ASSET PURCHASE AGREEMENT
BETWEEN
__________
AND
_________________
________ ___,_____

TABLE OF CONTENTS
§1. Definitions	4
§2. Basic Transaction	14
(a) Purchase and Sale of Assets	14
(b) Assumption of Liabilities	14
(c) Purchase Price	15
(d) Cash Payment to Target	15
(e) The Closing	15
(f) Deliveries at the Closing	16
(g) Allocation	16
§3. Target’s Representations and Warranties	16
(a) Organization of Target	17
(b) Authorization of Transaction	17
(c) Non-contravention	17
(d) Brokers’ Fees	17
(e) Title to Assets	17
(f) Subsidiaries	17
(g) Financial Statements	18
(h) Events Subsequent to Most Recent Fiscal Year End	18
(i) Undisclosed Liabilities	20
(j) Legal Compliance	20
(k) Tax Matters	20
(l) Real Property	23
(m) Intellectual Property	25
(n) Tangible Assets	27
(o) Inventory	27
(p) Contracts	27
(q) Notes and Accounts Receivable	28
(r) Powers of Attorney	28
(s) Insurance	28
(t) Litigation	29
(u) Product Warranty	29
(v) Product Liability	29
(w) Employees	29
(x) Employee Benefits	29
(y) Guaranties	31
(z) Environmental, Health, and Safety Matters	31
(aa) IT Assets	32
(bb) Certain Business Relationships with Target and Its Subsidiaries	33
(cc) Disclosure	33
(dd) Customers and Suppliers	33
(ee) Data Privacy and Security 	33
(ff) Investment	34
(gg) Disclaimer of Other Representations and Warranties	34
§4. Buyer’s Representations and Warranties	34
(a) Organization of Buyer	35
(b) Authorization of Transaction	35
(c) Non-contravention	35
(d) Brokers’ Fees	35
§5. Pre-Closing Covenants	35
(a) General	35
(b) Notices and Consents	35
(c) Union Assignment/Assumption Agreement(s)	36
(d) Operation of Business	36
(e) Preservation of Business	36
(f) Full Access	36
(g) Notice of Developments	36
(h) Exclusivity	37
(i) Maintenance of Real Property	37
(j) Leases	37
(k) Title Insurance and Surveys	37
§6. Conditions to Obligation to Close	37
(a) Conditions to Buyer’s Obligation	37
(b) Conditions to Target’s Obligation	41
§7. Termination	42
(a) Termination of Agreement	42
(b) Effect of Termination	42
§8. Miscellaneous	43
(a) Survival of Representations and Warranties	43
(b) Press Releases and Public Announcements	43
(c) No Third-Party Beneficiaries	43
(d) Entire Agreement	43
(e) Succession and Assignment	43
(f) Counterparts	43
(g) Headings	44
(h) Notices	44
(i) Governing Law	44
(j) Amendments and Waivers	44
(k) Severability	44
(l) Expenses	44
(m) Construction	45
(n) Incorporation of Exhibits and Schedules	45
(o) Tax Matters	45
(p) Employee Benefits Matters	46
(q) Bulk Transfer Laws	46
(r) Governing Language	47
(s) Tax Disclosure Authorization	47

Exhibit A—Agreement with Target Stockholders
Exhibit B—Form of Buyer Notes
Exhibit C—Escrow Agreement
Exhibit D—Forms of Assignments
Exhibit E—Form of Assumption
Exhibit F—Allocation Schedule
Exhibit G—Historical Financial Statements
Exhibit H—Forms of Side Agreements
Exhibit I—Form of Opinion of Target’s Counsel
Exhibit J—Form of Opinion of Buyer’s Counsel
Disclosure Schedule—Exceptions to Representations and Warranties
[EXHIBITS B THROUGH J AND THE DISCLOSURE SCHEDULE HAVE BEEN OMITTED FROM THIS SAMPLE ACQUISITION AGREEMENT 2303]

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 all of the assets (and assume certain of the liabilities) of Target in return for cash and the 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 right, title, and interest in and to all of the assets of Target, 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, sublicenses, agreements, covenants not to sue, and permissions 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 its 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 in an amount equal to Target’s good faith estimate of the unpaid Taxes (other than Income Taxes) of Target arising with respect to periods beginning after the date of the Most Recent Balance Sheet in the Ordinary Course of Business (computed in accordance with the past custom and practice of Target for filing its 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 or (ii) 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).
‘‘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.
‘‘Agreement with Target Stockholders’’ means the Agreement with Target Stockholders entered into concurrently herewith and attached hereto as Exhibit A.
‘‘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 (a) all liabilities of Target set forth on the face of the Most Recent Balance Sheet (rather than in any notes thereto), (b) all liabilities of Target that have arisen after the Most Recent Fiscal Month End in the Ordinary Course of Business (other than any liability resulting from, arising out of, relating to, in the nature of, or caused by any breach of contract, breach of warranty, tort, infringement or misappropriation, violation of law, or environmental matter, including without limitation those arising under Environmental, Health, and Safety Requirements), (c) all obligations of Target under the agreements, contracts, leases, licenses, and other arrangements referred to in the definition of Acquired Assets either (i) to furnish goods, services, and other non-Cash benefits to another party after the Closing or (ii) to pay for goods, services, and other non-Cash benefits that another party will furnish to it after the Closing, (d) [all liabilities and obligations of Target under its Employee Benefit Plans], and (e) [all other liabilities and obligations of or relating to Target (including such liabilities and obligations relating to environmental matters) specifically set forth in the Disclosure Schedule under an express statement (that Buyer has initialed) to the effect that the definition of Assumed Liabilities will include the liabilities and obligations so disclosed]; provided, however, that, notwithstanding the above, the Assumed Liabilities shall not include (i) any liability of Target for Income Taxes, (ii) except as provided in §8(l) below, any liability of Target for transfer, sales, use, and other Taxes arising in connection with the consummation of the transactions contemplated hereby, (iii) any liability of Target for Taxes (other than Income Taxes) arising with respect to periods through the date of the Most Recent Balance Sheet, (iv) any liability of Target for the unpaid Taxes of any Person under Reg. §1.1502-6 (or any similar provision of state, local, or non-U.S. law), as a transferee or successor, by contract, or otherwise, (v) any obligation of Target to indemnify any Person (including any of Target Stockholders) by reason of the fact that such Person was a director, officer, employee, or agent of Target or any of its Subsidiaries or was serving at the request of any such entity 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), (vi) any liability of Target for costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby, or (vii) 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).
Add the following paragraph if there is a purchase price adjustment and Taxes are taken into account:
[; provided further, however, that in the case of clauses (i), (ii), (iii) and (iv) in the proviso above, Assumed Liabilities shall only exclude such Taxes to the extent that such Taxes exceed the amount, if any, specifically reserved for such Taxes of Target in the final determination of Closing Indebtedness and taken into account in determining the Purchase Price pursuant to §2(e) below].
‘‘Basis’’ means any past or present fact, situation, circumstance, status, condition, activity, practice, plan, occurrence, event, incident, action, failure to act, or transaction that forms or could form the basis for any specified consequence.
‘‘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.
‘‘CERCLA’’ has the meaning set forth in §3(z).
‘‘Closing’’ has the meaning set forth in §2(d) below.
‘‘Closing Purchase Price’’ has the meaning set forth in §2(c) below.
‘‘Closing Date’’ has the meaning set forth in §2(d) below.
‘‘COBRA’’ means the requirements of Part 6 of Subtitle B of Title I of ERISA and Code §4980B and of any similar state law.
‘‘Code’’ means the Internal Revenue Code of 1986, as amended.
‘‘Confidential Information’’ means any information concerning the business and affairs of Target and its Subsidiaries that is not already generally available to the public.
‘‘Controlled Group’’ has the meaning set forth in Code §1563.
‘‘Data Laws’’ means laws, regulations, guidelines, and rules in any jurisdiction (federal, state, local, and non-U.S.) applicable to data privacy, data security, and/or personal information[, as well as industry standards applicable to Target and its Subsidiaries].
‘‘Disclosure Schedule’’ has the meaning set forth in §3 below.
‘‘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 of any kind.
