ASSET PURCHASE AGREEMENT
BETWEEN
__________
AND
____________________
_________ ____, ___
 
TABLE OF CONTENTS
§1. Definitions	4
§2. Basic Transaction	11
(a)  Purchase and Sale of Assets	11
(b)  Assumption of Liabilities	12
(c)  Purchase Price	12
(d)  Cash Distribution to Target	13
(e)  The Closing	13
(f)  Deliveries at the Closing	13
(g)  Allocation	13
§3. Target’s Representations and Warranties	14
(a)  Organization of Target	14
(b)  Authorization of Transaction	14
(c)  Non-contravention	15
(d)  Brokers’ Fees	15
(e)  Title to Tangible Assets	15
(f)  Subsidiaries	15
(g)  Financial Statements	16
(h)  Events Subsequent to Most Recent Fiscal Month End	16
(i)  Legal Compliance	16
(j)  Tax Matters	16
(k)  Real Property	18
(l)  Intellectual Property	18
(m)  Contracts	18
(n)  Powers of Attorney	18
(o)  Litigation	19
(p)  Employee Benefits	19
(q)  Environmental Matters	20
(r)  Certain Business Relationships with Division and Division Subsidiaries	20
(s)  Investment	20
(t)  Disclaimer of Other Representations and Warranties	20
§4. Buyer’s Representations and Warranties	21
(a)  Organization of Buyer	21
(b)  Authorization of Transaction	21
(c)  Non-contravention	22
(d)  Brokers’ Fees	22
§5. Pre-Closing Covenants	22
(a)  General	22
(b)  Notices and Consents	22
(c)  Operation of Business	22
(d)  Full Access	23
(e)  Notice of Developments	23
(f)  Exclusivity	23
(g)  Title Insurance and Surveys	24
§6. Post-Closing Covenants	24
(a)  General	24
(b)  Litigation Support	24
(c)  Transition	24
(d)  Non-Compete Covenant	25
(e)  Buyer Notes	25
(f)  Post-Acquisition Attorney-Client Issues	25
§7. Conditions to Obligation to Close	26
(a)  Conditions to Buyer’s Obligation	26
(b)  Conditions to Target’s Obligation	28
§8. Remedies for Breaches of This Agreement	29
(a)  Survival of Representations and Warranties	29
(b)  Indemnification Provisions for Buyer’s Benefit	30
(c)  Indemnification Provisions for Target’s Benefit	31
(d)  Matters Involving Third Parties	32
(e)  Determination of Adverse Consequences	32
(f)  Waiver of Certain Damages	32
(g)  Recoupment Against Buyer Notes	33
(h)  Exclusive Remedy	33
(i)  Environmental Remedies	33
§9. Termination	34
(a)  Termination of Agreement	34
(b)  Effect of Termination	35
§10. Miscellaneous	35
(a)  Press Releases and Public Announcements	35
(b)  No Third-Party Beneficiaries	35
(c)  Entire Agreement	35
(d)  Succession and Assignment	35
(e)  Counterparts	36
(f)  Headings	36
(g)  Notices	36
(h)  Governing Law	36
(i)  Amendments and Waivers	36
(j)  Severability	36
(k)  Expenses	36
(l)  Construction	37
(m)  Incorporation of Exhibits and Schedules	37
(n)  Tax Matters	37
(o)  Employee Benefits Matters	38
(p)  Bulk Transfer Laws	39
(q)  Governing Language	39
(r)  Tax Disclosure Authorization	39

Exhibit A—Form of Buyer Notes
Exhibit B—Forms of Assignments
Exhibit C—Form of Assumption
Exhibit D—Historical Financial Statements
Exhibit E—Forms of Side Agreements
Exhibit F—Form of Opinion of Target’s Counsel
Exhibit G—Form of Opinion of Buyer’s Counsel
Disclosure Schedule—Exceptions to Representations and Warranties

[EXHIBITS AND SCHEDULES HAVE BEEN OMITTED FROM THIS SAMPLE ACQUISITION AGREEMENT 2402]
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (this ‘‘Agreement’’) is entered into on [as of] __________ ___, ____, by and between __________, a __________ corporation (‘‘Buyer’’), and __________, a __________ corporation (‘‘Target’’). Buyer and Target are referred to collectively herein as the ‘‘Parties.’’
This Agreement contemplates a transaction in which Buyer will purchase substantially all of the assets (and assume substantially all of the liabilities) of ___________ Division in return for cash and Buyer Notes.
Now, therefore, in consideration of the premises and the mutual promises herein made, and in consideration of the representations, warranties, and covenants herein contained, the Parties agree as follows.
§1. Definitions.
‘‘Accredited Investor’’ has the meaning set forth in Regulation D promulgated under the Securities Act.
‘‘Acquired Assets’’ means all of the right, title, and interest that Target possesses and has the right to transfer in and to all of the assets constituting Division, including all of its (a) Owned Real Property and Leased Real Property, (b) tangible personal property (such as machinery, equipment, inventories of raw materials and supplies, manufactured and purchased parts, goods in process and finished goods, furniture, automobiles, trucks, tractors, trailers, tools, jigs, and dies), (c) intellectual property, goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against past, present, and future infringements thereof, and rights to protection of past, present, and future interests therein under the laws of all jurisdictions, (d) leases, subleases, and rights thereunder, (e) agreements, contracts, indentures, mortgages, instruments, Liens, guaranties, other similar arrangements, and rights thereunder, (f) accounts, notes, and other receivables, (g) securities (including the capital stock in Division Subsidiaries), (h) claims, deposits, prepayments, refunds, causes of action, choses in action, rights of recovery, rights of set-off, and rights of recoupment (including any such item relating to the payment of Taxes), (i) franchises, approvals, permits, licenses, orders, registrations, certificates, variances, and similar rights obtained from governments and governmental agencies, (j) books, records, ledgers, files, documents, correspondence, lists, plats, architectural plans, drawings, and specifications, creative materials, advertising and promotional materials, studies, reports, and other printed or written materials, (k) Cash up to an amount equal to Target’s good faith estimate of the aggregate liability of Division Subsidiaries for unpaid Income Taxes as of the Closing (computed in accordance with the past custom and practice of Target and its Subsidiaries in filing their Income Tax Returns), and (l) [rights in and with respect to the assets associated with its Employee Benefit Plans]; provided, however, that the Acquired Assets shall not include (i) the corporate charter, qualifications to conduct business as a foreign corporation, arrangements with registered agents relating to foreign qualifications, taxpayer and other identification numbers, seals, minute books, stock transfer books, blank stock certificates, and other documents relating to the organization, maintenance, and existence of Target as a corporation, (ii) any Cash in excess of the amount referred to in clause (k) of this definition, (iii) any of the rights of Target under this Agreement (or under any side agreement between Target on the one hand and Buyer on the other hand entered into on or after the date of this Agreement), or (iv) any right with respect to Attorney-Client Communications including Law Firm’s records relating to or affecting the Transaction, and any attorney-client privilege, expectation of client confidence, or any other right to any evidentiary privilege with respect thereto.
‘‘Adverse Consequences’’ means, subject to the limitations set forth in §8(f), all actions, suits, proceedings, hearings, investigations, charges, complaints, claims, demands, injunctions, judgments, orders, decrees, rulings, damages, dues, penalties, fines, costs, [reasonable amounts paid in settlement,] liabilities, obligations, Taxes, Liens, losses, expenses, and fees, including court costs and [reasonable] attorneys’ fees and expenses.
‘‘Affiliate’’ has the meaning set forth in Rule 12b-2 of the regulations promulgated under the Securities Exchange Act.
‘‘Affiliated Group’’ means any affiliated group within the meaning of Code §1504(a) or any similar group defined under a similar provision of state, local, or non-U.S. law.
‘‘Applicable Rate’’ means the corporate base rate of interest publicly announced from time to time by [Financial Institution] [plus/minus __________% per annum].
‘‘Assumed Liabilities’’ means all liabilities and obligations of Division (whether known or unknown, whether asserted or unasserted, whether absolute or contingent, whether accrued or unaccrued, whether liquidated or unliquidated, and whether due or to become due), including (a) all liabilities of Division for unpaid Taxes with respect to periods prior to the Closing, but not Division’s unpaid Income Taxes, (b) all liabilities of Target for transfer, sales, use, and other non-Income Taxes arising in connection with the consummation of the transactions contemplated hereby, (c) all liabilities of Target for costs and expenses (including legal fees and expenses) Target and Target Stockholders have incurred in connection with this Agreement and the transactions contemplated hereby, (d) all liabilities and obligations of Division under the agreements, contracts, leases, licenses, and other arrangements referred to in the definition of Acquired Assets, (e) [all liabilities and obligations of Division under the Employee Benefit Plans set forth on §3(p) of the Disclosure Schedule], (f) all liabilities and obligations of or relating to Division with respect to environmental, health or safety matters, including without limitation those arising under Environmental Requirements, (g) all obligations of Division to indemnify any Person by reason of the fact that such Person was a director, officer, employee, or agent of Division or was serving at the request of Division as a partner, trustee, director, officer, employee, or agent of another entity (whether such indemnification is for judgments, damages, penalties, fines, costs, amounts paid in settlement, losses, expenses, or otherwise and whether such indemnification is pursuant to any statute, charter document, bylaw, agreement, or otherwise), and (h) all other liabilities and obligations of Division set forth in the Disclosure Schedule; provided, however, that the Assumed Liabilities shall not include any liability or obligation of Target under this Agreement (or under any side agreement between Target on the one hand and Buyer on the other hand entered into on or after the date of this Agreement).
