asset acquisitions - Jackson Walker LLP

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(c) all licenses, permits, certificates, franchises, registrations, authorizations,filings, consents, accreditations, approvals and other indicia of authority relating to the operationof the Business as presently conducted by Seller (collectively, the “Licenses and Permits”),which Licenses and Permits are listed in Schedule 5 attached hereto;(d) all benefits, proceeds or any other amounts payable under any policy ofinsurance maintained by Seller with respect to destruction of, damage to or loss of use of any ofthe Assets, but excluding all benefits, proceeds or any other amounts payable under any policy ofinsurance maintained by Seller with respect to the Business;(e) all deposits held by Seller in connection with future services to berendered by Seller in connection with the Business; andthe Business.(f)all warranties, guarantees, and covenants not to compete with respect to6. all the books, records, forms and files relating to the operations of the Business orreflecting the operations thereof, but excluding therefrom records reflecting the operations of theSeller as a whole or records to which Seller and Buyer shall have joint access thereto pursuant toother provisions of this Agreement.Without limiting the generality of the foregoing, the Assets shall include all such assetsas are included on the balance sheet of the Alpha Division of Seller bearing even date herewithas amended to reflect the condition of the Alpha Division as of the closing date.2415257v2Appendix D – Page 10
INTRODUCTION TO TRANSITIONAL SERVICES AGREEMENTIn a divisional purchase, the purchaser often does not acquire an entire free-standing businessbecause some of the services which were being provided to the divisional business were being providedby other departments of the seller or its affiliates or pursuant to third party contracts and, in all such cases,those service providers continue to provide their services to the non-purchased businesses and are not partof the acquisition. Depending upon its resources, this may lead the purchaser to request a transitionalservices agreement from the seller. The seller may view such an agreement as an accommodation on itspart because it had hoped to be completely free of the divisional business on closing. For these reasonsand because purchasers, when preparing their initial purchase documentation, may not appreciate thecomplexities of the transition or the timing constraints which may arise, many transitional servicesagreements are initially prepared by the seller’s counsel and many (including the one following) aresomewhat pro-seller. In the transitional services agreement which follows, the general thrust is to allowthe seller to continue its past internal practices and internal pricing allocations and it puts minimalrepresentation and warranty-type responsibility on the seller.The following transitional services agreement deals with certain common types of transitionalservices: HR services, MIS services and sales support services. However, it is intended to be aframework agreement into which any relevant transitional services could be placed with minimaladditional changes to the form of the agreement. For example, the agreement could deal with insurancemanagement and risk management, advertising and marketing services, and legal services. The first twoof these examples might be useful to a purchaser not only for reasons of timing but also because theseller may have favorable contracts on which the purchaser could effectively piggy-back for some interimperiod. By way of example, the following transitional services agreement includes both fixed priceservices and services priced on a fully allocated cost methodology.This transitional services agreement is designed for the types of services outlined above. Inpurchases and sales of divisions which are goods producing businesses, it may be necessary to prepare aseparate interim supply or contract manufacturing agreement. In some divisional purchase contexts, theremay be a need for interim patent, technology or trade mark licenses from the seller to the purchaser. Thefollowing transitional services agreement is not intended to include such agreements or licenses.The Model Asset Purchase Agreement was prepared on the basis of a purchase of substantially allof the assets of the seller and there was no need for a transitional services agreement. The followingtransitional services agreement was prepared as an independent form of agreement. Ordinarily, itsprovisions would dovetail into and be consistent with those of the purchase agreement to which it related.For example, if the Model Asset Purchase Agreement had been a divisional purchase, the provisionsregarding confidentiality in Section 6.1 of this transitional services agreement would have been revised toconform to those of Article 12 of the Model Agreement.With minor modifications, this transitional services agreement could be used in the context of adivisional asset purchase, the purchase of stock of a subsidiary which uses services of affiliates within itsgroup and the purchase of one division of a multi-national business where the divisional business isoperated as a subsidiary in some countries and a division in other countries.2415257v2Appendix D – Page 11
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ASSET ACQUISITIONS: A ROADMAP TO GE
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VIII. SELECTED ASSET PURCHASE AGREE
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(B) Introductory matters concerning
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on the deemed asset sale, since the
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administrative delays in addition t
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extended coverage for preclosing oc
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IV.SUCCESSOR LIABILITYA. Background
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much like a merger. The theory was
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essentially the same ingredients wh
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2. Structure of TransactionIf a tra
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indemnification. A portion of the p
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differing interests in the transact
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C. Gap Between Signing and ClosingO
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11.6 LIMITATIONS ON AMOUNT - BUYER.