‘‘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, Health, and Safety Requirements’’ means all federal, state, local, and non-U.S. statutes, regulations, ordinances, and similar provisions having the force or effect of law, all judicial and administrative orders and determinations, and all common law concerning public or worker health and safety (with respect to exposure to hazardous substances), pollution, or protection of the environment, including without limitation all those relating to the presence, use, production, generation, handling, transportation, treatment, storage, disposal, distribution, labeling, testing, processing, discharge, release, threatened release, control, exposure to, or cleanup of any hazardous materials, substances, or wastes, chemical substances or mixtures, pesticides, pollutants, contaminants, toxic chemicals, petroleum products or byproducts, asbestos, polychlorinated biphenyls, noise, odor, mold, or radiation.
‘‘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.
‘‘Escrow Agent’’ has the meaning set forth in §2(c) below.
‘‘Escrow Agreement’’ means the Escrow Agreement entered into concurrently herewith and attached hereto as Exhibit C.
‘‘Escrow Amount’’ means $_____________.
‘‘Estoppel Certificates’’ has the meaning set forth in §6(a) below.
‘‘Excess Loss Account’’ has the meaning set forth in Reg. §1.1502-19.
‘‘Fiduciary’’ has the meaning set forth in ERISA §3(21).
‘‘Financial Statements’’ has the meaning set forth in §3(g) below.
‘‘FIRPTA Affidavit’’ has the meaning set forth in §6(a) below.
‘‘Fraud’’ means common law fraud, the elements of which are set forth in ABRY Partners V, L.P. v. F&W Acquisition LLC (Del. Ch. 2006).
‘‘GAAP’’ means U.S. 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.
‘‘Improvements’’ has the meaning set forth in §3(l) below.
‘‘Income Tax’’ means any federal, state, local, or non-U.S. income tax, 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, and including any amendment thereof.
‘‘Intellectual Property’’ means all of the following in any jurisdiction throughout the world: (a) all inventions (whether patentable or unpatentable and whether or not reduced to practice), all improvements thereto, and all patents, patent applications, and patent disclosures, together with all reissuances, continuations, divisions, continuations-in-part, revisions, extensions, and reexaminations thereof, (b) all trademarks, service marks, trade dress, logos, slogans, trade names, corporate names, Internet domain names, other source identifiers, and rights in telephone numbers and social media assets, together with all translations, adaptations, derivations, and combinations thereof and including all goodwill associated therewith, and all applications, registrations, and renewals in connection therewith, (c) all rights of publicity, privacy, and endorsement (including rights to the use of names, voices, likenesses, images, appearances, signatures, and biographical information of real persons), (d) rights in databases and collections of data, and all copyrightable works, all copyrights, and all applications, registrations, and renewals in connection therewith, (e) all mask works and all applications, registrations, and renewals in connection therewith, (f) all trade secrets and Confidential Information (including ideas, research and development, know-how, formulas, compositions, manufacturing and production processes and techniques, technical data, designs, drawings, specifications, customer and supplier lists, pricing and cost information, and business and marketing plans and proposals), (g) all computer software (including source code, object code, and related documentation), (h) all material advertising and promotional materials, (i) all other proprietary rights, and (j) all copies and tangible embodiments thereof (in whatever form or medium).
“Intercompany Transaction” has the meaning set forth in Reg. §1.1502-13.
“IT Systems” has the meaning set forth in §3(aa) below.
“Knowledge” means actual knowledge after reasonable investigation. 
“Lease Consents” has the meaning set forth in §6(a) below.
‘‘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 held by Target or any of its Subsidiaries, including the right to all security deposits and other amounts and instruments held by or on behalf of Target or any of its Subsidiaries thereunder.
‘‘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 Target or any of its Subsidiaries 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 Intellectual Property or the borrowing of money.]
‘‘Material Adverse Effect’’ or ‘‘Material Adverse Change’’ means any effect or change that would be materially adverse to the business, assets, condition (financial or otherwise), operating results, operations, or business prospects of Target and its Subsidiaries, taken as a whole, or to the ability of any Party to consummate timely the transactions contemplated hereby.
‘‘Material Leased Real Property’’ has the meaning set forth in §6(a) below.
‘‘Most Recent Balance Sheet’’ means the balance sheet contained within the Most Recent Financial Statements.
‘‘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.
‘‘Most Recent Fiscal Year 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 to the extent reasonably consistent with policies, procedures, and protocols recommended by the Centers for Disease Control and Prevention, the World Health Organization, and other governmental authorities 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 Target or any of its 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 Real Property: (a) real estate taxes, assessments and other governmental levies, fees, or charges imposed with respect to such Real Property that are (i) not due and payable as of the Closing Date or (ii) being contested in good faith, for which adequate reserves have been established in accordance with GAAP and which reserves are included in the Acquired Assets; (b) mechanics’ liens and similar liens for labor, materials, or supplies provided with respect to such Real Property incurred in the Ordinary Course of Business for amounts that are (i) not due and payable as of the Closing Date or (ii) being contested in good faith that would not, individually or in the aggregate, materially impair the use or occupancy of the Real Property or the operation of the business of Target and its Subsidiaries as currently conducted on such Real Property; (c) zoning, building codes, and other land use laws regulating the use or occupancy of such Real Property or the activities conducted thereon that are imposed by any governmental authority having jurisdiction over such Real Property that are not violated by the current use or occupancy of such Real Property or the operation of the business of Target and its Subsidiaries as currently conducted thereon; and (d) easements, covenants, conditions, restrictions, and other similar matters of record affecting title to such Real Property that do not or would not materially impair the use or occupancy of such Real Property in the operation of the business of Target or its Subsidiaries as currently conducted thereon.
‘‘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).
‘‘Prohibited Transaction’’ has the meaning set forth in ERISA §406 and Code §4975.
‘‘Purchase Price’’ has the meaning set forth in §2(c) below.
‘‘Real Property’’ has the meaning set forth in §3(l) below.
‘‘Real Property Laws’’ has the meaning set forth in §3(l) below.
‘‘Reportable Event’’ has the meaning set forth in ERISA §4043.
‘‘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 §6(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, whether 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.
‘‘Title Commitments’’ has the meaning set forth in §6(a) below.
‘‘Title Company’’ has the meaning set forth in §6(a) below.
‘‘Title Policies’’ has the meaning set forth in §6(a) below.
‘‘WARN Act’’ has the meaning set forth in §3(h) below.
§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’’) less the Escrow Amount (such difference, the ‘‘Closing Purchase Price’’) by delivery of (i) its promissory notes (the ‘‘Buyer Notes’’) in the form of Exhibit B attached hereto in the aggregate principal amount of $__________ and (ii) cash for the balance of the Closing Purchase Price payable by wire transfer or delivery of other immediately available funds. Buyer agrees to pay to __________, as escrow agent (the ‘‘Escrow Agent’’), at the Closing the Escrow Amount in cash payable by wire transfer or delivery of other immediately available funds for deposit into the escrow account. The Escrow Amount plus any interest accrued thereon will be available to satisfy any amounts owed by Target Stockholders to Buyer under the Agreement with Target Stockholders in accordance with the terms of the Escrow Agreement attached hereto as Exhibit C.
(d) Cash Payment to Target. Immediately prior to the Closing, Target will cause its Subsidiaries to pay Target an aggregate amount equal to the consolidated Cash of its Subsidiaries as of the Closing. Target may cause any of its Subsidiaries 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 signatures (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 will deliver to Buyer the various certificates, instruments, and documents referred to in §6(a) below; (ii) Buyer will deliver to Target the various certificates, instruments, and documents referred to in §6(b) below; (iii) Target will 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 C-1 through C-_______ 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 D and (B) such other instruments of assumption as Target and its counsel may [reasonably] request; and (v) Buyer will deliver to Target and the Escrow Agent the consideration specified in §2(c) above.
[(g) Allocation. The Parties agree to allocate the Purchase Price (and all other capitalizable costs) among the Acquired Assets for all purposes (including financial accounting and Tax purposes) in accordance with the allocation schedule attached hereto as Exhibit F.]
§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. 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 of its Subsidiaries is subject or any provision of the charter or bylaws of Target or any of its Subsidiaries 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 of its Subsidiaries 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. Neither Target nor any of its Subsidiaries 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 Subsidiary of Target 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 Assets. Target and its Subsidiaries have good and marketable title to, or a valid leasehold interest in, the properties and assets used by them, located on their premises, or shown on the Most Recent Balance Sheet or acquired after the date thereof, free and clear of all Liens, except for properties and assets disposed of in the Ordinary Course of Business since the date of the Most Recent Balance Sheet. Without limiting the generality of the foregoing, Target has good and marketable title to all of the Acquired Assets, free and clear of any Liens or restriction on transfer.