‘‘Attorney-Client Communication’’ means any communication occurring on or prior to Closing between Law Firm on the one hand and Target, its Subsidiaries, any Target Stockholder, or any of their respective Affiliates on the other hand that in any way relates to the Transaction, including any representation, warranty, or covenant of any party under this Agreement or any related agreement.
‘‘Buyer’’ has the meaning set forth in the preface above.
‘‘Buyer Notes’’ has the meaning set forth in §2(c) below.
‘‘Cash’’ means cash and cash equivalents (including marketable securities and short-term investments) calculated in accordance with GAAP applied on a basis consistent with the preparation of the Financial Statements.
‘‘Closing’’ has the meaning set forth in §2(e) below.
‘‘Closing Date’’ has the meaning set forth in §2(e) below.
‘‘Code’’ means the Internal Revenue Code of 1986, as amended.
‘‘Confidential Information’’ means any information concerning the business and affairs of Division and Division Subsidiaries that is not already generally available to the public.
“COVID-19” means SARS-CoV-2 or COVID-19, and any evolutions thereof or related or associated epidemics, pandemic, or disease outbreaks.
‘‘Disclosure Schedule’’ has the meaning set forth in §3 below.
‘‘Division’’ means Target with respect to its __________ division.
‘‘Division Subsidiary’’ means any Subsidiary of Target included within Division.
‘‘Employee Benefit Plan’’ means any ‘‘employee benefit plan’’ (as such term is defined in ERISA §3(3)) and any other material employee benefit plan, program or arrangement.
‘‘Employee Pension Benefit Plan’’ has the meaning set forth in ERISA §3(2).
‘‘Employee Welfare Benefit Plan’’ has the meaning set forth in ERISA §3(1).
‘‘Environmental Requirements’’ means all federal, state, local, and non-U.S. statutes, regulations, and ordinances concerning pollution or protection of the environment, including all those relating to the presence, use, production, generation, handling, transportation, treatment, storage, disposal, distribution, labeling, testing, processing, discharge, release, threatened release, control, or cleanup of any hazardous materials, substances, or wastes, as such requirements are enacted and in effect on the Closing Date.
‘‘ERISA’’ means the Employee Retirement Income Security Act of 1974, as amended.
‘‘ERISA Affiliate’’ means each entity that is treated as a single employer with Target for purposes of Code §414.
‘‘Financial Statements’’ has the meaning set forth in §3(g) below.
‘‘GAAP’’ means United States generally accepted accounting principles as in effect from time to time, consistently applied.
‘‘Hart-Scott-Rodino Act’’ means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.
‘‘Income Tax’’ means any federal, state, local, or non-U.S. tax based on or measured by reference to net income including any interest, penalty, or addition thereto, whether disputed or not.
‘‘Income Tax Return’’ means any return, declaration, report, claim for refund, or information return or statement relating to Income Taxes, including any schedule or attachment thereto.
‘‘Indemnified Party’’ has the meaning set forth in §8(d) below.
‘‘Indemnifying Party’’ has the meaning set forth in §8(d) below.
‘‘Knowledge’’ means actual knowledge without independent investigation.
‘‘Law Firm’’ means [insert name of each law firm to be covered by §6(f)].
‘‘Leased Real Property’’ means all leasehold or subleasehold estates and other rights to use or occupy any land, buildings, structures, improvements, fixtures, or other interest in real property that is used in Division’s or Division Subsidiaries’ business.
‘‘Leases’’ means all leases, subleases, licenses, concessions and other agreements (written or oral), including all amendments, extensions, renewals, guaranties and other agreements with respect thereto, pursuant to which Division or any Division Subsidiary holds any Leased Real Property.
‘‘Lien’’ means any mortgage, pledge, lien, encumbrance, charge, or other security interest [other than (a) mechanics’, materialmen’s, and similar liens, (b) liens for Taxes not yet due and payable [or for Taxes that the taxpayer is contesting in good faith through appropriate proceedings], (c) purchase money liens and liens securing rental payments under capital lease arrangements, and (d) other liens arising in the Ordinary Course of Business and not incurred in connection with the borrowing of money].
‘‘Material Adverse Effect’’ or ‘‘Material Adverse Change’’ means any effect or change that would be materially adverse to the business of Division and Division Subsidiaries, taken as a whole, in the long term, provided that none of the following shall be deemed to constitute, and none of the following shall be taken into account in determining whether there has been, a Material Adverse Effect or Material Adverse Change: (a) any adverse change, event, development, or effect (whether short-term or long-term) [(other than, in the case of (1) through (5) below, a change, event, development, or effect that adversely impacts Division and Division Subsidiaries disproportionately compared to their competitors)] arising from or relating to (1) general business or economic conditions [affecting the industry in which Division and Division Subsidiaries operate], including such conditions related to the business of Division and Division Subsidiaries, (2) national or international political or social conditions, including the engagement by the United States in hostilities, whether or not pursuant to the declaration of a national emergency or war, or the occurrence of any military or terrorist attack upon the United States, or any of its territories, possessions, or diplomatic or consular offices or upon any military installation, equipment or personnel of the United States, (3) financial, banking, or securities markets (including any disruption thereof and any decline in the price of any security or any market index), (4) changes in United States generally accepted accounting principles, (5) changes in laws, rules, regulations, orders, or other binding directives issued by any governmental entity, (6) the taking of any action contemplated by this Agreement and the other agreements contemplated hereby, or (7) any epidemic, pandemic, or disease outbreak (including the COVID-19 pandemic), or any law, regulation, statute, directive, pronouncement, or guideline issued by a governmental entity, the Centers for Disease Control and Prevention, the World Health Organization, or industry group providing for business closures, “sheltering-in-place” curfews, or other restrictions that relate to, or arise out of, an epidemic, pandemic, or disease outbreak (including the COVID-19 pandemic) or any change in such law, regulation, statute, directive, pronouncement, or guideline or interpretation thereof following the date of this Agreement or any material worsening of such conditions threatened or existing as of the date of this Agreement, (b) any failure to meet a forecast (whether internal or published) of revenue, earnings, cash flow, or other data for any period or any change in such a forecast, (c) any existing event, occurrence, or circumstance with respect to which Buyer has knowledge as of the date hereof, and (d) any adverse change in or effect on the business of Division and Division Subsidiaries that is cured by Target before the earlier of (1) the Closing Date and (2) the date on which this Agreement is terminated pursuant to §7 hereof.
‘‘Most Recent Financial Statements’’ has the meaning set forth in §3(g) below.
‘‘Most Recent Fiscal Month End’’ has the meaning set forth in §3(g) below.
‘‘Multiemployer Plan’’ has the meaning set forth in ERISA §3(37).
‘‘Ordinary Course of Business’’ means an action taken, or omitted to be taken, by any Person in the ordinary course of such Person’s business consistent with past custom and practice (including with respect to quantity and frequency); provided, that any action taken, or omitted to be taken, that relates to, or arises out of, any pandemic, epidemic, or disease outbreak shall be deemed to be in the Ordinary Course of Business.
‘‘Owned Real Property’’ means all land, together with all buildings, structures, improvements and fixtures located thereon, and all easements and other rights and interests appurtenant thereto, owned by Division or any Division Subsidiary and used in the business of Division and Division Subsidiaries.
‘‘Party’’ has the meaning set forth in the preface above.
‘‘PBGC’’ means the Pension Benefit Guaranty Corporation.
‘‘Permitted Encumbrances’’ means with respect to each parcel of Owned Real Property: (a) real estate taxes, assessments and other governmental levies, fees, or charges imposed with respect to such Owned Real Property that are (i) not due and payable as of the Closing Date or (ii) being contested by appropriate proceedings; (b) mechanics’ liens and similar liens for labor, materials, or supplies provided with respect to such Owned Real Property incurred in the Ordinary Course of Business for amounts that are (i) not delinquent and that would not, in the aggregate, have a Material Adverse Effect or (ii) being contested by appropriate proceedings; (c) zoning, building codes, and other land use laws regulating the use or occupancy of such Owned Real Property or the activities conducted thereon that are imposed by any governmental authority having jurisdiction over such Owned Real Property; (d) liens for any financing secured by such Owned Real Property that is an obligation of Division or any Division Subsidiary that is an Assumed Liability; and (e) easements, covenants, conditions, restrictions and other similar matters affecting title to such Owned Real Property and other encroachments and title and survey defects that do not or would not materially impair the use or occupancy of such Owned Real Property in the operation of the business of Division and Division Subsidiaries taken as a whole.
‘‘Person’’ means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization, any other business entity, or a governmental entity (or any department, agency, or political subdivision thereof).
‘‘Purchase Price’’ has the meaning set forth in §2(c) below.
‘‘Responsible Officer’’ means __________, __________, and __________.
‘‘Securities Act’’ means the Securities Act of 1933, as amended.
‘‘Securities Exchange Act’’ means the Securities Exchange Act of 1934, as amended.
‘‘Subsidiary’’ means, with respect to any Person, any corporation, limited liability company, partnership, association, or other business entity of which (i) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers, or trustees thereof is at the time owned or controlled, directly or indirectly, by that Person or 1 or more of the other Subsidiaries of that Person or a combination thereof or (ii) if a limited liability company, partnership, association, or other business entity (other than a corporation), a majority of the partnership or other similar ownership interests thereof is at the time owned or controlled, directly or indirectly, by that Person or 1 or more Subsidiaries of that Person or a combination thereof and for this purpose, a Person or Persons own a majority ownership interest in such a business entity (other than a corporation) if such Person or Persons shall be allocated a majority of such business entity’s gains or losses or shall be or control any managing director or general partner of such business entity (other than a corporation). The term ‘‘Subsidiary’’ shall include all Subsidiaries of such Subsidiary.
