asset acquisitions - Jackson Walker LLP

materials, promotional materials, studies, reports, correspondence and other similardocuments and Records and, subject to Legal Requirements, copies of all personnel Recordsand other Records described in Section 2.2(g);(h) all of the intangible rights and property of Seller, including Intellectual PropertyAssets, going concern value, good-will, telephone, telecopy and e-mail addresses, websitesand listings and those items listed in Part 3.25(d), (e), (f) and (h);(i) all insurance benefits, including rights and proceeds, arising from or relating to theAssets or the Assumed Liabilities prior to the Effective Time, unless expended in accordancewith this Agreement;(j) all claims of Seller against third parties relating to the Assets, whether choate orinchoate, known or unknown, contingent or non-contingent, including all such claims listedin Part 2.1(j); and(k) all rights of Seller relating to deposits and prepaid expenses, claims for refunds andrights to offset in respect thereof which are not listed in Part 2.2(d) and which are notexcluded under Section 2.2(h).All of the foregoing property and assets are herein referred to collectively as the “Assets”.Notwithstanding the foregoing, the transfer of the Assets pursuant to this Agreement shall notinclude the assumption of any Liability in respect thereof unless the Buyer expressly assumes suchLiability pursuant to Section 2.4(a).COMMENTThe identities of the specific assets to be transferred and the liabilities to be assumed(see Section 2.4) are the heart of an asset purchase transaction. The acquisition agreementand the disclosure letter should identify, with some degree of detail, those assets that are tobe acquired by the buyer. The mechanism used for this identification will depend in partupon the amount of detail the parties desire, the nature of the assets involved, and the statusof the buyer’s due diligence at the time the acquisition agreement is finalized. Theidentification could be guided by a consideration of which assets listed on the balance sheetthe buyer intends to purchase. The asset description could also be used as part of the buyer’sdue diligence investigation or to confirm that investigation. To this end, the buyer couldgive the seller an exhaustive list of assets and leave it to the seller to tailor the list to fit theassets the seller has and considers part of the assets being sold.The Model Agreement initially describes the assets to be acquired in a general way,followed by a categorization into the groupings listed in Section 2.1. This generaldescription is further supplemented, to the extent appropriate, by reference to Parts of theDisclosure Letter to list or describe particular items within certain groupings. This methodworks well when the buyer’s due diligence is well under way at the time the acquisitionagreement is finalized and allows the parties to specify, for example, which particularcontracts buyer will acquire.Alternatively, the parties might omit any specific identification or description anddescribe the acquired assets only by categorizing them into general groupings. Although the3148166v1- 41 -