(f) Subsidiaries. §3(f) of the Disclosure Schedule sets forth for each Subsidiary of Target (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 Subsidiary of Target is a corporation duly organized, validly existing, and in good standing under the laws of the jurisdiction of its incorporation. Each Subsidiary of Target 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 Subsidiary of Target has full corporate 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 Subsidiary of Target have been duly authorized and are validly issued, fully paid, and non-assessable. Target and/or 1 or more of its Subsidiaries hold of record and own beneficially all of the outstanding shares of each Subsidiary of Target, free and clear of any restrictions on transfer (other than restrictions under the Securities Act and state securities laws), Taxes, Liens, options, warrants, purchase rights, contracts, commitments, equities, claims, and demands. There are no outstanding or authorized options, warrants, purchase rights, subscription rights, conversion rights, exchange rights, or other contracts or commitments that could require Target or any of its Subsidiaries to sell, transfer, or otherwise dispose of any capital stock of any of its Subsidiaries or that could require any Subsidiary of Target to issue, sell, or otherwise cause to become outstanding any of its own capital stock (other than this Agreement). There are no outstanding stock appreciation, phantom stock, profit participation, or similar rights with respect to any Subsidiary of Target. There are no voting trusts, proxies, or other agreements or understandings with respect to the voting of any capital stock of any Subsidiary of Target. Neither Target nor any of its Subsidiaries controls directly or indirectly or has any direct or indirect equity participation in any Person that is not a Subsidiary of Target. Except for the Subsidiaries set forth in §3(f) of the Disclosure Schedule, neither Target nor any of its Subsidiaries 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 G are the following financial statements (collectively the ‘‘Financial Statements’’): (i) audited consolidated balance sheets and statements of income, changes in stockholders’ equity, and cash flow as of and for the fiscal years ended _________ ____, _____, _________ ____, _____, _________ ____, _____, _________ ____, _____, and _________ ____, _____, (the ‘‘Most Recent Fiscal Year End’’) for Target and its 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 Target and its Subsidiaries. The Financial Statements (including the notes thereto) have been prepared in accordance with GAAP throughout the periods covered thereby, present fairly the financial condition of Target and its Subsidiaries as of such dates and the results of operations of Target and its Subsidiaries for such periods; provided, however, that the Most Recent Financial Statements are subject to normal year-end adjustments (which will not be material individually or in the aggregate) and lack footnotes and other presentation items.
(h) Events Subsequent to Most Recent Fiscal Year End. Since the Most Recent Fiscal Year End, there has not been any Material Adverse Change. Without limiting the generality of the foregoing, since that date:
(i) neither Target nor any of its Subsidiaries has sold, leased, transferred, or assigned any material assets, tangible or intangible, outside the Ordinary Course of Business;
(ii) neither Target nor any of its Subsidiaries has entered into any material agreement, contract, lease, or license outside the Ordinary Course of Business;
(iii) no party (including Target or any of its Subsidiaries) has accelerated, terminated, made material modifications to, or cancelled any material agreement, contract, lease, or license to which Target or any of its Subsidiaries is a party or by which any of them is bound;
(iv) neither Target nor any of its Subsidiaries has imposed any Lien upon any of its assets, tangible or intangible;
(v) neither Target nor any of its Subsidiaries has made any material capital expenditures outside the Ordinary Course of Business;
(vi) neither Target nor any of its Subsidiaries has made any material capital investment in, or any material loan to, any other Person outside the Ordinary Course of Business;
(vii) Target and its Subsidiaries have not created, incurred, assumed, or guaranteed more than $_________ in aggregate indebtedness for borrowed money and capitalized lease obligations;
(viii) neither Target nor any of its Subsidiaries has transferred, assigned, or granted any license, sublicense, agreement, covenant not to sue, or permission with respect to any material Intellectual Property;
(ix) there has been no change made or authorized in the charter or bylaws of Target or any of its Subsidiaries;
(x) neither Target nor any of its Subsidiaries has issued, sold, or otherwise disposed of any of its capital stock, or granted any options, warrants, or other rights to purchase or obtain (including upon conversion, exchange, or exercise) any of its capital stock;
(xi) neither Target nor any of its Subsidiaries has declared, set aside, or paid any dividend or made any distribution with respect to its capital stock (whether in cash or in kind) or redeemed, purchased, or otherwise acquired any of its capital stock;
(xii) neither Target nor any of its Subsidiaries has experienced any material damage, destruction, or loss (whether or not covered by insurance) to its property;
(xiii) neither Target nor any of its Subsidiaries has made any loan to, or entered into any other transaction with, any of its directors, officers, and employees outside the Ordinary Course of Business;
(xiv) neither Target nor any of its Subsidiaries has entered into or terminated any employment contract providing for annual compensation in excess of $[  ] or collective bargaining agreement or modified the terms of any existing such contract or agreement, or become bound by any collective bargaining relationship;
(xv) neither Target nor any of its Subsidiaries has granted any increase in the base compensation of any of its directors, officers, and employees outside the Ordinary Course of Business;
(xvi) neither Target nor any of its Subsidiaries has adopted, amended, modified, or terminated any bonus, profit sharing, incentive, severance, or other plan, contract, or commitment for the benefit of any of its directors, officers, and employees (or taken any such action with respect to any other Employee Benefit Plan);
(xvii) neither Target nor any of its Subsidiaries has made any other material change in employment terms for any of its directors, officers, and employees outside the Ordinary Course of Business;
(xviii) neither Target nor any of its Subsidiaries has implemented any employee layoffs requiring notice under the Worker Adjustment and Retraining Notification Act of 1988, as amended, or any similar state, local, or non-U.S. law, regulation, or ordinance (collectively the ‘‘WARN Act’’);
(xix) Target and its Subsidiaries have not changed their normal business practices or taken any other action outside the Ordinary Course of Business in order to generate Cash;
(xx) neither Target nor any of its Subsidiaries has made any loans or advances of money; and
(xxi) neither Target nor any of its Subsidiaries has committed to any of the foregoing.
(i) Undisclosed Liabilities. Neither Target nor any of its Subsidiaries has any material liability (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 any liability for Taxes), except for (i) liabilities set forth on the face of the Most Recent Balance Sheet (rather than in any notes thereto) and (ii) liabilities that have arisen after the Most Recent Fiscal Month End in the Ordinary Course of Business.
(j) Legal Compliance. Each of Target and its Subsidiaries has complied with all applicable laws (including rules, regulations, codes, plans, injunctions, judgments, orders, decrees, rulings, and charges thereunder and including the Foreign Corrupt Practices Act, 15 U.S.C. 78dd-1, et seq.) of federal, state, local, and non-U.S. governments (and all agencies thereof), and no action, suit, proceeding, hearing, investigation, charge, complaint, claim, demand, or notice has been filed or commenced against any of them alleging any failure so to comply, except where the failure to comply would not have a Material Adverse Effect.
(k) Tax Matters.
(i) Each of Target and its Subsidiaries has filed all material Tax Returns that it was required to file. All such Tax Returns as so filed disclose all Taxes required to be paid for the periods covered thereby. All material Taxes due and owing by Target or any of its Subsidiaries (whether or not shown on any Tax Return) have been paid. Neither Target nor any of its Subsidiaries currently is the beneficiary of any extension of time within which to file any Tax Return. There are no Liens for Taxes (other than Taxes not yet due and payable) upon any of the assets of Target or any of its Subsidiaries. Each of Target and its Subsidiaries has withheld and paid all Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, or other third party, and all Forms W-2 and 1099 required with respect thereto have been properly completed and timely filed.
(ii) There is no material dispute or claim concerning any Tax liability of Target or any of its Subsidiaries either (A) claimed or raised by any authority in writing or (B) as to which Target Stockholders or any of the directors and officers of Target and its Subsidiaries has Knowledge based upon personal contact with any agent of such authority.
(iii) §3(k) of the Disclosure Schedule lists all federal, state, local, and non-U.S. Income Tax Returns filed with respect to Target or any of its Subsidiaries 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 Target or any of its Subsidiaries since _________ ____, _____. Neither Target nor any of its Subsidiaries has waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency.