‘‘Surveys’’ has the meaning set forth in §7(a) below.
‘‘Target’’ has the meaning set forth in the preface above.
‘‘Target Share’’ means any share of the common stock, par value $__________ per share, of Target.
‘‘Target Stockholder’’ means any person who or that holds any Target Shares.
‘‘Tax’’ or ‘‘Taxes’’ means any federal, state, local, or non-U.S. income, gross receipts, license, payroll, employment, excise, severance, stamp, occupation, premium, windfall profits, environmental, customs duties, capital stock, franchise, profits, withholding, social security (or similar), unemployment, disability, real property, personal property, sales, use, transfer, registration, value added, alternative or add-on minimum, estimated, or other tax of any kind whatsoever, when computed on a separate or consolidated, unitary or combined basis or in any other manner, including any interest, penalty, or addition thereto, whether disputed or not.
‘‘Tax Return’’ means any return, declaration, report, claim for refund, or information return or statement relating to Taxes, including any schedule or attachment thereto, and including any amendment thereof.
‘‘Third-Party Claim’’ has the meaning set forth in §8(d) below.
‘‘Title Commitments’’ has the meaning set forth in §7(a) below.
‘‘Title Company’’ has the meaning set forth in §7(a) below.
‘‘Title Policies’’ has the meaning set forth in §7(a) below.
‘‘Transaction’’ means the negotiation, preparation, execution, and delivery of this Agreement and related agreements, and the consummation of the transactions contemplated hereby or thereby.
§2. Basic Transaction.
(a) Purchase and Sale of Assets. On and subject to the terms and conditions of this Agreement, Buyer agrees to purchase from Target, and Target agrees to sell, transfer, convey, and deliver to Buyer, all of the Acquired Assets at the Closing for the consideration specified below in this §2.
(b) Assumption of Liabilities. On and subject to the terms and conditions of this Agreement, Buyer agrees to assume and become responsible for all of the Assumed Liabilities at the Closing. Buyer will not assume or have any responsibility, however, with respect to any other obligation or liability of Target not included within the definition of Assumed Liabilities.
(c) Purchase Price. Buyer agrees to pay to Target at the Closing $__________ (the ‘‘Purchase Price’’) by delivery of (i) its promissory notes (the ‘‘Buyer Notes’’) in the form of Exhibit A attached hereto in the principal amount of $__________ and (ii) cash for the balance of the Purchase Price payable by wire transfer or delivery of other immediately available funds.
(d) Cash Distribution to Target. Immediately prior to the Closing, Target will cause Division Subsidiaries to pay Target an aggregate amount equal to the consolidated Cash of Division Subsidiaries as of the Closing. Target may cause any Division Subsidiary to make any such payment to Target in the form of a dividend or a redemption.
(e) The Closing. The closing of the transactions contemplated by this Agreement (the ‘‘Closing’’) shall take place either (i) at the offices of __________, in __________, __________, or (ii) remotely by exchange of documents and signature pages (or their electronic counterparts), in each case, commencing at 9:00 a.m. local time on the [second] business day following the satisfaction or waiver of all conditions to the obligations of the Parties to consummate the transactions contemplated hereby (other than conditions with respect to actions the respective Parties will take at the Closing itself) or such other date, place, or time as the Parties may mutually determine (the ‘‘Closing Date’’); provided, however, that the Closing Date shall be no earlier than __________ ___, ____.
(f) Deliveries at the Closing. At the Closing, (i) Target shall deliver to Buyer the various certificates, instruments, and documents referred to in §7(a) below; (ii) Buyer shall deliver to Target the various certificates, instruments, and documents referred to in §7(b) below; (iii) Target shall execute, acknowledge (if appropriate), and deliver to Buyer (A) assignments (including real property and intellectual property transfer documents) in the forms attached hereto as Exhibits B-1 through B-________ and (B) such other instruments of sale, transfer, conveyance, and assignment as Buyer and its counsel may [reasonably] request; (iv) Buyer will execute, acknowledge (if appropriate), and deliver to Target (A) an assumption in the form attached hereto as Exhibit C and (B) such other instruments of assumption as Target and its counsel may [reasonably] request; and (v) Buyer will deliver to Target the consideration specified in §2(c) above.
[(g) Allocation. Target shall prepare an allocation of the Purchase Price (and all other capitalized costs) among the Acquired Assets in accordance with Code §1060 and the Treasury regulations thereunder, which allocation shall be binding upon Buyer. Target shall deliver such allocation to Buyer within [30] days after the Closing Date. Target and Buyer and their Affiliates shall report, act and file Tax Returns (including, but not limited to Internal Revenue Service Form 8594) in all respects and for all purposes consistent with such allocation prepared by Target. Buyer shall timely and properly prepare, execute, file and deliver all such documents, forms and other information as Target may reasonably request to prepare such allocation. Neither Target nor Buyer shall take any position (whether in audits, Tax Returns or otherwise) that is inconsistent with such allocation unless required to do so by applicable law.]
§3. Target’s Representations and Warranties. Target represents and warrants to Buyer that the statements contained in this §3 are correct and complete as of the date of this Agreement and will be correct and complete as of the Closing Date (as though made then and as though the Closing Date were substituted for the date of this Agreement throughout this §3), except as set forth in the disclosure schedule accompanying this Agreement and initialed by the Parties (the ‘‘Disclosure Schedule’’). The Disclosure Schedule will be arranged in paragraphs corresponding to the lettered and numbered paragraphs contained in this §3.
(a) Organization of Target. Target is a corporation duly organized, validly existing, and in good standing under the laws of the jurisdiction of its incorporation.
(b) Authorization of Transaction. Target has full power and authority (including full corporate or other entity power and authority) to execute and deliver this Agreement and to perform its obligations hereunder. Without limiting the generality of the foregoing, the board of directors of Target and Target Stockholders have duly authorized the execution, delivery, and performance of this Agreement by Target. This Agreement constitutes the valid and legally binding obligation of Target, enforceable in accordance with its terms and conditions.
(c) Non-contravention. [To the Knowledge of any Responsible Officer,] neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated hereby (including the assignments and assumptions referred to in §2 above), will [(i)] violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any government, governmental agency, or court to which Target or any Division Subsidiary is subject or any provision of the charter or bylaws of Target or any Division Subsidiary [or (ii) conflict with, result in a breach of, constitute a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or require any notice under any agreement, contract, lease, license, instrument, or other arrangement to which Target or any Division Subsidiary is a party or by which it is bound or to which any of its assets is subject (or result in the imposition of any Lien upon any of its assets), except where the violation, conflict, breach, default, acceleration, termination, modification, cancellation, failure to give notice, or Lien would not have a Material Adverse Effect]. [To the Knowledge of any Responsible Officer,] neither Target nor any Division Subsidiary needs to give any notice to, make any filing with, or obtain any authorization, consent, or approval of any government or governmental agency in order for the Parties to consummate the transactions contemplated by this Agreement (including the assignments and assumptions referred to in §2 above)[, except where the failure to give notice, to file, or to obtain any authorization, consent, or approval would not have a Material Adverse Effect].
(d) Brokers’ Fees. Target has no liability or obligation to pay any fees or commissions to any broker, finder, or agent with respect to the transactions contemplated by this Agreement for which Buyer could become liable or obligated. No Division Subsidiary has any liability or obligation to pay any fees or commissions to any broker, finder, or agent with respect to the transactions contemplated by this Agreement.
(e) Title to Tangible Assets. Division and Division Subsidiaries have good title to, or a valid leasehold interest in, the material tangible assets they use regularly in the conduct of their business.
(f) Subsidiaries. §3(f) of the Disclosure Schedule sets forth for each Division Subsidiary (i) its name and jurisdiction of incorporation, (ii) the number of authorized shares for each class of its capital stock, (iii) the number of issued and outstanding shares of each class of its capital stock, the names of the holders thereof, and the number of shares held by each such holder, (iv) the number of shares of its capital stock held in treasury, and (v) its directors and officers. Each Division Subsidiary is a corporation duly organized, validly existing, and in good standing under the laws of the jurisdiction of its incorporation. Each Division Subsidiary is a corporation duly organized, validly existing, and in good standing under the laws of the jurisdiction of its incorporation. Each Division Subsidiary is duly authorized to conduct business and is in good standing under the laws of each jurisdiction where such qualification is required, except where the lack of such qualification would not have a Material Adverse Effect. Each Division Subsidiary has full corporate or other entity power and authority to carry on the business in which it is engaged and to own and use the properties owned and used by it. All of the issued and outstanding shares of capital stock of each Division Subsidiary have been duly authorized and are validly issued, fully paid, and non-assessable. Either Target or 1 of its Subsidiaries holds of record and owns beneficially all of the outstanding shares of each Division Subsidiary. Except for Division Subsidiaries set forth in §3(f) of the Disclosure Schedule, neither Target nor any Division Subsidiary owns or has any right to acquire, directly or indirectly, any outstanding capital stock of, or other equity interests in, any Person.
(g) Financial Statements. Attached hereto as Exhibit D are the following financial statements (collectively the ‘‘Financial Statements’’): (i) audited consolidated balance sheets and statements of income, changes in control account, and cash flow as of and for the fiscal years ended __________ ___, ____, __________ ___, ____, __________ ___, ____, __________ ___, ____, and __________ ___, ____ for Division and Division Subsidiaries; and (ii) unaudited consolidated balance sheets and statements of income, changes in stockholders’ equity, and cash flow (the ‘‘Most Recent Financial Statements’’) as of and for the _____ months ended __________ ___, ____ (the ‘‘Most Recent Fiscal Month End’’) for Division and Division Subsidiaries. The Financial Statements (including the notes thereto) have been prepared in accordance with GAAP throughout the periods covered thereby and present fairly the financial condition of Division and Division Subsidiaries as of such dates and the results of operations of Division and Division Subsidiaries for such periods; provided, however, that the Most Recent Financial Statements are subject to normal year-end adjustments and lack footnotes and other presentation items.
