s shares. The Museum’s attorney drafted an escrow agreement to effect Pennzoil’s purchase of those shares. There was testimony that Pennzoil also began making arrangements to have the necessary cash available in escrow.

There is sufficient evidence to refute Texaco’s assertion that the question of who would buy the Museum’s shares was a significant open issue that the parties had not agreed upon at the time Pennzoil contends, and the jury found, the parties intended to be bound. Nor does the conflicting evidence of events after January 3 compel the conclusion that the parties considered it a problem that Pennzoil, rather than Getty Oil, would be buying the Museum’s shares.

There was evidence that the Museum’s main concerns were price protection and that its shares would be purchased at once. The Museum’s attorney suggested that any potential tax problem could be avoided by having Pennzoil buy its shares, and she drafted an escrow agreement for effecting this. Pennzoil’s witnesses testified that Pennzoil did not object to this change of mechanics from the original agreement. Under the alleged agreement, Pennzoil was to purchase 24 million shares, and Pennzoil’s CEO testified that it made no difference to Pennzoil which 24 million shares it bought. Although one of Getty’s attorneys had expressed an objection to Pennzoil’s buying the Museum shares, he also objected to Getty Oil itself buying those shares, as provided in the Memorandum of Agreement. There was concern, he said, that if Pennzoil and the Trust acquired control of Getty before buying all outstanding shares, the remaining public shares would not be bought at the same price. However, the Memorandum of Agreement and the press release both stated the same price to be paid to all selling shareholders. There was also testimony that the attorneys representing Getty Oil, the Museum, and the Trust agreed on January 5 that it was better to have Pennzoil rather than Getty buy the Museum’s shares.

[8]  Texaco lists the extent of the Museum’s “top up” price protection as another open issue showing the lack of the parties’ intent to be bound.

The “top up” provision in the Memorandum of Agreement guaranteed that the Museum would receive a higher price per share than specified if anyone buying at least 10 percent of the stock paid a higher price for those shares. This provision effectuated the Museum’s requirement of price protection for the sale of its Getty shares, should Pennzoil or the company pay another shareholder a higher price. Pennzoil’s president acknowledged that Pennzoil was bound to the “top up” clause in the Memorandum of Agreement, which was signed by Pennzoil and the Museum, and which Pennzoil alleges became a binding contract upon its approval, with a higher price term, by the Getty board on January 3. Though no “top up” clause appeared in the first draft of the transaction agreement, such provisions were contained in subsequent drafts. The evidence as a whole does not support Texaco’s contention that the parties did not reach agreement on price protection for the Museum, or that it remained a significant open issue.

[9]  Next, Texaco argues that the parties never resolved a number of questions relating to the payment of Getty’s first quarter dividend and to the $5 stub that was to be part of the consideration for the Getty Oil shares. The stub represented the minimum payment shareholders were to receive*794 within 5 years from the excess proceeds from the sale of ERC.

Getty’s outside counsel, Winokur, testified that open issues remained on who would control the sale, who would guarantee payment of the stub in the event of liquidation, how “net proceeds” would be defined, and what ERC’s dividend policy would be under the new ownership. Pennzoil points out that the Copley notes of the board meeting do not show that the Getty Oil board expressed any concern over the mechanics of the ERC sale before it approved the Pennzoil proposal on January 3. Pennzoil’s CEO testified that none of the parties ever brought up these matters at all before the agreement was made, and that Pennzoil was never told that resolution of such questions was essential to the agreement. There was evidence that the Getty entities’ main concern was the price that shareholders would receive for their shares, and that questions over the exact mechanics of achieving that price were no obstacle to reaching agreement on the transaction.

Nor does the evidence show that Getty’s first quarter dividend was an important unresolved issue. There was evidence that Pennzoil did not object to paying the dividend, and that there were customary ways of handling such questions in a merger situation. Pennzoil considered the amount involved insignificant in relation to the magnitude of the entire transaction. The jury was entitled to resolve the contradicting testimony on the significance of these matters and to decide the implications on the question of the parties’ intent.

[10]  Texaco also asserts, again based on the testimony of its witness Winokur, that the parties never reached agreement on whether the definitive agreement would ensure that once Pennzoil and the Trust acquired control, they could not avoid the commitment to purchase the remaining outstanding public shares.

Pennzoil’s witnesses testified that Pennzoil considered itself bound to the terms of the Memorandum of Agreement after the Getty board approved the transaction on January 3. The Memorandum of Agreement was signed by representatives of Pennzoil, the Trust, and the Museum before it was presented to the Getty board. The terms of the Memorandum of Agreement provided for the purchase of all outstanding shares at the same price.

As stated above, there was conflicting evidence on whether the board approved the transaction contemplated by the Memorandum of Agreement with a higher price term, or whether, as Texaco contends, it approved only a price proposal that was to form the basis for further negotiations. The press release issued the morning after the board meeting listed essentially the same terms as the Memorandum of Agreement, with the exception of price per share, in describing the transaction agreed upon in principle by the parties. All selling shareholders were to receive the same price. There was evidence that the board was concerned chiefly with the price per shares it could achieve for all the shareholders of Getty, and not with the mechanics of the transaction.

There was sufficient evidence for the jury to believe that the board approved more than just a price proposal, i.e., the Memorandum of Agreement terms modified by a higher price term. The jury could reasonably infer that, by those terms, Pennzoil and the Trust had agreed to pay the same price for all outstanding shares. There was very little evidence, other than Winokur’s conjecture, that Pennzoil sought any “out” to its obligations under the agreement conflicting with the interests expressed by Getty.

Texaco does not assert that a specific essential term was completely omitted from the agreement, but rather alleges very briefly why the terms of the agreement found by the jury are fatally incomplete. Texaco cites to the lack of description of the mechanics of various aspects of the transaction, e.g., how and when the determined price would be paid to shareholders, how the agreed stock ownership ratio was to be achieved, how a potential tax penalty on Getty’s purchasing the Museum shares would be resolved, and what limitations, if any, existed on the option granted to Pennzoil to buy 8 million shares of Getty Oil stock.

Texaco’s attempts to create additional “essential” terms from the mechanics of implementing the agreement’s existing provisions are unpersuasive. The terms of the agreement found by the jury are supported by the evidence, and the promises of the parties are clear enough for a court to recognize a breach and to determine the damages resulting from that breach. Point of Error 47 is overruled.

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