(iv) Neither Target nor any of its Subsidiaries is a party to any Tax allocation or sharing agreement. Neither Target nor any of its Subsidiaries (A) 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) or (B) has any liability for the Taxes of any Person (other than Target or any of its Subsidiaries) under Reg. §1.1502-6 (or any similar provision of state, local, or non-U.S. law), as a transferee or successor, by contract, or otherwise.
(v) The unpaid Taxes of Target and its Subsidiaries (A) did not, as of the Most Recent Fiscal Month End, exceed the reserve for Tax liability (rather than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the Most Recent Balance Sheet (rather than in any notes thereto) and (B) will not exceed that reserve as adjusted for operations and transactions through the Closing Date in accordance with the past custom and practice of Target and its Subsidiaries in filing their Tax Returns.
(vi) None of Target’s Subsidiaries will be required to include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any:
(A) change in method of accounting for a taxable period (or portion thereof) ending on or prior to the Closing Date;
(B) ‘‘closing agreement,’’ as described in Code §7121 (or any corresponding provision of state, local, or non-U.S. income Tax law);
(C) installment sale or open transaction made on or prior to the Closing Date;
(D) prepaid amount received on or prior to the Closing Date; or
(E) election under Code §108(i).
(vii) Neither Target nor any of its Subsidiaries has distributed stock of another Person, or has had its stock distributed by another Person, in a transaction that was purported or intended to be governed in whole or in part by Code §355 or Code §361.
(viii) 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).
(l) Real Property.
(i) §3(l)(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:
(A) Target or 1 of its Subsidiaries has good and marketable fee simple title, free and clear of all Liens, except Permitted Encumbrances;
(B) except as set forth in §3(l)(i)(B) of the Disclosure Schedule, neither Target nor any of its Subsidiaries has leased or otherwise granted to any Person the right to use or occupy such Owned Real Property or any portion thereof; and
(C) other than the right of Buyer pursuant to this Agreement, 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(l)(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 Leased Real Property (including the date and name of the parties to such Lease document). Target has delivered to Buyer a true and complete copy of each such Lease document, and in the case of any oral Lease, a written summary of the material terms of such Lease. Except as set forth in §3(l)(ii) of the Disclosure Schedule, with respect to each of the Leases:
(A) such Lease is legal, valid, binding, enforceable and in full force and effect;
(B) except for those Leases for which Lease Consents are obtained, the transactions contemplated by this Agreement do not require the consent of any other party to such Lease, will not result in a breach of or default under such Lease, and will not otherwise cause such Lease to cease to be legal, valid, binding, enforceable and in full force and effect on identical terms following the Closing;
(C) neither Target’s nor any of its Subsidiaries’ possession and quiet enjoyment of the Leased Real Property under such Lease has been disturbed and, to the Knowledge of any Target Stockholder and the directors and officers of Target and its Subsidiaries, there are no disputes with respect to such Lease;
(D) to the Knowledge of any Target Stockholder and the directors and officers of Target and its Subsidiaries, neither Target, nor any of its Subsidiaries nor any other party to the Lease is in breach of or default under such Lease, and, to the Knowledge of any Target Stockholder and the directors and officers of Target and its Subsidiaries, no event has occurred or circumstance exists that, with the delivery of notice, the passage of time or both, would constitute such a breach or default, or permit the termination, modification or acceleration of rent under such Lease;
(E) no security deposit or portion thereof deposited with respect to such Lease has been applied in respect of a breach of or default under such Lease that has not been redeposited in full;
(F) neither Target nor any of its Subsidiaries owes, or will owe in the future, any brokerage commissions or finder’s fees with respect to such Lease;
(G) the other party to such Lease is not an Affiliate of, and otherwise does not have any economic interest in, Target or any of its Subsidiaries;
(H) neither Target nor any of its Subsidiaries has subleased, licensed or otherwise granted any Person the right to use or occupy the Leased Real Property or any portion thereof; and
(I) neither Target nor any of its Subsidiaries has collaterally assigned or granted any other Lien in such Lease or any interest therein. 
(iii) The Owned Real Property identified in §3(l)(i) of the Disclosure Schedule and the Leased Real Property identified in §3(l)(ii) of the Disclosure Schedule (collectively, the ‘‘Real Property’’) comprise all of the real property used or intended to be used in the business of Target and its Subsidiaries; and neither Target nor any of its Subsidiaries is a party to any agreement or option to purchase any real property or interest therein.
(iv) All buildings, structures, fixtures, building systems and equipment, and all components thereof, included in the Real Property (the ‘‘Improvements’’) are in good condition and repair and sufficient for the operation of the business of Target and its Subsidiaries. There are no facts or conditions affecting any of the Improvements that would, individually or in the aggregate, interfere in any material respect with the use or occupancy of the Improvements or any portion thereof in the operation of the business of Target and its Subsidiaries as currently conducted thereon.
(v) Neither Target nor any of its Subsidiaries has received written notice of any condemnation, expropriation or other proceeding in eminent domain affecting any parcel of Owned Real Property or any portion thereof or interest therein. [To the Knowledge of any Target Stockholder and the directors and officers of Target and its Subsidiaries, there is no injunction, decree, order, writ, or judgment outstanding, or any claim, litigation, administrative action or similar proceeding, pending or threatened, relating to the ownership, lease, use or occupancy of the Real Property or any portion thereof, or the operation of the business of Target and its Subsidiaries as currently conducted thereon.]
(vi) To the Knowledge of any Target Stockholder and the directors and officers of Target and its Subsidiaries, the Real Property is in material compliance with all applicable building, zoning, subdivision, health and safety and other land use laws, including The Americans with Disabilities Act of 1990, as amended, and all insurance requirements affecting the Real Property (collectively, the ‘‘Real Property Laws’’). Neither Target nor any of its Subsidiaries has received any notice of violation of any Real Property Law and, to the Knowledge of any Target Stockholder and the directors and officers of Target and its Subsidiaries, there is no Basis for the issuance of any such notice or the taking of any action for such violation.
(vii) Each parcel of Real Property has direct access to a public street adjoining the Real Property or has access to a public street via insurable easements benefitting such parcel of Real Property, and such access is not dependent on any land or other real property interest that is not included in the Real Property. None of the Improvements or any portion thereof is dependent for its access, use or operation on any land, building, improvement or other real property interest that is not included in the Real Property.
(viii) All water, oil, gas, electrical, steam, compressed air, telecommunications, sewer, storm and waste water systems and other utility services or systems for the Real Property have been installed and are operational and sufficient for the operation of the business of Target and its Subsidiaries as currently conducted thereon.
(ix) Target’s and its Subsidiaries’ use or occupancy of the Real Property or any portion thereof and the operation of the business of Target and its Subsidiaries as currently conducted is not dependent on a ‘‘permitted non-conforming use’’ or ‘‘permitted non-conforming structure’’ or similar variance, exemption or approval from any governmental authority.
(x) To the Knowledge of any Target Stockholder and the directors and officers of Target and its Subsidiaries, the current use and occupancy of the Owned Real Property and the operation of the business of Target and its Subsidiaries as currently conducted thereon does not violate in any material respect any easement, covenant, condition, restriction or similar provision in any instrument of record or other unrecorded agreement affecting such Owned Real Property.
(xi) None of the Real Property or any portion thereof is located in a flood hazard area (as defined by the Federal Emergency Management Agency).
(m) Intellectual Property.
(i) None of Target or any of its Subsidiaries, or any of its or their respective businesses as presently conducted, and as presently proposed to be conducted, has or will interfere with, has or will infringe upon, has or will dilute, has or will misappropriate, or otherwise has or will come into conflict with, any Intellectual Property rights of third parties; there are no facts indicating a likelihood of the foregoing; and none of Sellers has ever received any charge, complaint, claim, demand, or notice alleging any such interference, infringement, dilution, misappropriation, or conflict (including any claim that Target or any of its Subsidiaries must license or refrain from accessing or using any Intellectual Property rights of any third party). To the Knowledge of any of Sellers, no third party has interfered with, infringed upon, diluted, misappropriated, or otherwise come into conflict with, any Intellectual Property rights of Target or any of its Subsidiaries.