(h) Events Subsequent to Most Recent Fiscal Month End. Since the Most Recent Fiscal Month End, there has not been any Material Adverse Change. Without limiting the generality of the foregoing, since that date neither Target nor any Subsidiary has engaged in any practice, taken any action, or entered into any transaction outside the Ordinary Course of Business the primary purpose or effect of which has been to generate or preserve Cash.
(i) Legal Compliance. To the Knowledge of any Responsible Officer, each of Division and Division Subsidiaries has complied with all applicable laws (including rules, regulations, codes, plans, injunctions, judgments, orders, decrees, rulings, and charges thereunder) of federal, state, local, and non-U.S. governments (and all agencies thereof), except where the failure to comply would not have a Material Adverse Effect.
(j) Tax Matters.
(i) Each of Division and Division Subsidiaries has filed all Income Tax Returns that it was required to file, and has paid all Income Taxes shown thereon as owing, except where the failure to file Income Tax Returns or to pay Income Taxes would not have a Material Adverse Effect.
(ii) §3(j)(ii) of the Disclosure Schedule lists all Income Tax Returns filed with respect to Division or any Division Subsidiary for taxable periods ended on or after __________ ___, ____, indicates those Income Tax Returns that have been audited, and indicates those Income Tax Returns that currently are the subject of audit. Target has delivered to Buyer correct and complete copies of all federal Income Tax Returns, examination reports, and statements of deficiencies assessed against or agreed to by Division or any Division Subsidiary since __________ ___, ____.
(iii) Except as set forth in §3(j)(iii) of the Disclosure Schedule, no action, suit, proceeding or audit is pending against or with respect to Division or any Division Subsidiary regarding Taxes.
(iv) Neither Division nor any Division Subsidiary has waived any statute of limitations in respect of Income Taxes or agreed to any extension of time with respect to an Income Tax assessment or deficiency.
(v) Neither Division nor any Division Subsidiary is a party to any Income Tax allocation or sharing agreement.
[(vi) To the Knowledge of any Responsible Officer, no Division Subsidiary has been a member of an Affiliated Group filing a consolidated federal Income Tax Return (other than a group the common parent of which was Target).]
(vii) Neither Target nor any of its Subsidiaries is or has been a party to any ‘‘listed transaction,’’ as defined in Code §6707A(c)(2) and Reg. §1.6011-4(b)(2).
(k) Real Property.
(i) §3(k)(i) of the Disclosure Schedule sets forth the address and description of each parcel of Owned Real Property. With respect to each parcel of Owned Real Property, and except for matters that would not have a Material Adverse Effect:
(A) Division and Division Subsidiaries has good and marketable fee simple title, free and clear of all Liens, except Permitted Encumbrances;
(B) except as set forth in §3(k)(i)(B) of the Disclosure Schedule, neither Division nor any Division Subsidiary has leased or otherwise granted to any Person the right to use or occupy such Owned Real Property or any portion thereof; and
(C) there are no outstanding options, rights of first offer or rights of first refusal to purchase such Owned Real Property or any portion thereof or interest therein.
(ii) §3(k)(ii) of the Disclosure Schedule sets forth the address of each parcel of Leased Real Property, and a true and complete list of all Leases for each such parcel of Leased Real Property. Target has delivered to Buyer a true and complete copy of each Lease document.
(l) Intellectual Property. §3(l) of the Disclosure Schedule identifies each unexpired patent or registration that has been issued to Division or any Division Subsidiary with respect to any of its intellectual property, identifies each pending patent application or application for registration that Division or any Division Subsidiary has made with respect to any of its intellectual property, [and identifies each existing and material license, sublicense, agreement, covenant not to sue, or other permission that Division or any Division Subsidiary has granted to any third party with respect to any of its intellectual property].
(m) Contracts. §3(m) of the Disclosure Schedule lists all written contracts and other written agreements to which Division or any Division Subsidiary is a party and the performance of which will involve consideration in excess of $__________. Target has delivered to Buyer a correct and complete copy of each contract or other agreement (as amended to date) listed in §3(m) of the Disclosure Schedule.
(n) Powers of Attorney. To the Knowledge of any Responsible Officer, there are no outstanding powers of attorney executed on behalf of Division or any Division Subsidiary.
(o) Litigation. §3(o) of the Disclosure Schedule sets forth each instance in which Division or any Division Subsidiary (i) is subject to any outstanding injunction, judgment, order, decree, ruling, or charge or (ii) is a party to any action, suit, proceeding, hearing, or investigation of, in, or before any court or quasi-judicial or administrative agency of any federal, state, local, or non-U.S. jurisdiction, except where the injunction, judgment, order, decree, ruling, action, suit, proceeding, hearing, or investigation would not have a Material Adverse Effect.
(p) Employee Benefits.
(i) §3(p) of the Disclosure Schedule lists each Employee Benefit Plan that Division or any Division Subsidiary (or any other Target Subsidiary) maintains or contributes to on behalf of Division employees, or with respect to which Division or any Division Subsidiary has any Liability.
(A) To the Knowledge of any Responsible Officer, each such Employee Benefit Plan (and each related trust, insurance contract, or fund) has been maintained, funded and administered in accordance with the terms of such Employee Benefit Plan and complies in form and in operation in all respects with the applicable requirements of ERISA and the Code, except where the failure to comply would not have a Material Adverse Effect.
(B) All contributions (including all employer contributions and employee salary reduction contributions) that are due have been made to each such Employee Benefit Plan that is an Employee Pension Benefit Plan. All premiums or other payments that are due have been paid with respect to each such Employee Benefit Plan that is an Employee Welfare Benefit Plan.
(C) Each such Employee Benefit Plan that is intended to meet the requirements of a ‘‘qualified plan’’ under Code §401(a) has received a determination letter from the Internal Revenue Service to the effect that it meets the requirements of Code §401(a).
Alternative 1—add the following paragraph if there are No Defined Benefit Plans:
[(ii) Neither Target nor any Subsidiary maintains, sponsors or contributes to any Employee Pension Benefit Plan that is a ‘‘defined benefit plan’’ (as defined in ERISA §3(35)).]
Alternative 2—add the following paragraphs if there are Defined Benefit Plans:
[(ii) With respect to each Employee Benefit Plan that Target, any of its Subsidiaries, and any ERISA Affiliate maintains, or has maintained during the prior 6 years or to which any of them contributes, or has been required to contribute during the prior 6 years:
(A) No action, suit, proceeding, hearing, or investigation with respect to the administration or the investment of the assets of any such Employee Benefit Plan (other than routine claims for benefits) is pending, except where the action, suit, proceeding, hearing, or investigation would not have a Material Adverse Effect.
(B) As of the last day of the most recent prior plan year, the market value of assets under each such Employee Benefit Plan that is an Employee Pension Benefit Plan (other than any Multiemployer Plan) equaled or exceeded the present value of liabilities thereunder (determined in accordance with then current funding assumptions).
(C) Neither Division nor any Division Subsidiary has incurred any liability to the PBGC (other than PBGC premium payments) or otherwise under Title IV of ERISA (including any withdrawal liability) with respect to any such Employee Benefit Plan that is an Employee Pension Benefit Plan.]
(q) Environmental Matters.
(i) To the Knowledge of any Responsible Officer, Division and Division Subsidiaries are in compliance with Environmental Requirements, except for such non-compliance as would not have a Material Adverse Effect.
(ii) To the Knowledge of any Responsible Officer, Division and Division Subsidiaries have not received any written notice regarding any actual or alleged material violation of Environmental Requirements relating to Division or Division Subsidiaries or their facilities arising under Environmental Requirements, the subject of which would have a Material Adverse Effect.
(iii) This §3(q) contains the sole and exclusive representations and warranties of Target with respect to any environmental matters, including without limitation any arising under any Environmental Requirements.
(r) Certain Business Relationships with Division and Division Subsidiaries. Neither Target Stockholders nor any of their Affiliates have been involved in any material business arrangement or relationship with Division or any Division Subsidiary within the past 12 months, and neither Target Stockholders nor any of their Affiliates own any material asset, tangible or intangible, that is used in the business of Division or any Division Subsidiary.
(s) Investment. Target (i) understands that the Buyer Notes have not been, and will not be, registered under the Securities Act, or under any state securities laws, and are being offered and sold in reliance upon federal and state exemptions for transactions not involving any public offering, (ii) is acquiring the Buyer Notes solely for its own account for investment purposes, and not with a view to the distribution thereof (except to Target Stockholders), (iii) is a sophisticated investor with knowledge and experience in business and financial matters, (iv) has received certain information concerning Buyer and has had the opportunity to obtain additional information as desired in order to evaluate the merits and the risks inherent in holding the Buyer Notes, (v) is able to bear the economic risk and lack of liquidity inherent in holding the Buyer Notes, and (vi) is an Accredited Investor for the reasons set forth in §3(s) of the Disclosure Schedule.
