asset acquisitions - Jackson Walker LLP

(b) Except as set forth in Part 3.2(b), neither the execution and delivery of thisAgreement nor the consummation or performance of any of the Contemplated Transactionswill, directly or indirectly (with or without notice or lapse of time):(i) Breach (A) any provision of any of the Governing Documents of Seller, or(B) any resolution adopted by the board of directors or the shareholders of Seller;(ii) Breach or give any Governmental Body or other Person the right tochallenge any of the Contemplated Transactions or to exercise any remedy or obtainany relief under any Legal Requirement or any Order to which Seller or eitherShareholder, or any of the Assets, may be subject;(iii) contravene, conflict with, or result in a violation or breach of any of the termsor requirements of, or give any Governmental Body the right to revoke, withdraw,suspend, cancel, terminate, or modify, any Governmental Authorization that is heldby Seller or that otherwise relates to the Assets or to the business of Seller;(iv)Tax;cause Buyer to become subject to, or to become liable for the payment of, any(v) Breach any provision of, or give any Person the right to declare a default orexercise any remedy under, or to accelerate the maturity or performance of, orpayment under, or to cancel, terminate, or modify, any Seller Contract;(vi) result in the imposition or creation of any Encumbrance upon or with respectto any of the Assets; or(vii) result in any shareholder of the Seller having the right to exercise dissenters’appraisal rights.(c) Except as set forth in Part 3.2(c), neither Seller nor either Shareholder is required togive any notice to or obtain any Consent from any Person in connection with the executionand delivery of this Agreement or the consummation or performance of any of theContemplated Transactions.COMMENTThe Seller may seek an exception to the representations in the first sentence ofSection 3.2(a) to the extent that enforceability is limited by bankruptcy, insolvency or similarlaws affecting creditors’ rights and remedies or by equitable principles. Such an exception isalmost universally found in legal opinions regarding enforceability, and some buyers mayallow it in the representations. Other buyers will respond that the exception would beinappropriate because the risk of such limitations should fall on the seller and theshareholders.In most states, shareholder approval of an asset sale has historically been required ifthe corporation is selling all or substantially all of its assets. The Delaware courts have usedboth “qualitative” and “quantitative” tests in interpreting this phrase, as it is used in Section271 of the Delaware General Corporation Law. See Gimbel v. The Signal Companies, Inc.,3148166v1- 72 -