(ii) §3(m)(ii) of the Disclosure Schedule identifies each unexpired patent or registration that has been issued to Target or any of its Subsidiaries with respect to any of its Intellectual Property, identifies each pending patent application or application for registration that Target or any of its Subsidiaries 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 Target or any of its Subsidiaries has granted to any third party with respect to any of its Intellectual Property (each as amended to date). Target has delivered to Buyer correct and complete copies of all such licenses, sublicenses, agreements, covenants not to sue, and permissions (as amended to date). §3(m)(ii) of the Disclosure Schedule also identifies each of the following owned by Target or any of its Subsidiaries: (a) material unregistered trademarks, service marks, trade names, corporate names, or other source identifiers; (b) material Internet domain names (along with, in the case of each such Internet domain name, the registrar, registered holder, and administrative contact of record); (c) computer software items used in connection with any product or service offered by the Target or its Subsidiaries, or other material computer software items; (d) material databases and collections of data; [and] (e) material unregistered copyrights[; and (f) non-confidential descriptions of material trade secrets and Confidential Information]. With respect to each item of Intellectual Property identified or required to be identified in §3(m)(ii) of the Disclosure Schedule:
(A) Target and its Subsidiaries own all right, title, and interest in and to the item, free and clear of any Lien, license, or other restriction (except, with respect to personal information included in the item, such restrictions imposed by Data Laws);
(B) the item is not subject to any outstanding injunction, judgment, order, decree, ruling, or charge;
(C) no action, suit, proceeding, hearing, investigation, charge, complaint, claim, or demand is pending or, to the Knowledge of any Target Stockholder and the directors and officers of Target and its Subsidiaries, is threatened that challenges the legality, validity, enforceability, access, use, or ownership of the item; 
(D) neither Target nor any of its Subsidiaries is subject to any existing agreement to indemnify any Person for or against any interference, infringement, dilution, misappropriation, or other conflict with respect to the item; and
(E) no loss or expiration of the item is threatened, pending, or reasonably foreseeable, except for patents or copyrights expiring at the end of their statutory terms (and not as a result of any act or omission by Target and its Subsidiaries, including without limitation, a failure by Target and its Subsidiaries to pay any required maintenance or renewal fees).
(iii) §3(m)(iii) of the Disclosure Schedule identifies each material license, sublicense, agreement, covenant not to sue, or permission pursuant to which Target or any of its Subsidiaries accesses or uses any Intellectual Property owned by a third party. Target has delivered to Buyer correct and complete copies of all such licenses, sublicenses, agreements, covenants not to sue, and permissions (each as amended to date). With respect to each license, sublicense, agreement, covenant not to sue, or permission identified or required to be identified in §3(m)(iii) of the Disclosure Schedule:
(A) the license, sublicense, agreement, covenant not to sue, or permission is legal, valid, binding, enforceable, and in full force and effect in all material respects;
(B) no party to the license, sublicense, agreement, covenant not to sue, or permission is in material breach or default, and no event has occurred that with notice or lapse of time would constitute a material breach or default or permit termination, modification, or acceleration thereunder;
(C) no party to the license, sublicense, agreement, covenant not to sue, or permission has repudiated any material provision thereof; and
(D) neither Target nor any of its Subsidiaries has granted any sublicense or similar right with respect to the license, sublicense, agreement, covenant not to sue, or permission.
(n) Tangible Assets. The buildings, machinery, equipment, and other tangible assets that Target and its Subsidiaries own or lease are free from material defects (patent and latent), have been maintained in accordance with normal industry practice, and are in good operating condition and repair (subject to normal wear and tear).
(o) Inventory. The inventory of Target and its Subsidiaries consists of raw materials and supplies, manufactured and processed parts, work in process, and finished goods, all of which is merchantable and fit for the purpose for which it was procured or manufactured, and none of which is slow-moving, obsolete, damaged, or defective, subject only to the reserve for inventory writedown set forth on the face of the Most Recent Balance Sheet (rather than in any notes thereto) as adjusted for operations and transactions through the Closing Date in accordance with the past custom and practice of Target and its Subsidiaries.
(p) Contracts. §3(p) of the Disclosure Schedule lists the following contracts and other agreements to which Target or any of its Subsidiaries is a party:
(i) any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for lease payments in excess of $_________ per annum;
(ii) any agreement (or group of related agreements) for the purchase or sale of raw materials, commodities, supplies, products, or other personal property, or for the furnishing or receipt of services, the performance of which will extend over a period of more than 1 year or involve consideration in excess of $_________;
(iii) any agreement concerning a partnership or joint venture;
(iv) any agreement (or group of related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in excess of $_________ or under which it has imposed a Lien on any of its assets, tangible or intangible;
(v) any material agreement concerning confidentiality or non-competition;
(vi) any material agreement involving any Target Stockholder and his, her, or its Affiliates (other than Target and its Subsidiaries);
(vii) any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or other material plan or arrangement for the benefit of its current or former directors, officers, and employees;
(viii) any collective bargaining agreement;
(ix) any agreement for the employment of any individual on a full-time, part-time, consulting, or other basis providing annual compensation in excess of $_________ or providing material severance benefits;
(x) any agreement under which it has advanced or loaned any amount to any of its directors, officers, and employees outside the Ordinary Course of Business;
(xi) any agreement under which the consequences of a default or termination could have a Material Adverse Effect;
(xii) any agreement under which it has granted any Person any registration rights (including, without limitation, demand and piggyback registration rights);
(xiii) any settlement, conciliation or similar agreement with any Governmental Entity or which will involve payment after the execution date of this Agreement of consideration in excess of $_______;
(xiv) any agreement under which Target or any of its Subsidiaries has advanced or loaned any other Person amounts in the aggregate exceeding $_________; or
(xv) any other agreement (or group of related agreements) the performance of which involves consideration in excess of $_________.
Target has delivered to Buyer a correct and complete copy of each written agreement listed in §3(p) of the Disclosure Schedule (as amended to date) and a written summary setting forth the material terms and conditions of each oral agreement referred to in §3(p) of the Disclosure Schedule. With respect to each such agreement: (A) the agreement is legal, valid, binding, enforceable, and in full force and effect in all material respects; (B) no party is in material breach or default, and no event has occurred that with notice or lapse of time would constitute a material breach or default, or permit termination, modification, or acceleration, under the agreement; and (C) no party has repudiated any material provision of the agreement.
(q) Notes and Accounts Receivable. All notes and accounts receivable of Target and its Subsidiaries are reflected properly on their books and records, are valid receivables subject to no setoffs or counterclaims, are current and collectible, and will be collected in accordance with their terms at their recorded amounts, subject only to the reserve for bad debts set forth on the face of the Most Recent Balance Sheet (rather than in any notes thereto) as adjusted for operations and transactions through the Closing Date in accordance with the past custom and practice of Target and its Subsidiaries.
(r) Powers of Attorney. To the Knowledge of any Target Stockholder and the directors and officers of Target and its Subsidiaries, there are no material outstanding powers of attorney executed on behalf of Target or any of its Subsidiaries.
(s) Insurance. §3(s) of the Disclosure Schedule sets forth the following information with respect to each material insurance policy (including policies providing property, casualty, liability, and workers’ compensation coverage and bond and surety arrangements) with respect to which Target or any of its Subsidiaries is a party, a named insured, or otherwise the beneficiary of coverage:
(i) the name, address, and telephone number of the agent;
(ii) the name of the insurer, the name of the policyholder, and the name of each covered insured;
(iii) the policy number and the period of coverage;
(iv) the scope (including an indication of whether the coverage is on a claims made, occurrence, or other basis) and amount (including a description of how deductibles and ceilings are calculated and operate) of coverage; and
(v) a description of any retroactive premium adjustments or other material loss-sharing arrangements.
With respect to each such insurance policy: (A) the policy is legal, valid, binding, enforceable, and in full force and effect in all material respects; (B) neither Target, nor any of its Subsidiaries, nor any other party to the policy is in material breach or default (including with respect to the payment of premiums or the giving of notices), and no event has occurred that, with notice or the lapse of time, would constitute such a material breach or default, or permit termination, modification, or acceleration, under the policy; and (C) no party to the policy has repudiated any material provision thereof. §3(s) of the Disclosure Schedule describes any material self-insurance arrangements affecting Target or any of its Subsidiaries.
(t) Litigation. §3(t) of the Disclosure Schedule sets forth each instance in which Target or any of its Subsidiaries is or, at any time during the three (3) years prior to the date of this Agreement, was (i) subject to any outstanding injunction, judgment, order, decree, ruling, or charge or (ii) a party or, to the Knowledge of any Target Stockholder and the directors and officers of Target and its Subsidiaries, threatened to be made a party to any action, suit, proceeding, hearing, or investigation of, in, or before (or that could come before) any court or quasi-judicial or administrative agency of any federal, state, local, or non-U.S. jurisdiction or before (or that could come before) any arbitrator.