(t) Disclaimer of Other Representations and Warranties. Buyer, on its own behalf and on behalf of its Affiliates, (i) acknowledges, represents, warrants, and agrees that (x) Target makes no representation or warranty, express or implied, in respect of any of its assets (including, without limitation, the Acquired Assets), liabilities, or operations and (y) Buyer has not relied upon the accuracy or completeness of any express or implied representation, warranty, statement, or information of any nature made or provided by any Person on behalf of Target, including without limitation in any confidential information statement, management presentation, or document made available in a dataroom, in each case other than the representations and warranties expressly set forth in this §3, and (ii) waives all rights Buyer or any of its Affiliates may have against any Seller or Target with respect to any omission or concealment of, or any misstatement with respect to, any other potentially material information by Target, any Division Subsidiary, or any of their respective officers, directors, employees, agents, or representatives. Without limiting the generality of the foregoing, Target makes no representation or warranty regarding any assets other than the Acquired Assets or any liabilities other than the Assumed Liabilities, and none shall be implied at law or in equity.
§4. Buyer’s Representations and Warranties. Buyer represents and warrants to Target that the statements contained in this §4 are correct and complete as of the date of this Agreement and will be correct and complete as of the Closing Date (as though made then and as though the Closing Date were substituted for the date of this Agreement throughout this §4), except as set forth in the Disclosure Schedule. The Disclosure Schedule will be arranged in paragraphs corresponding to the lettered and numbered paragraphs contained in this §4.
(a) Organization of Buyer. Buyer is a corporation (or other entity) duly organized, validly existing, and in good standing under the laws of the jurisdiction of its incorporation (or other formation).
(b) Authorization of Transaction. Buyer has full power and authority (including full corporate or other entity power and authority) to execute and deliver this Agreement and to perform its obligations hereunder. This Agreement constitutes the valid and legally binding obligation of Buyer, enforceable in accordance with its terms and conditions. The execution, delivery and performance of this Agreement and all other agreements contemplated hereby have been duly authorized by Buyer.
(c) Non-contravention. Neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated hereby (including the assignments and assumptions referred to in §2 above), will (i) violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any government, governmental agency, or court to which Buyer is subject or any provision of its charter, bylaws, or other governing documents or (ii) conflict with, result in a breach of, constitute a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or require any notice under any agreement, contract, lease, license, instrument, or other arrangement to which Buyer is a party or by which it is bound or to which any of its assets are subject. Buyer does not need to give any notice to, make any filing with, or obtain any authorization, consent, or approval of any government or governmental agency in order for the Parties to consummate the transactions contemplated by this Agreement (including the assignments and assumptions referred to in §2 above).
(d) Brokers’ Fees. Buyer has no liability or obligation to pay any fees or commissions to any broker, finder, or agent with respect to the transactions contemplated by this Agreement.
§5. Pre-Closing Covenants. The Parties agree as follows with respect to the period between the execution of this Agreement and the Closing:
(a) General. Each of the Parties will use its reasonable best efforts to take all actions and to do all things necessary[, proper, or advisable] in order to consummate and make effective the transactions contemplated by this Agreement (including satisfaction, but not waiver, of the Closing conditions set forth in §7 below).
(b) Notices and Consents. [Target will give (and shall cause each of Division Subsidiaries to give) any notices to third parties, and Target will use its reasonable best efforts (and shall cause each Division Subsidiary to use its reasonable best efforts) to obtain any third-party consents referred to in §3(c) above and the items set forth in §5(b) of the Disclosure Schedule.] Each of the Parties will (and Target shall cause each of Division Subsidiaries to) give any notices to, make any filings with, and use its reasonable best efforts to obtain any authorizations, consents, and approvals of governments and governmental agencies in connection with the matters referred to in §3(c) and §4(c) above. Without limiting the generality of the foregoing, each of the Parties will file (and Target shall cause each of Division Subsidiaries to file) any Notification and Report Forms and related material that it may be required to file with the Federal Trade Commission and the Antitrust Division of the United States Department of Justice under the Hart-Scott-Rodino Act, will use its reasonable best efforts to obtain (and Target shall cause each of Division Subsidiaries to use its reasonable best efforts to obtain) a waiver from the applicable waiting period, and will make (and Target shall cause each of Division Subsidiaries to make) any further filings pursuant thereto that may be necessary[, proper, or advisable] in connection therewith.
(c) Operation of Business. [Target will not cause or permit Division or any Division Subsidiary to engage in any practice, take any action, or enter into any transaction outside the Ordinary Course of Business. Without limiting the generality of the foregoing,] Target will not cause or permit Division or any Division Subsidiary to engage in any practice, take any action, or enter into any transaction outside the Ordinary Course of Business the primary purpose or effect of which will be to generate or preserve Cash.
[(d) Full Access. Target will permit (and will cause each of Division and Division Subsidiaries to permit) in each case solely to the extent feasible under applicable law, representatives of Buyer to have full access at all reasonable times, and in a manner so as not to interfere with the normal business operations of Division and Division Subsidiaries, to all premises, properties, personnel, books, records (including tax records), contracts, and documents of or pertaining to each of Division and Division Subsidiaries; provided, that such access may be limited (or at Sellers’ discretion [after consultation with counsel]) to the extent Target and/or any of its Subsidiaries reasonably determines, in light of then-prevailing conditions, that such access would jeopardize the health and safety of any Target or Subsidiary employee; provided, further, that Buyer shall comply with all applicable safety rules and reasonable controls during such access. Buyer will treat and hold as such any Confidential Information it receives from any of Target Stockholders, Target, and its Subsidiaries in the course of the reviews contemplated by this §5(d), will not use any of the Confidential Information except in connection with this Agreement, and, if this Agreement is terminated for any reason whatsoever, will return to Target and Division Subsidiaries all tangible embodiments (and all copies) of the Confidential Information that are in its possession.]
(e) Notice of Developments.
(i) Target may elect at any time to notify Buyer of any development causing a breach of any of its representations and warranties in §3(g)–(p) above. Unless Buyer has the right to terminate this Agreement pursuant to §9(a)(ii) below by reason of the development and exercises that right within the period of [10 business days] referred to in §9(a)(ii) below, the written notice pursuant to this §5(e)(i) will be deemed to have amended the Disclosure Schedule, to have qualified the representations and warranties contained in §3 above, and to have cured any misrepresentation or breach of warranty that otherwise might have existed hereunder by reason of the development.
(ii) Each Party will give prompt written notice to the other Party of any material adverse development causing a breach of any of its own representations and warranties in §3(a)–(f) and §4 above. No disclosure by any Party pursuant to this §5(e)(ii), however, shall be deemed to amend or supplement the Disclosure Schedule or to prevent or cure any misrepresentation or breach of warranty.
(f) Exclusivity. Target will not (and will not cause or permit Division or any Division Subsidiary to) solicit, initiate, or encourage the submission of any proposal or offer from any Person relating to the acquisition of all or substantially all of the capital stock or assets of Division or any Division Subsidiary (including any acquisition structured as a merger, consolidation, or share exchange); provided, however, that Target, its Subsidiaries, and their directors and officers will remain free to participate in any discussions or negotiations regarding, furnish any information with respect to, assist or participate in, or facilitate in any other manner any effort or attempt by any Person to do or seek any of the foregoing to the extent their fiduciary duties may require.
(g) Title Insurance and Surveys. Target shall use its commercially reasonable efforts to provide Buyer the Title Commitments, Title Policies and Surveys in form and substance as set out in §7 of this Agreement.
§6. Post-Closing Covenants. The Parties agree as follows with respect to the period following the Closing:
(a) General. In case at any time after the Closing any further actions are necessary [or desirable] to carry out the purposes of this Agreement, each of the Parties will take such further actions (including the execution and delivery of such further instruments and documents) as the other Party [reasonably] may request, all at the sole cost and expense of the requesting Party (unless the requesting Party is entitled to indemnification therefor under §8 below).
(b) Litigation Support. In the event and for so long as any Party actively is contesting or defending against any action, suit, proceeding, hearing, investigation, charge, complaint, claim, or demand in connection with (i) any transaction contemplated under this Agreement or (ii) any fact, situation, circumstance, status, condition, activity, practice, plan, occurrence, event, incident, action, failure to act, or transaction on or prior to the Closing Date involving Division or any Division Subsidiary, the other Party will cooperate with the contesting or defending Party and its counsel in the contest or defense, make available its personnel, and provide such testimony and access to its books and records as shall be necessary in connection with the contest or defense, all at the sole cost and expense of the contesting or defending Party (unless the contesting or defending Party is entitled to indemnification therefor under §8 below).
[(c) Transition. Target will not take any action that is designed or intended to have the effect of discouraging any lessor, licensor, customer, supplier, or other business associate of Division or any Division Subsidiary from maintaining the same business relationships with Buyer and Division Subsidiaries after the Closing as it maintained with Division and Division Subsidiaries prior to the Closing.]
[(d) Non-Compete Covenant. For a period of 1 year from and after the Closing Date, Target will not engage directly or indirectly in any business that Division or any Division Subsidiary conducts as of the Closing Date in any geographic area in which Division or any Division Subsidiary conducts that business as of the Closing Date; provided, however, that no owner of less than 5% of the outstanding stock of any publicly traded corporation shall be deemed to engage solely by reason thereof in its business. If the final judgment of a court of competent jurisdiction declares that any term or provision of this §6(d) is invalid or unenforceable, the Parties agree that the court making the determination of invalidity or unenforceability shall have the power to reduce the scope, duration, or area of the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified after the expiration of the time within which the judgment may be appealed.]
(e) Buyer Notes. Each Buyer Note will be imprinted with a legend substantially in the following form:
This Note was originally issued on __________ ___, ____, and has not been registered under the Securities Act of 1933, as amended.
(f)	Post-Acquisition Attorney-Client Issues.