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AgreementThe parties, intending to
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“Breach” -- any breach of, or a
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use, voting (in the case of any sec
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“Ground Lease” -- any long-term
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“Order” -- any order, injunctio
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“Part” -- a part or section of
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“Seller Contact” -- as defined
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COMMENTClauses (v), (vii), (viii) a
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parties should always pay close att
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consulting services to customers as
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diligence analysis (which typically
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Course of Business prior to the Eff
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uyer to negotiate the indemnificati
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2.5 ALLOCATIONThe Purchase Price sh
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satisfaction of some conditions may
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(iii) the Escrow Agreement, execute
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Once a certified check has been cer
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espect to the Real Property and Tan
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work papers and other documents and
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expressly provide for arbitration i
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Closing, the parties shall use Best
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Alternatively, the Buyer can elect
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1980s and the Year 2000 representat
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(b) Except as set forth in Part 3.2
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clause (iv) of Section 3.2(b), the
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4. recorded agreements or declarati
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audit committee thereof during the
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166 (1991). The buyer is unlikely t
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the happening of which may bring in
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(iii) Consolidated Group. Seller (A
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Certain provisions of Section 3.14
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the circumstances described above,
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was some variation from agreement t
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declared) occurring after the date
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and entering into a commercial deal
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3.25 INTELLECTUAL PROPERTY ASSETS(a
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(ii) All of the registered Copyrigh
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Section 3.25(d) requires disclosure
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the seller has many unregistered tr
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Copyrights: 17 U.S.C. §102(a) prov
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The buyer should also investigate a
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forced to dispose of the assets or
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supplement to the Disclosure Letter
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Property and Tangible Personal Prop
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The seller may want the contract to
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only a right to be conferred with,
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(including, for example, lenders) t
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Section 5.6 is not qualified by a
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offices, and the assets to be trans
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The last significant change in Revi
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Materiality Qualification in Sectio
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“brought down” to the Closing D
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materially inaccurate as of the clo
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indebtedness represented by such no
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Section 7.5 relates only to litigat
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A seller may take the position that
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Buyer shall have obtained on terms
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and (d) have no materiality test. T
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the part of the seller. In lieu of
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enefits and salary and wage structu
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to the sale of any property to the
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prohibits the Buyer from making any
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for stock ownership in a public com
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investigation or assessment) conduc
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sue on the breach, under the common
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should be limited to situations in
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eaches of noncompetition agreements
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third party claims); Edward E. Gill
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allegedly arising from any Hazardou
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process or are to be anticipated fr
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If Buyer would have a claim for ind
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attorneys request that representati
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can, as a practical matter, withhol
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(c) Notwithstanding the foregoing,
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Environmental indemnification often
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North Dakota, and Delaware require
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Because Article 12 assumes that a c
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Section 12.2(a) follows the same ge
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The Disclosing Party is not waiving
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Although the attorney-client privil
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changes hands, whether the attorney
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Page 193 and 194: In deciding whether a jury waiver c
Page 195 and 196: factors, particularly concern over
Page 197 and 198: parties shall share equally the fee
Page 199 and 200: compensated in all cases by monetar
Page 201 and 202: incorporated into) the terms of the
Page 203 and 204: (1) The law of the state chosen by
Page 205 and 206: disputes arising out of that contra
Page 207 and 208: 1989). In Acushnet River, the Unite
Page 209 and 210: The Court then set forth the factor
Page 211 and 212: Citizens held itself out to the wor
Page 213 and 214: Appendix BEXCERPTS FROM BYRON F. EG
Page 215 and 216: corporation’s assets is not liabl
Page 217 and 218: the injured party, and who can best
Page 219 and 220: Over time, some courts have used le
Page 221 and 222: 5. retention of the same name;6. co
Page 223 and 224: where strict tort liability for def
Page 225 and 226: In Knapp, 55 in addition to the de
Page 227 and 228: 3. Labor, Employment & Benefits Cas
Page 229 and 230: 5. Contract CasesIn certain instanc
Page 231 and 232: 4. Choice of LawIn transactions whe
Page 233 and 234: Appendix DACQUISITION OF A DIVISION
Page 235 and 236: schedule of payables at the date of
Page 237 and 238: 2. Even if buyer’s counsel is com
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Page 241: EXAMPLE 1SAMPLE DESCRIPTION OF ASSE
Page 245 and 246: 1.3 “Fully Allocated Cost” shal
Page 247 and 248: 5. Force Majeure5.1 Seller shall no
Page 249 and 250: To Buyer:■12. Entire Agreement12.
Page 251 and 252: SCHEDULE 1.2FIXED PRICE SERVICES PR
Page 253 and 254: SCHEDULE 1.4HR SERVICESHR Services
Page 255 and 256: Appendix EHypothetical Scenarios1.I
Page 257 and 258: — Section 3.29 (no Shareholder ow
Page 259 and 260: Note that, if Buyer elects to exerc
Page 261 and 262: damages as a result of the Blocking
Page 263 and 264: down” certificate expressly state
Page 265 and 266: The failure to disclose the Blockin
Page 267 and 268: • Seller received no threat of li
Page 269 and 270: 2. If Buyer proceeds with the asset
Page 271 and 272: neither strategically significant n
Page 273 and 274: to the closing date, and Seller wil
Page 275 and 276: 11.2(a) and (f)) Seller may attempt
Page 277 and 278: pursuant to Section 2.7(a)(ix) expr
Page 279 and 280: Parent, Parent shall take all such
Page 281 and 282: (b) The Company shall give prompt n
Page 283 and 284: stockholders ratified the merger ag
Page 285 and 286: available to us or our Representati
Page 287 and 288: Section 5.08. Financial Statements.
Page 289 and 290: capital contributions to or investm
Page 291 and 292: The Disclosure Schedule further sta
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construed in light of such disclosu
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and (ii) did not contain any untrue
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the Mergers shall be subject to the
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discount. Enron claims that the onl
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that the primary agencies who assig
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Appendix JIN THE UNITED STATES COUR
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Fina shall indemnify, defend and ho
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. Application of Delaware lawFina h
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provision was signed can the courts
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The sophistication of the contracti
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