(u) Product Warranty. Substantially all of the products manufactured, sold, leased, and delivered by Target and its Subsidiaries have conformed in all material respects with all applicable contractual commitments and all express and implied warranties, and neither Target nor any of its Subsidiaries has any material liability (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) for replacement or repair thereof or other damages in connection therewith, subject only to the reserve for product warranty claims set forth on the face of the Most Recent Balance Sheet (rather than in any notes thereto) as adjusted for operations and transactions through the Closing Date in accordance with the past custom and practice of Target and its Subsidiaries. Substantially all of the products manufactured, sold, leased, and delivered by Target and its Subsidiaries are subject to standard terms and conditions of sale or lease. §4(u) of the Disclosure Schedule includes copies of the standard terms and conditions of sale or lease for Target and each of its Subsidiaries (containing applicable guaranty, warranty, and indemnity provisions).
(v) Product Liability. Neither Target nor any of its Subsidiaries has any material liability (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) arising out of any injury to individuals or property as a result of the ownership, possession, or use of any product manufactured, sold, leased, or delivered by Target or any of its Subsidiaries.
(w) Employees. To the Knowledge of any Target Stockholder and the directors and officers of Target and its Subsidiaries, no executive, key employee, or significant group of employees plans to terminate employment with Target or any of its Subsidiaries during the next 12 months. Neither Target nor any of its Subsidiaries is a party to or bound by any collective bargaining agreement, nor has any of them experienced any strike or material claim of unfair labor practices or other collective bargaining dispute within the past [3] years. To the Knowledge of any Target Stockholders and the directors and officers of Target and its Subsidiaries, there is no labor organizational effort presently being made or threatened by or on behalf of any labor union with respect to employees of Target or any of its Subsidiaries and no such effort has occurred within the past [3] years. [With respect to this transaction, any notice required under any law or collective bargaining agreement to any employee representative has been or prior to the Closing Date will be given, and all bargaining obligations with any employee representative have been or prior to the Closing Date will be satisfied.] [Within the past 3 years], neither Target nor any of its Subsidiaries has implemented any plant closing or layoff of employees requiring notice under the WARN Act. Each of Target and its Subsidiaries has adequately investigated all sexual harassment allegations of which it had Knowledge within the past [3] years. With respect to each such allegation, each of Target and its Subsidiaries has taken all corrective action required under applicable Law.
(x) Employee Benefits.
(i) §3(x)(i) of the Disclosure Schedule lists each Employee Benefit Plan that Target or any of its Subsidiaries maintains or to which Target or any of its Subsidiaries contributes or has any obligation to contribute, or with respect to which Target or any of its Subsidiaries has any liability.
(A) 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 material respects with the applicable requirements of ERISA, the Code, and other applicable laws.
(B) All required reports and descriptions (including Form 5500 annual reports, summary annual reports, and summary plan descriptions) have been timely filed and/or distributed in accordance with the applicable requirements of ERISA and the Code with respect to each such Employee Benefit Plan. The requirements of COBRA have been met in all material respects with respect to each such Employee Benefit Plan and each Employee Benefit Plan maintained by an ERISA Affiliate that is an Employee Welfare Benefit Plan subject to COBRA.
(C) All contributions (including all employer contributions and employee salary reduction contributions) that are due have been made within the time periods prescribed by ERISA and the Code to each such Employee Benefit Plan that is an Employee Pension Benefit Plan and all contributions for any period ending on or before the Closing Date that are not yet due have been made to each such Employee Pension Benefit Plan or accrued in accordance with the past custom and practice of Target and its Subsidiaries. All premiums or other payments for all periods ending on or before the Closing Date have been paid with respect to each such Employee Benefit Plan that is an Employee Welfare Benefit Plan.
(D) Each such Employee Benefit Plan that is intended to meet the requirements of a ‘‘qualified plan’’ under Code §401(a) has received a determination from the Internal Revenue Service that such Employee Benefit Plan is so qualified, and Target Stockholders are not aware of any facts or circumstances that would reasonably be expected to adversely affect the qualified status of any such Employee Benefit Plan.
(E) There have been no Prohibited Transactions with respect to any such Employee Benefit Plan or any Employee Benefit Plan maintained by an ERISA Affiliate. No Fiduciary has any liability for material breach of fiduciary duty or any other material failure to act or comply in connection with the administration or investment of the assets of any such Employee Benefit Plan. 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 or, to the Knowledge of any Target Stockholder and the directors and officers of Target and its Subsidiaries, threatened.
(F) Target has delivered to Buyer correct and complete copies of the plan documents and summary plan descriptions, the most recent determination letter received from the Internal Revenue Service, the most recent annual report (Form 5500, with all applicable attachments), and all related trust agreements, insurance contracts, and other funding arrangements that implement each such Employee Benefit Plan.
Alternative 1—add the following paragraph if there are No Defined Benefit Plans:
[(ii) Neither Target, nor any of its Subsidiaries, nor any ERISA Affiliate contributes to, has any obligation to contribute to, or has any material Liability under or with respect 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, or any ERISA Affiliate maintains, to which any of them contributes or has any obligation to contribute, or with respect to which any of them has any material liability or potential liability:
(A) No such Employee Benefit Plan that is an Employee Pension Benefit Plan (other than any Multiemployer Plan) has been completely or partially terminated or been the subject of a Reportable Event as to which notices would be required to be filed with the PBGC. No proceeding by the PBGC to terminate any such Employee Pension Benefit Plan (other than any Multiemployer Plan) has been instituted or, to the Knowledge of any Target Stockholder and the directors and officers of Target and its Subsidiaries, threatened. The market value of assets under each such Employee Benefit Plan that is an Employee Pension Benefit Plan (other than any Multiemployer Plan) equals or exceeds the present value of all vested and non-vested liabilities thereunder (determined in accordance with then current funding assumptions).
(B) Neither Target nor any of its Subsidiaries has incurred any material liability to the PBGC (other than with respect to PBGC premium payments not yet due) or otherwise under Title IV of ERISA or under the Code with respect to any such Employee Benefit Plan that is an Employee Pension Benefit Plan.]
(iii) Neither Target, nor any of its Subsidiaries, and any ERISA Affiliate contributes to, has any obligation to contribute to, or has any material liability (including withdrawal liability as defined in ERISA §4201) under or with respect to any Multiemployer Plan.
(iv) Neither Target nor any of its Subsidiaries maintains, contributes to or has an obligation to contribute to, or has any material liability or potential liability with respect to, any Employee Welfare Benefit Plan or other arrangement providing health or life insurance or other welfare-type benefits for current or future retired or terminated employees (or any spouse or other dependent thereof) of Target or any of its Subsidiaries other than in accordance with COBRA.
(v) The consummation of the transactions contemplated by this Agreement will not accelerate the time of the payment or vesting of, or increase the amount of, or result in the forfeiture of compensation or benefits under, any Employee Benefit Plan.
(vi) §3(x)(v) of the Disclosure Schedule lists each written agreement, contract, or other arrangement—whether or not an Employee Benefit Plan (collectively a ‘‘Plan’’)—to which Target or any of its Subsidiaries is a party that, to the Knowledge of Sellers or any officer of Target or any of the Subsidiaries, is a ‘‘nonqualified deferred compensation plan’’ subject to Code §409A. [Each Plan has been maintained in good faith compliance with Code §409A and the regulations thereunder and no amounts under any such Plan is or has been subject to the interest and additional tax set forth under Code §409A(a)(1)(B).] Neither Target nor any of its Subsidiaries has any actual or potential obligation to reimburse or otherwise ‘‘gross-up’’ any Person for the interest or additional tax set forth under Code §409A(a)(1)(B).
(y) Guaranties. Neither Target nor any of its Subsidiaries is a guarantor or otherwise is responsible for any liability or obligation (including indebtedness) of any other Person.
(z) Environmental, Health, and Safety Matters.
(i) Each of Target and its Subsidiaries has for the past 5 years complied and is in compliance, in each case in all material respects, with all Environmental, Health, and Safety Requirements.