(i) Target’s Post-Acquisition Use of Law Firm.  Each party to this Agreement acknowledges that (a) 1 or more of Target, its Subsidiaries, and Target Stockholders have retained Law Firm to act as their counsel in connection with the Transaction [as well as other past and ongoing matters], (b) Law Firm has not acted as counsel for any other Person in connection with the Transaction, and (c) no Person other than Target, its Subsidiaries, and Target Stockholders has the status of a Law Firm client for conflict of interest or any other purpose as a result thereof. Buyer (1) waives and will not assert, and will cause each of its Subsidiaries (including, after Closing, any Subsidiary included in the Acquired Assets) to waive and not assert, any conflict of interest relating to Law Firm’s representation after the Closing of Target, any Target Stockholder, or Target Stockholder’s Affiliate in any matter involving the Transaction (including any litigation, arbitration, mediation, or other proceeding), and (2) consents to, and will cause each of its Subsidiaries (including, after Closing, any Subsidiary included in the Acquired Assets) to consent to, any such representation, even though in each case (x) the interests of Target, such Target Stockholder and/or Target Stockholder’s Affiliate may be directly adverse to Buyer or any of its Subsidiaries, (y) Law Firm may have represented Target or its Subsidiaries in a substantially related matter, or (z) Law Firm may be handling other ongoing matters for Buyer or any of its Subsidiaries.
(ii) Buyer’s Non-Access to Target’s Legal Records re Acquisition Transaction. Buyer agrees that, after the Closing, neither Buyer nor any of its Subsidiaries (including, after Closing, any Subsidiary included in the Acquired Assets) will have any right to access or control any of Law Firm’s records relating to or affecting the Transaction, which will be the property of (and be controlled by) Target. In addition, Buyer agrees that it would be impractical to remove all Attorney-Client Communications from the records (including e-mails and other electronic files) of Target and its Subsidiaries, even though such Attorney-Client Communications are not included in the Acquired Assets. Accordingly, Buyer will not, and will cause each of its Subsidiaries (including, after Closing, any Subsidiary included in the Acquired Assets) not to, use any Attorney-Client Communication remaining in the records of Target or any of its Subsidiaries after Closing in a manner that may be adverse to Target, any Target Stockholder, or any Target Stockholder’s Affiliate.
(iii) Target’s Retention of Attorney-Client Privilege with Respect to Sell-Side Acquisition Legal Representation. Buyer agrees, on its own behalf and on behalf of its Subsidiaries (including, after Closing, any Subsidiary included in the Acquired Assets), that from and after Closing (a) the attorney-client privilege, all other evidentiary privileges, and the expectation of client confidence as to all Attorney-Client Communications belong to Target and will not pass to or be claimed by Buyer or its Subsidiaries, and (b) Target will have the exclusive right to control, assert, or waive the attorney-client privilege, any other evidentiary privilege, and the expectation of client confidence with respect to such Attorney-Client Communications. Accordingly, Buyer will not, and will cause each of its Subsidiaries (including, after Closing, any Subsidiary included in the Acquired Assets) not to, (x) assert any attorney-client privilege, other evidentiary privilege, or expectation of client confidence with respect to any Attorney-Client Communication; or (y) take any action which could cause any Attorney-Client Communication to cease being a confidential communication or to otherwise lose protection under the attorney-client privilege or any other evidentiary privilege. Furthermore, Buyer agrees that it will, and will cause each of its Subsidiaries (including, after Closing, any Subsidiary included in the Acquired Assets) to, promptly deliver to Law Firm (or such other Person as Target may designate) all Attorney-Client Communications it may discover in its or any Subsidiary’s records without retaining any copy of such communications for itself. Buyer also agrees, on its own behalf and on behalf of each of its Subsidiaries (including, after Closing, any Subsidiary included in the Acquired Assets), that in the event of a dispute between Target, any Target Stockholder, or any Target Stockholder’s Affiliate on the one hand and any of Target’s Subsidiaries included in the Acquired Assets on the other arising out of or relating to any matter in which Law Firm jointly represented both parties, neither the attorney-client privilege, the expectation of client confidence, nor any right to any other evidentiary privilege will protect from disclosure to Target, such Target Stockholder, or Target Stockholder’s Affiliate any information or documents developed or shared during the course of Law Firm’s joint representation.
§7. Conditions to Obligation to Close.
(a) Conditions to Buyer’s Obligation. The obligation of Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in §3 above shall be true and correct in all material respects at and as of the Closing Date, except to the extent that such representations and warranties are qualified by the term ‘‘material,’’ or contain terms such as ‘‘Material Adverse Effect’’ or ‘‘Material Adverse Change,’’ in which case such representations and warranties (as so written, including the term ‘‘material’’ or ‘‘Material’’) shall be true and correct in all respects at and as of the Closing Date;
(ii) Target shall have performed and complied with all of its covenants hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by the term ‘‘material,’’ or contain terms such as ‘‘Material Adverse Effect’’ or ‘‘Material Adverse Change,’’ in which case Target shall have performed and complied with all of such covenants (as so written, including the term ‘‘material’’ or ‘‘Material’’) in all respects through the Closing;
(iii) there shall not be any injunction, judgment, order, decree, ruling, or charge in effect preventing consummation of any of the transactions contemplated by this Agreement;
(iv) Target shall have delivered to Buyer a certificate to the effect that each of the conditions specified above in §7(a)(i)–(iii) is satisfied in all respects;
(v) [all applicable waiting periods (and any extensions thereof) under the Hart-Scott-Rodino Act shall have expired or otherwise been terminated and Target, Division Subsidiaries, and Buyer shall have received all [other] authorizations, consents, and approvals of governments and governmental agencies referred to in §3(c) and §4(c) above];
(vi) the relevant parties shall have entered into side agreements in form and substance as set forth in Exhibits E-1 through E-_________ attached hereto and the same shall be in full force and effect;
(vii) Buyer shall have received from counsel to Target an opinion in form and substance as set forth in Exhibit F attached hereto, addressed to Buyer and on which Buyer’s lenders shall be entitled to rely, and dated as of the Closing Date;
(viii) all actions to be taken by Target in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby will be [reasonably] satisfactory in form and substance to Buyer;
(ix) Target shall have obtained and delivered to Buyer a commitment for a ALTA Owner’s Title Insurance Policy 2006 Form or other form acceptable to Buyer for each parcel of Owned Real Property (other than Owned Real Property located outside the United States), issued by _________ (the ‘‘Title Company’’), together with a copy of all documents referenced therein that are obtained by the Title Company (the ‘‘Title Commitments’’);
(x) at Closing, Target shall have caused the Title Company to issue title insurance policies (which may be in the form of a mark-up of a pro forma of the Title Commitments) in accordance with the Title Commitments, insuring Buyer’s fee simple title to each parcel of Owned Real Property as of the Closing Date, subject only to Permitted Encumbrances, in such amount as Buyer and Target reasonably determine to be the value of the Real Property insured thereunder (the ‘‘Title Policies’’) (provided that Buyer shall pay all fees, costs and expenses with respect to the Title Commitments and Title Policies); and
(xi) Target shall have obtained and delivered to Buyer a survey for each parcel of Owned Real Property, dated no earlier than the date of this Agreement, prepared by a surveyor licensed in the jurisdiction where the property is located, conforming to 2011 ALTA/ACSM Minimum Detail Requirements for Land Title Surveys and certified to Buyer, Buyer’s lender and the Title Company (the ‘‘Surveys’’) (provided that Buyer shall pay all fees, costs and expenses with respect to the Surveys).
Buyer may waive any condition specified in this §7(a) if it executes a writing so stating at or prior to the Closing.
(b) Conditions to Target’s Obligation. The obligation of Target to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in §4 above shall be true and correct in all material respects at and as of the Closing Date, except to the extent that such representations and warranties are qualified by the term ‘‘material,’’ or contain terms such as ‘‘Material Adverse Effect’’ or ‘‘Material Adverse Change,’’ in which case such representations and warranties (as so written, including the term ‘‘material’’ or ‘‘Material’’) shall be true and correct in all respects at and as of the Closing Date;
(ii) Buyer shall have performed and complied with all of its covenants hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by terms such as ‘‘material’’ and ‘‘Material Adverse Effect,’’ in which case Buyer shall have performed and complied with all of such covenants in all respects through the Closing;
(iii) there shall not be any injunction, judgment, order, decree, ruling, or charge in effect preventing consummation of any of the transactions contemplated by this Agreement;
(iv) Buyer shall have delivered to Target a certificate to the effect that each of the conditions specified above in §7(b)(i)–(iii) is satisfied in all respects;
(v) [all applicable waiting periods (and any extensions thereof) under the Hart-Scott-Rodino Act shall have expired or otherwise been terminated and] Target, Division Subsidiaries, and Buyer shall have received all [other] authorizations, consents, and approvals of governments and governmental agencies referred to in §3(c) and §4(c) above;
(vi) the relevant parties shall have entered into side agreements in form and substance as set forth in Exhibits E-1 through E-_________ attached hereto and the same shall be in full force and effect;
(vii) Target shall have received from counsel to Buyer an opinion in form and substance as set forth in Exhibit G attached hereto, addressed to Target, and dated as of the Closing Date; and
(viii) all actions to be taken by Buyer in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby will be [reasonably] satisfactory in form and substance to Target.
Target may waive any condition specified in this §7(b) if it executes a writing so stating at or prior to the Closing.
§8. Remedies for Breaches of This Agreement.
(a) Survival of Representations and Warranties.
