What is the test for an award of attorneys' fees under a merger agreement?

The utility of the above rule is illustrated by this appeal. First, the result of applying it here is fair. All the elements justifying an award of attorneys' fees were before the district court here. The parties do not dispute that the indemnification clause in the merger agreement, which the parties arrived at through arm's-length bargaining, gave defendants the right to collect reasonable attorneys' fees. Compare Engel v. Teleprompter Corp., 732 F.2d at 1240. The merger agreement and the indemnification clause were in evidence, the district court instructed the jury on the award of attorneys' fees, and the jury found that defendants should receive attorneys' fees. It would be unfair to deny that award merely because defendants had decided, based on common practice and with no reason to do otherwise, to wait until after

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