(ii) Without limiting the generality of the foregoing, each of Target and its Subsidiaries has obtained, has for the past 5 years complied, and is in compliance with, in each case in all material respects, all material permits, licenses and other authorizations that are required pursuant to Environmental, Health, and Safety Requirements for the occupation of its facilities and the operation of its business.
(iii) Neither Target nor any of its Subsidiaries has received any written notice, report, or other information regarding any actual or alleged material violation of Environmental, Health, and Safety Requirements, or any material liabilities or potential material liabilities, including any material investigatory, remedial, or corrective obligations, relating to any of them, their business, or their past or current facilities arising under Environmental, Health, and Safety Requirements.
(iv) Neither Target nor any of its Subsidiaries has treated, stored, disposed of, arranged for or permitted the disposal of, transported, handled, manufactured, distributed, exposed any person to, or released any substance, including without limitation any hazardous substance, or owned or operated any property or facility which is or has been contaminated by any such substance so as to give rise to any current or future material liabilities, including any material liability for fines, penalties, response costs, corrective action costs, personal injury, property damage, natural resources damages, or attorneys’ fees, pursuant to the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (‘‘CERCLA’’), or the Solid Waste Disposal Act, as amended (‘‘SWDA’’), or any other Environmental, Health, and Safety Requirements.
(v) Neither Target nor any of its Subsidiaries has designed, manufactured, sold, marketed, installed, repaired, or distributed products or other items containing asbestos, and none of such entities (or Buyer as a result of the transactions that are the subject of this Agreement) is or will become subject to any liabilities with respect to the presence of asbestos in any product or item or in or upon any property, premises, or facility.
(vi) Neither Target nor any of its Subsidiaries has assumed, undertaken, provided an indemnity with respect to, or otherwise become subject to, any Liability, including without limitation any obligation for corrective or remedial action, of any other Person relating to Environmental, Health, and Safety Requirements.
(vii) Target and its Subsidiaries have furnished to Buyer all material environmental audits, reports, and other material environmental documents relating to their past or current properties, facilities, or operations which are in their possession, custody, or under their reasonable control.
(aa) IT Assets. None of the computer software, computer hardware (whether general or special purpose), telecommunications capabilities (including all voice, data and video networks) and other similar or related items of automated, computerized, and/or software systems and any other networks or systems and related services that are used by or relied on by Target or any of its Subsidiaries in the conduct of its or their business (collectively, the “IT Systems”) have experienced bugs, failures, breakdowns, or continued substandard performance in the past twelve (12) months that has caused any substantial disruption or interruption in or to the use of any such IT Systems or data by Target or its Subsidiaries. The IT Systems are sufficient for the needs of the businesses of Target and its Subsidiaries, including as to capacity, scalability, and ability to process current and anticipated peak volumes in a timely manner.
(bb) Certain Business Relationships with Target and Its Subsidiaries. Neither Target Stockholders nor any of their Affiliates, Target Stockholders’ directors, officers, employees, and shareholders and Target’s and its Subsidiaries’ directors, officers, employees, and shareholders has been involved in any material business arrangement or relationship with Target or any of its Subsidiaries within the past 12 months, and neither Target Stockholders nor any of their Affiliates, Target Stockholders’ directors, officers, employees, and shareholders and Target’s and its Subsidiaries’ directors, officers, employees, and shareholders own any material asset, tangible or intangible, that is used in the business of Target or any of its Subsidiaries.
(cc) Disclosure. The representations and warranties contained in this §3 do not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements and information contained in this §3 not misleading.
(dd) Customers and Suppliers.
(i) §3(dd) of the Disclosure Schedule lists the ___________ largest customers of Target (on a consolidated basis) for each of the 2 most recent fiscal years and sets forth opposite the name of each such customer the percentage of consolidated net sales attributable to such customer. §3(dd) of the Disclosure Schedule also lists any additional current customers that Target anticipates shall be among the _________ largest customers for the current fiscal year.
(ii) Since the date of the Most Recent Balance Sheet, no [material] supplier of Target or any of its Subsidiaries has indicated [in writing] that it shall stop, or [materially] decrease the rate of, supplying materials, products or services to Target or any of its Subsidiaries, and no customer listed on §3(dd) of the Disclosure Schedule has indicated [in writing] that it shall stop, or [materially] decrease the rate of, buying materials, products or services from Target or any of its Subsidiaries.
(ee) Data Privacy and Security. Target's and its Subsidiaries' respective businesses have complied with and, as presently conducted [and as presently proposed to be conducted], are in compliance with, all Data Laws except, in each case, to the extent that a failure to comply would not have a Material Adverse Effect. Target and its Subsidiaries have complied with, and are presently in compliance with, its and their respective policies applicable to data privacy, data security, and/or personal information except, in each case, to the extent that a failure to comply would not have a Material Adverse Effect. Neither Target nor any of its Subsidiaries has experienced any incident in which personal information or other sensitive data was or may have been stolen or improperly accessed, acquired, destroyed, damaged, disclosed, corrupted, or altered, and neither Target nor any of its Subsidiaries is aware of any facts suggesting the likelihood of the foregoing, including without limitation, any breach of security or receipt of any notices or complaints from any Person regarding personal information or other data.
(ff) 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(dd) of the Disclosure Schedule.
(gg) Disclaimer of Other Representations and Warranties. Buyer, on its own behalf and on behalf of its Affiliates, 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 any Target Stockholder or 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 §2 of the Agreement with Target Stockholders or in this §3; provided, however, that nothing herein or elsewhere in this Agreement will limit any remedy Buyer may have for Fraud [or aiding and abetting Fraud] committed by any Target Stockholder, Target, or any of their respective officers, directors, employees, agents, or representatives, whether or not such Fraud [or aiding and abetting Fraud] relates to a representation made in a written agreement among the Parties. 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 (and to Target Stockholders for purposes of the Agreement with Target Stockholders) 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. Buyer need not give any notice to, make any filing with, or obtain any authorization, consent, or approval of any government or governmental agency in order to consummate the transactions contemplated by this Agreement. 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, 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 for which Target could become liable or obligated.
§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 §6 below).
(b) Notices and Consents. Target will give (and will cause each of its Subsidiaries to give) any notices to third parties, and Target will use its reasonable best efforts (and will cause each of its Subsidiaries to use its reasonable best efforts) to obtain any third-party consents referred to in §3(c) above, the Lease Consents, and the items set forth in §5(b) of the Disclosure Schedule. Each of the Parties will (and Target will cause each of its 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 will cause each of its 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 will cause each of its Subsidiaries to use its reasonable best efforts to obtain) a waiver from the applicable waiting period, and will make (and Target will cause each of its Subsidiaries to make) any further filings pursuant thereto that may be necessary[, proper, or advisable] in connection therewith.
(c) Union Assignment/Assumption Agreement(s). Target will use its reasonable best efforts (and will cause each of its Subsidiaries to use its reasonable best efforts) to procure enforceable agreements from each union that is party to a collective bargaining agreement being assumed by Buyer under this Agreement, pursuant to which such union agrees to the assignment to and assumption by Buyer of such collective bargaining agreement and to be bound itself by such collective bargaining agreement as of and after the Closing.
(d) Operation of Business. Target will not (and will not cause or permit any of its Subsidiaries 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 (and will not cause or permit any of its Subsidiaries to) (i) declare, set aside, or pay any dividend or make any distribution with respect to its capital stock or redeem, purchase, or otherwise acquire any of its capital stock, (ii) pay any amount to any third party with respect to any liability or obligation (including any costs and expenses Target has incurred or may incur in connection with this Agreement and the transactions contemplated hereby) that would not constitute an Assumed Liability if in existence as of the Closing, (iii) ______________, or (iv) otherwise engage in any practice, take any action, or enter into any transaction of the sort described in §3(h) above.
(e) Preservation of Business. Target will keep (and will cause each of its Subsidiaries to keep) its business and properties substantially intact, including its present operations, physical facilities, working conditions, insurance policies, and relationships with lessors, licensors, suppliers, customers, and employees.
(f) Full Access. Target will permit (and will cause each of its Subsidiaries to permit) representatives of Buyer (including legal counsel and accountants) to have full access at all reasonable times, and in a manner so as not to interfere with the normal business operations of Target and its Subsidiaries, to all premises, properties, personnel, books, records (including Tax records), contracts, and documents of or pertaining to Target and each of its Subsidiaries. Buyer will treat and hold as such any Confidential Information it receives from any Target Stockholder, Target, and its Subsidiaries in the course of the reviews contemplated by this §5(f), 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 Stockholders, Target, and its Subsidiaries all tangible embodiments (and all copies) of the Confidential Information that are in its possession.