Alternative 1—add the following paragraph if the Parties are seeking Minimal Indemnification:
None of the representations and warranties of Target contained in §3(g)–(r) of this Agreement shall survive the Closing. All of the other representations and warranties of Buyer and Target contained in this Agreement (including the representations and warranties of Target contained in §3(a)–(f) hereof) shall survive the Closing (unless the damaged Party knew or had reason to know of any misrepresentation or breach of warranty or covenant at the time of Closing) and continue in full force and effect for the maximum period for bringing a breach of contract claim permitted under the statute of limitations of the jurisdiction specified in §10(h).
Alternative 2—add the following paragraph if the Parties are seeking Limited Indemnification:
[The Parties, intending to shorten the applicable statute of limitations period, agree that all of the representations and warranties of Target contained in §3(g)–(r) of this Agreement shall survive the Closing (unless Buyer knew or had reason to know of any misrepresentation or breach of warranty at the time of Closing) and shall expire on the [first] anniversary of the Closing. All of the other representations and warranties of Buyer and Target contained in this Agreement (including the representations and warranties of Target contained in §3(a)–(f) hereof) shall survive the Closing (unless the damaged Party knew or had reason to know of any misrepresentation or breach of warranty at the time of Closing) and continue in full force and for the maximum period for bringing a breach of contract claim permitted under the statute of limitations of the jurisdiction specified in §10(h).]
(b) Indemnification Provisions for Buyer’s Benefit. 
(i) In the event Target breaches any of its representations, warranties, and covenants contained in this Agreement, and, provided that Buyer makes a written claim for indemnification against Target pursuant to §10(g) below before expiration of the applicable survival period set forth in §8(a) above, then such survival period shall not expire with respect to such claim and Target shall indemnify Buyer from and against the entirety of any Adverse Consequences Buyer shall suffer (but excluding any Adverse Consequences Buyer shall suffer after the end of any applicable survival period) caused [proximately] by the breach[, and any applicable statute of limitations period on filing a lawsuit with respect to such claim shall not expire until 1 year after the later of (1) the date of Buyer’s written claim for indemnification and (2) the expiration of the applicable survival period set forth in §8(a) above]; provided, however, that Target shall not have any obligation to indemnify Buyer from and against any Adverse Consequences caused by the breach of any representation or warranty of Target contained in §3(g)–(p) above.
Alternative 2—add the following language if the Parties are seeking Limited Indemnification: [(A) until Buyer has suffered Adverse Consequences by reason of all such breaches in excess of a $__________ aggregate deductible (after which point Target will be obligated only to indemnify Buyer from and against further such Adverse Consequences) or thereafter (B) to the extent the Adverse Consequences Buyer has suffered by reason of all such breaches exceeds a $___________ aggregate ceiling (after which point Target will have no obligation to indemnify Buyer from and against further such Adverse Consequences)].
(ii) Target agrees to indemnify Buyer from and against the entirety of any Adverse Consequences the Buyer shall suffer caused [proximately] by any liability of Target that is not an Assumed Liability (including any liability of Target that becomes a liability of Buyer under any bulk transfer law of any jurisdiction, under any common law doctrine of de facto merger or successor liability, or otherwise by operation of law).
(c) Indemnification Provisions for Target’s Benefit.
(i) In the event Buyer breaches any of its representations, warranties, and covenants contained in this Agreement, and, provided that Target makes a written claim for indemnification against Buyer pursuant to §10(g) below within the survival period (if there is an applicable survival period pursuant to §8(a) above), then Buyer shall indemnify Target from and against the entirety of any Adverse Consequences suffered (including any Adverse Consequences suffered after the end of any applicable survival period) caused [proximately] by the breach.
(ii) Buyer shall indemnify Target from and against the entirety of any Adverse Consequences suffered that are caused [proximately] by any liability of Target that is an Assumed Liability.
(d) Matters Involving Third Parties.
(i) If any third party notifies any Party (the ‘‘Indemnified Party’’) with respect to any matter (a ‘‘Third-Party Claim’’) that may give rise to a claim for indemnification against the other Party (the ‘‘Indemnifying Party’’) under this §8, then the Indemnified Party shall promptly (and in any event within [5 business days] after receiving notice of the Third-Party Claim) notify the Indemnifying Party thereof in writing.
(ii) The Indemnifying Party will have the right at any time to assume and thereafter conduct the defense of the Third-Party Claim with counsel of its choice [reasonably satisfactory to the Indemnified Party; provided, however, that the Indemnifying Party will not consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheld) unless the judgment or proposed settlement involves only the payment of money damages and does not impose an injunction or other equitable relief upon the Indemnified Party].
(iii) Unless and until the Indemnifying Party assumes the defense of the Third-Party Claim as provided in §8(d)(ii) above, however, the Indemnified Party may defend against the Third-Party Claim in any manner it may reasonably deem appropriate.
(iv) In no event will the Indemnified Party consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnifying Party [(not to be unreasonably withheld)].
(e) Determination of Adverse Consequences. All indemnification payments under this §8 shall be paid by the Indemnifying Party net of any Tax benefits and insurance coverage that may be available to the Indemnified Party [and shall be adjusted to take into account the time cost of money (using the Applicable Rate as the discount rate)]. All indemnification payments under this §8 shall be deemed adjustments to the Purchase Price.
(f) Waiver of Certain Damages. In no event shall any Party be entitled to recover or make a claim under this Agreement for any amounts in respect of, and in no event shall “Adverse Consequences” be deemed to include, (i) punitive damages (unless payable to a third party), (ii) consequential, incidental, special, or indirect damages, or (iii) lost profits, loss of future revenue or income, or any diminution of value or similar damages based on “multiple of profits” or “multiple of cash flow” or other valuation methodology, whether or not such damages were reasonably foreseeable or the Parties contemplated that such damages would be a probable result of a breach of this Agreement.
(g) Recoupment Against Buyer Notes. Target shall have the option of satisfying all or part of Target’s indemnity obligation that Target may be required to pay under this §8 by notifying Buyer that Target is reducing the principal amount outstanding under its Buyer Note. This shall affect the timing and amount of payments required under the Buyer Note in the same manner as if Buyer had made a permitted prepayment (without premium or penalty) thereunder.
(h) Exclusive Remedy. Buyer and Target acknowledge and agree that the foregoing indemnification provisions in this §8 shall be the exclusive remedy of Buyer and Target with respect to Division, Division Subsidiaries, and the transactions contemplated by this Agreement.
Alternative 1—add the following language if the Parties are seeking Minimal Indemnification: [Without limiting the generality of the foregoing, Buyer acknowledges and agrees that it shall not have any remedy after the Closing for any breach of the representations and warranties in §3(g)–(q) above.]
Alternative 2—If the Parties are seeking Limited Indemnification: omit Alternative 1 language above.
(i) Environmental Remedies.
Alternative 1—add the following paragraph if the Parties are seeking Minimal Indemnification:
[Without limiting the generality of §8(h), above, Buyer hereby waives any right, whether arising at law or in equity, to seek contribution, cost recovery, damages, or any other recourse or remedy from Target, and hereby releases Target, from any claim, demand, or liability, with respect to any environmental, health, or safety matter relating to the past, current, or future facilities, properties or operations of Division, Division Subsidiaries, and all of their respective predecessors or Affiliates, including any such matter arising under any Environmental Requirements and including any arising under the Comprehensive Environmental Response, Compensation, and Liability Act (‘‘CERCLA’’), any analogous state law, or the common law. Buyer hereby unconditionally agrees to indemnify, defend, and hold harmless Target from any and all liability, loss, cost, or expense with respect to any such environmental, health, or safety matter (including any arising under any Environmental Requirements and including CERCLA, any analogous state law, or the common law).]
Alternative 2—add the following paragraph if the Parties are seeking Limited Indemnification:
[Without limiting the generality of §8(h), above, Buyer understands and agrees that its right to indemnification under §8(b) for breach of the representations and warranties contained in §3(q) shall constitute its sole and exclusive remedy against Target with respect to any environmental, health, or safety matter relating to the past, current or future facilities, properties or operations of Division, Division Subsidiaries, and all of their respective predecessors or Affiliates, including any such matter arising under any Environmental Requirements. Aside from such right to indemnification, Buyer hereby waives any right, whether arising at law or in equity, to seek contribution, cost recovery, damages, or any other recourse or remedy from Target, and hereby releases Target from any claim, demand, or liability, with respect to any such environmental, health, or safety matter (including any matter arising under any Environmental Requirements and including any matter arising under the Comprehensive Environmental Response, Compensation, and Liability Act (‘‘CERCLA’’), any analogous state law, or the common law). Except as set forth above, Buyer hereby unconditionally agrees to indemnify, defend, and hold harmless Target from any and all liability, loss, cost or expense with respect to any such environmental, health, or safety matter (including any matter arising under any Environmental Requirements and including CERCLA, any analogous state law, and the common law).]
§9. Termination.
(a) Termination of Agreement. Certain of the Parties may terminate this Agreement as provided below:
(i) Buyer and Target may terminate this Agreement by mutual written consent at any time prior to the Closing;
(ii) Buyer may terminate this Agreement by giving written notice to Target at any time prior to the Closing in the event (A) Target has within the then previous [10 business days] given Buyer any notice pursuant to §5(e)(i) above and (B) the development that is the subject of the notice has had a Material Adverse Effect;
(iii) Buyer may terminate this Agreement by giving written notice to Target at any time prior to the Closing (A) in the event Target has breached any material representation, warranty, or covenant contained in this Agreement (other than the representations and warranties in §3(g)–(p) above) in any material respect, Buyer has notified Target of the breach, and the breach has continued without cure for a period of [30 days] after the notice of breach or (B) if the Closing shall not have occurred on or before __________ ___, ____, by reason of the failure of any condition precedent under §7(a) hereof (unless the failure results primarily from Buyer itself breaching any representation, warranty, or covenant contained in this Agreement); and
(iv) Target may terminate this Agreement by giving written notice to Buyer at any time prior to the Closing (A) in the event Buyer has breached any material representation, warranty, or covenant contained in this Agreement in any material respect, Target has notified Buyer of the breach, and the breach has continued without cure for a period of [30 days] after the notice of breach or (B) if the Closing shall not have occurred on or before __________ ___, ____, by reason of the failure of any condition precedent under §7(b) hereof (unless the failure results primarily from Target itself breaching any representation, warranty, or covenant contained in this Agreement).
