asset acquisitions - Jackson Walker LLP

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SCHEDULE 1.5MIS SERVICES(a)(b)MIS Services. The MIS Services shall include all computer and data processing servicesand support as provided to the Business in accordance with recent historical practice, aswell as the expiration/termination assistance described in paragraph 2 below.Expiration/Termination Assistance. Seller will, upon 60 days’ notice, provide allreasonable expiration/termination assistance requested by Buyer, including, withoutlimitation, the following:- cooperating with Buyer in effecting the orderly transfers of the MIS Services to athird party provider or in connection with the resumption of the services byBuyer, including during a period of parallel operations between the MIS Servicesprovided hereunder and any replacement system being developed and tested byBuyer;- using such services as may be requested by Buyer in connection with the transferof the services to a third party or the resumption of the services by Buyer;- notifying all vendors and third-party outsourcers of procedures to be followedduring the termination assistance period;- generating and delivering to Buyer a tape and computer listing of the source codeand copies of technical documentation for the software applications covered underthe Software License Agreement, dated as of _______________, between Sellerand Buyer;- unloading the production and test data bases;- delivering tapes or other media requested by Buyer of production data bases to thenew operations staff.2415257v2Appendix D – Page 22
Appendix EHypothetical Scenarios1.INTRODUCTIONThe following hypothetical scenarios illustrate the operation and interaction among:• Seller’s representations in Section 3 of the Model Asset Purchase Agreement;• Seller’s pre-closing notification covenant in Section 5.5 of the Model AssetPurchase Agreement (which contemplates the delivery of supplements to Seller’sDisclosure Letter);• the closing condition in Section 7.1(a) of the Model Asset Purchase Agreement(relating to the accuracy of Seller’s representations); and• the indemnification provisions in Section 11 of the Model Asset PurchaseAgreement.With respect to each scenario, two key questions are posed:1. Can Buyer refuse to consummate the asset purchase without liability to Seller(in other words, does Buyer have a “walk right”)?2. If Buyer proceeds with the asset purchase, will Seller be required to indemnifyBuyer with respect to the Blocking Patent?In addition, in scenarios in which Buyer has a “walk right” as a result of the BlockingPatent and elects to exercise that “walk right” (by terminating the asset purchase), it isappropriate to pose a further question—Can Buyer nonetheless recover damages from Seller byreason of the facts assumed (in other words, can Buyer “walk and sue”)?The answers to these questions are of considerable importance to the parties.Accordingly, it is vital that the parties’ attorneys fully understand the complex interaction amongthe various provisions of the Model Asset Purchase Agreement bearing on these questions.For additional discussions of the issues addressed in this Appendix, see the Commentaryto Section 2.7(a)(ix) of the Model Asset Purchase Agreement under the caption “Parties’ ClosingCertificates”; the Commentary to Section 5.5 of the Model Asset Purchase Agreement; theCommentary to Section 7.1 of the Model Asset Purchase Agreement under the captions “Time asof Which Accuracy of Representations Is Determined,” “Effect of Disclosure LetterSupplements,” and “Supplemental ‘Bring Down’ Representation”; and the Commentary toSections 11.1 and 11.2 of the Model Asset Purchase Agreement.2415253v1Appendix E – Page 1
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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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“Delaware courts have not hesitat
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In deciding whether a jury waiver c
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factors, particularly concern over
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parties shall share equally the fee
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compensated in all cases by monetar
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incorporated into) the terms of the
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Page 207 and 208: 1989). In Acushnet River, the Unite
Page 209 and 210: The Court then set forth the factor
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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
Page 239 and 240: name which is material to the value
Page 241 and 242: EXAMPLE 1SAMPLE DESCRIPTION OF ASSE
Page 243 and 244: INTRODUCTION TO TRANSITIONAL SERVIC
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: SCHEDULE 1.4HR SERVICESHR Services
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
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Page 267 and 268: • Seller received no threat of li
Page 269 and 270: 2. If Buyer proceeds with the asset
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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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Page 299 and 300: discount. Enron claims that the onl
Page 301 and 302: that the primary agencies who assig
Page 303 and 304: 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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