asset acquisitions - Jackson Walker LLP

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obligation. Dynegy’s unlawful termination of the Merger Agreement hastorn a hole in Enron’s business and caused Enron to suffer billions ofdollars in damages. In addition, Dynegy now has exacerbated that damageby using its invalid termination of the Merger Agreement and thebankruptcy filing it caused as a basis to fraudulently exercise the Optionand thereby misappropriate the Pipeline.9. In sum, having desperately coveted the opportunity to acquireand eliminate its injured arch-rival at a steep discount, Dynegy enteredinto the Merger Agreement and bound itself to consummate the Merger.Dynegy got nervous about the transaction due to the very problems thatDynegy was fully cognizant of from the beginning and had theopportunity to explore in its pre-Merger Agreement due diligence -- andthat were precisely what enabled Dynegy to get the deal at a discount pricein the first place. Dynegy then took affirmative action to undermine andrenege on the Merger Agreement and wrongfully exercise the Option.Dynegy should be held fully accountable for its unlawful conduct.3068472v1Appendix I – Page 9
Appendix JIN THE UNITED STATES COURT OF APPEALSFOR THE FIFTH CIRCUIT200 F.3rd 266____________________________No. 98-41021____________________________FINA, INC., formerly known as American Petrofina, Inc.;FINA OIL & CHEMICAL CO., formerly known as AmericanPetrofina Company of Texas,Plaintiffs-Counter Defendants-Appellants,ARCO,versusDefendant-Cross Claimant-Appellee,3018332v1Appendix J - 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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(1) The law of the state chosen by
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disputes arising out of that contra
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1989). In Acushnet River, the Unite
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The Court then set forth the factor
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Citizens held itself out to the wor
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Appendix BEXCERPTS FROM BYRON F. EG
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corporation’s assets is not liabl
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the injured party, and who can best
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Over time, some courts have used le
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5. retention of the same name;6. co
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where strict tort liability for def
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In Knapp, 55 in addition to the de
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3. Labor, Employment & Benefits Cas
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5. Contract CasesIn certain instanc
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4. Choice of LawIn transactions whe
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Appendix DACQUISITION OF A DIVISION
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schedule of payables at the date of
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2. Even if buyer’s counsel is com
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name which is material to the value
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EXAMPLE 1SAMPLE DESCRIPTION OF ASSE
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INTRODUCTION TO TRANSITIONAL SERVIC
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1.3 “Fully Allocated Cost” shal
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5. Force Majeure5.1 Seller shall no
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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
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Page 261 and 262: damages as a result of the Blocking
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Page 269 and 270: 2. If Buyer proceeds with the asset
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Page 275 and 276: 11.2(a) and (f)) Seller may attempt
Page 277 and 278: pursuant to Section 2.7(a)(ix) expr
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Page 281 and 282: (b) The Company shall give prompt n
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Page 285 and 286: available to us or our Representati
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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: that the primary agencies who assig
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Page 307 and 308: . Application of Delaware lawFina h
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