(b) Effect of Termination. If any Party terminates this Agreement pursuant to §9(a) above, all rights and obligations of the Parties hereunder shall terminate without any liability of any Party to the other Party (except for any liability of any Party then in breach); provided, however, that the confidentiality provisions contained in §5(d) above shall survive termination.
§10. Miscellaneous.
(a) Press Releases and Public Announcements. No Party shall issue any press release or make any public announcement relating to the subject matter of this Agreement [prior to the Closing] without the prior written approval of the other Party; provided, however, that any Party may make any public disclosure it believes in good faith is required by applicable law or any listing or trading agreement concerning its publicly traded securities (in which case the disclosing Party will use its [reasonable] best efforts to advise the other Party prior to making the disclosure).
(b) No Third-Party Beneficiaries. This Agreement shall not confer any rights or remedies upon any Person other than the Parties and their respective successors and permitted assigns.
(c) Entire Agreement. This Agreement (including the documents referred to herein) constitutes the entire agreement between the Parties and supersedes any prior understandings, agreements, or representations by or between the Parties, written or oral, to the extent they relate in any way to the subject matter hereof.
(d) Succession and Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties named herein and their respective successors and permitted assigns. No Party may assign either this Agreement or any of its rights, interests, or obligations hereunder without the prior written approval of the other Party[; provided, however, that the Buyer may (i) assign any or all of its rights and interests hereunder to 1 or more of its Affiliates and (ii) designate 1 or more of its Affiliates to perform its obligations hereunder (in any or all of which cases the Buyer nonetheless shall remain responsible for the performance of all of its obligations hereunder)].
(e) Counterparts. This Agreement may be executed in any number of counterparts (including by pdf or other readable electronic format), each of which shall be deemed an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and will become effective when one or more counterparts have been signed by each of the parties and delivered (including by email) to the other parties, and all such counterparts together will constitute one and the same instrument.
(f) Headings. The section headings contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement.
(g) Notices. All notices, requests, demands, claims, and other communications hereunder shall be in writing. Any notice, request, demand, claim, or other communication hereunder shall be deemed duly given (i) when delivered personally to the recipient, (ii) 1 business day after being sent to the recipient by reputable overnight courier service (charges prepaid), (iii) 1 business day after being sent to the recipient by facsimile transmission or electronic mail, or (iv) 4 business days after being mailed to the recipient by certified or registered mail, return receipt requested and postage prepaid, and addressed to the intended recipient as set forth below:

If to Target:	Copy to:	
If to Buyer:	Copy to:	
Any Party may change the address to which notices, requests, demands, claims, and other communications hereunder are to be delivered by giving the other Party notice in the manner herein set forth.
(h) Governing Law. This Agreement shall be governed by and construed in accordance with the domestic laws of the State of __________ without giving effect to any choice or conflict of law provision or rule (whether of the State of _________ or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of _________.
(i) Amendments and Waivers. No amendment of any provision of this Agreement shall be valid unless the same shall be in writing and signed by Buyer and Target. Target may consent to any such amendment at any time prior to the Closing with the prior authorization of its board of directors; provided, however, that any amendment effected after Target Stockholders have approved this Agreement will be subject to the restrictions contained in the [APPLICABLE CORPORATION STATUTE]. No waiver by any Party of any provision of this Agreement or any default, misrepresentation, or breach of warranty or covenant hereunder, whether intentional or not, shall be valid unless the same shall be in writing and signed by the Party making such waiver, nor shall such waiver be deemed to extend to any prior or subsequent default, misrepresentation, or breach of warranty or covenant hereunder or affect in any way any rights arising by virtue of any prior or subsequent such occurrence.
(j) Severability. Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction.
(k) Expenses. Each of Buyer, Target Stockholders, Target, and Division Subsidiaries will bear his, her, or its own costs and expenses (including legal fees and expenses) incurred in connection with this Agreement and the transactions contemplated hereby; provided, however, that Buyer will also bear all of the costs and expenses of Target Stockholders, Target, and Division Subsidiaries (including all of their legal fees and expenses) incurred in connection with this Agreement and the transactions contemplated hereby (other than any Income Tax on any income or gain Target may realize on the transactions contemplated hereby) in the event that the transactions contemplated by this Agreement are consummated. Without limiting the generality of the foregoing, all transfer, documentary, sales, use, stamp, registration and other such Taxes, and all conveyance fees, recording charges and other fees and charges (including any penalties and interest) incurred in connection with the consummation of the transactions contemplated by this Agreement, shall be paid by Buyer when due, and Buyer will, at its own expense, file all necessary Tax Returns and other documentation with respect to all such Taxes, fees and charges, and, if required by applicable law, the Parties will, and will cause their Affiliates to, join in the execution of any such Tax Returns and other documentation.
(l) Construction. [The Parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement.] Any reference to any federal, state, local, or non-U.S. statute or law shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise. The word ‘‘including’’ shall mean including without limitation.
(m) Incorporation of Exhibits and Schedules. The Exhibits and Schedules identified in this Agreement are incorporated herein by reference and made a part hereof.
(n) Tax Matters.
[(i) Any agreement between Target and any of Division Subsidiaries regarding allocation or payment of Taxes or amounts in lieu of Taxes shall be deemed terminated at and as of the Closing.
(ii) Target will be responsible for the preparation and filing of all Tax Returns for Target for all periods as to which Tax Returns are due after the Closing Date (including the consolidated, unitary, and combined Tax Returns for Target that include the operations of Division and Division Subsidiaries for any period ending on or before the Closing Date). Target will make all payments required with respect to any such Tax Return; provided, however, that Buyer will indemnify Target pursuant to §8 above for any such Taxes that are Assumed Liabilities.
(iii) Buyer will be responsible for the preparation and filing of all Tax Returns for Division and Division Subsidiaries for all periods as to which Tax Returns are due after the Closing Date (other than for Taxes with respect to periods for which the consolidated, unitary, and combined Tax Returns of Target will include the operations of Division and Division Subsidiaries). Buyer will make all payments required with respect to any such Tax Returns; provided, however, that Target will reimburse Buyer concurrently therewith to the extent any payment Buyer is making relates to the operations of Division or any Division Subsidiary for any period ending on or before the Closing Date.
(iv) Buyer and Target will (A) cooperate in the preparation and filing of an election under Code [§338(h)(10)] [§336(e)] with respect to the sale of the stock of Division Subsidiaries hereunder and (B) take all such actions as are required in order to give effect to the election for state, local, and non-U.S. tax purposes to the greatest extent permitted by law.
(v) Buyer and Target agree to utilize, or cause their respective Affiliates to utilize, the [standard] [alternate] procedure set forth in Revenue Procedure 2004-53 with respect to wage reporting.]
(o) Employee Benefits Matters. [Buyer will adopt and assume at and as of the Closing each of the Employee Benefit Plans that are maintained or to which contributions are made solely for the benefit of current and former Division employees and each trust, insurance contract, annuity contract, or other funding arrangement thereunder. Buyer will ensure that the Employee Benefit Plans treat employment with Division and Division Subsidiaries prior to the Closing Date the same as employment with any of Buyer and its Subsidiaries from and after the Closing Date for purposes of eligibility, vesting, and benefit accrual. Target will transfer (or cause the plan administrators to transfer) at and as of the Closing all of the corresponding assets associated with the Employee Benefit Plans that Buyer is adopting and assuming. With respect to each Multiemployer Plan, the Parties shall take all actions necessary to comply with the requirements of ERISA §4204.]
(p) Bulk Transfer Laws. Buyer acknowledges that Target will not comply with the provisions of any bulk transfer laws of any jurisdiction in connection with the transactions contemplated by this Agreement.
(q) Governing Language. This Agreement has been negotiated and executed by the Parties in English. In the event any translation of this Agreement is prepared for convenience or any other purpose, the provisions of the English version shall prevail.
[(r) Tax Disclosure Authorization. Notwithstanding anything herein to the contrary, the Parties (and each Affiliate and Person acting on behalf of any Party) agree that each Party (and each employee, representative, and other agent of such Party) may disclose to any and all Persons, without limitation of any kind, the tax treatment and tax structure (as such terms are used in regulations promulgated under Code §6011) of the transactions contemplated by this agreement; [provided, however, that such disclosure may not be made until the earlier of date of (A) public announcement of discussions relating to the transaction, (B) public announcement of the transaction, or (C) execution of an agreement (with or without conditions) to enter into the transaction.] This authorization is not intended to permit disclosure of any other information including (without limitation) (A) any portion of any materials to the extent not related to the transaction’s tax treatment or tax structure, (B) the identities of participants or potential participants, (C) the existence or status of any negotiations, (D) any pricing or financial information (except to the extent such pricing or financial information is related to the transaction’s tax treatment or tax structure), or (E) any other term or detail not relevant to the transaction’s tax treatment or the tax structure.]
* * * * *

IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on [as of] the date first above written.
[BUYER]
By: _____________________________________________
Title: ____________________________________________
[TARGET]
By: _____________________________________________
Title: ____________________________________________