(g) Notice of Developments. 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 and §4 above. No disclosure by any Party pursuant to this §5(g), however, shall be deemed to amend or supplement the Disclosure Schedule or to prevent or cure any misrepresentation, breach of warranty, or breach of covenant.
(h) Exclusivity. Target will not (and Target will not cause or permit any of its Subsidiaries to) (i) solicit, initiate, or encourage the submission of any proposal or offer from any Person relating to the acquisition of any capital stock or other voting securities, or any substantial portion of the assets, of Target or any of its Subsidiaries (including any acquisition structured as a merger, consolidation, or share exchange) or (ii) 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.
(i) Maintenance of Real Property. Target and its Subsidiaries shall maintain the Real Property, including all of the Improvements, in substantially the same condition as existed on the date of this Agreement, ordinary wear and tear excepted, and shall not demolish or remove any of the existing Improvements, or erect new improvements on the Real Property or any portion thereof, without the prior written consent of Buyer.
(j) Leases. Neither Target nor any of its Subsidiaries shall amend, modify, extend, renew or terminate any Lease, nor shall Target or any of its Subsidiaries enter into any new lease, sublease, license or other agreement for the use or occupancy of any Real Property requiring payments in excess of $__________ annually as averaged over the term thereof, without the prior written consent of Buyer.
(k) Title Insurance and Surveys. Target and its Subsidiaries shall use reasonable best efforts to assist Buyer in obtaining the Title Commitments, Title Policies and Surveys in form and substance as set out in §6 of this Agreement, within the time periods set forth therein. Target and its Subsidiaries shall provide the Title Company with any affidavits, undertakings, memoranda or other assurances reasonably requested by the Title Company to issue the Title Policies.
§6. 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 Sellers 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) Target and its Subsidiaries shall have procured all of the third-party consents specified in §5(b) above and all assignment and assumption agreements specified in §5(c) above;
(iv) no action, suit, or proceeding shall be pending before (or that could come before) any court or quasi-judicial or administrative agency of any federal, state, local, or non-U.S. jurisdiction or before (or that could come before) any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, (C) adversely affect the right of Buyer to own the Acquired Assets, to operate the former business of Target, and to control Target’s Subsidiaries, or (D) materially and adversely affect the right of any of Target’s Subsidiaries to own its assets and to operate its business (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(v) Target shall have delivered to Buyer a certificate to the effect that each of the conditions specified above in §6(a)(i)–(iv) is satisfied in all respects;
(vi) all applicable waiting periods (and any extensions thereof) under the Hart-Scott-Rodino Act shall have expired or otherwise been terminated and Target, its Subsidiaries, and Buyer shall have received all [other] material authorizations, consents, and approvals of governments and governmental agencies referred to in §3(c) and §4(c) above;
(vii) the relevant parties shall have entered into side agreements in form and substance as set forth in Exhibits H-1 through H-__________ attached hereto and the same shall be in full force and effect;
(viii) Buyer shall have received from counsel to Target an opinion in form and substance as set forth in Exhibit I attached hereto, addressed to Buyer, and dated as of the Closing Date;
(ix) Buyer shall have received the resignations, effective as of the Closing, of each director and officer of Target’s Subsidiaries;
(x) 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;
(xi) Buyer shall have obtained, no later than 10 days prior to the Closing Date, a commitment for an ALTA Owner’s Title Insurance Policy 2006 Form or other form of policy reasonably acceptable to Buyer for each Owned Real Property (other than Owned Real Property located outside the United States) and each Leased Real Property identified by Buyer (the ‘‘Material Leased Real Property’’), issued by a title insurance company satisfactory to Buyer (the ‘‘Title Company’’), together with a copy of all documents referenced therein (the ‘‘Title Commitments’’);
(xii) at Closing, Buyer shall have obtained title insurance policies from the Title Company (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 Owned Real Property or Buyer’s legal, valid, binding and enforceable leasehold interest in each Material Leased Real Property (as the case may be) as of the Closing Date (including all recorded appurtenant easements insured as separate legal parcels) with gap coverage from Target through the date of recording, subject only to Permitted Encumbrances, in such amount as Buyer reasonably determines to be the value of the Real Property insured thereunder and which shall include all requested endorsements (the ‘‘Title Policies’’); and each of the Title Policies [shall have the creditor’s rights exception deleted, and] shall include an extended coverage endorsement (insuring over the general or standard exceptions), ALTA Form 3.1 zoning (with parking and loading docks) and all other endorsements reasonably requested by Buyer, in form and substance reasonably satisfactory to Buyer (provided that Target and Buyer shall share equally all fees, costs and expenses with respect to the Title Commitments and Title Policies);
(xiii) with respect to any Owned Real Property and Material Leased Real Property located outside the United States, each of Target and its Subsidiaries, at Target’s cost and expense, shall provide Buyer with an equivalent form of title assurance in accordance with local custom reasonably satisfactory to Buyer for each parcel of such Owned Real Property and Material Leased Real Property;
(xiv) Buyer shall have obtained, no later than 10 days prior to the Closing, a survey for each Owned Real Property and Material Leased Real Property, dated no earlier than the date of this Agreement, prepared by a surveyor licensed in the jurisdiction where the property is located, reasonably satisfactory to Buyer, and conforming to 2011 ALTA/ACSM Minimum Detail Requirements for Land Title Surveys, including Table A Items Nos. 1, 2, 3, 4, 6, 7(a), 7(b)(1), 7(c), 8, 9, 10, 11(b), 13, 14, 15 and 16, and such other standards as the Title Company and Buyer reasonably require as a condition to the removal of any survey exceptions from the Title Policies, and certified to Buyer, Buyer’s lender and the Title Company, in a form reasonably satisfactory to each of such parties (the ‘‘Surveys’’); and the Surveys shall not disclose any encroachment from or onto any of the Real Property or any portion thereof or any other survey defect that has not been cured or insured over to Buyer’s reasonable satisfaction prior to the Closing (provided that Target and Buyer shall share equally all fees, costs and expenses with respect to the Surveys);
(xv) Target and its Subsidiaries shall have obtained and delivered to Buyer a written consent for the assignment of each of the Leases, and, if requested by Buyer’s lender in connection with any Material Leased Real Property, a waiver of landlord liens, collateral assignment of lease or leasehold mortgage from the landlord or other party whose consent thereto is required under such Lease (the ‘‘Lease Consents’’), in form and substance satisfactory to Buyer and Buyer’s lender;
[(xvi) Target and its Subsidiaries shall have obtained and delivered to Buyer an estoppel certificate with respect to each of the Leases, dated no more than 30 days prior to the Closing Date, from the other party to such Lease, in form and substance satisfactory to Buyer (the ‘‘Estoppel Certificates’’);]
(xvii) Target shall deliver to Buyer a non-foreign affidavit dated as of the Closing Date, sworn under penalty of perjury and in form and substance required under the Treasury Regulations issued pursuant to Code §1445 stating that Target is not a ‘‘foreign person’’ as defined in Code §1445 (the ‘‘FIRPTA Affidavit’’);
(xviii) no damage or destruction or other change has occurred with respect to any of the Real Property or any portion thereof that, individually or in the aggregate, would materially impair the use or occupancy of the Real Property or the operation of the business of Target and its Subsidiaries;
(xix) Each of ____________, ____________, ____________ and ___________ shall have entered into employment and equity agreements with Buyer on terms reasonably satisfactory to Buyer, and such agreements shall be in full force and effect as of the Closing;
(xx) Target shall have delivered to Buyer copies of the certificate of incorporation of each Target Stockholder, Target, and Target Subsidiary certified on or soon before the Closing Date by the Secretary of State (or comparable officer) of the jurisdiction of each such Person’s incorporation;
(xxi) Target shall have delivered to Buyer copies of the certificate of good standing of each Seller, Target, and Target Subsidiary issued on or soon before the Closing Date by the Secretary of State (or comparable officer) of the jurisdiction of each such Person’s organization [and of each jurisdiction in which each such Person is qualified to do business];
(xxii) Target shall have delivered to Buyer a certificate of the secretary or an assistant secretary of each Target Stockholder, dated the Closing Date, in form and substance reasonably satisfactory to Buyer, as to: (i) no amendments to the certificate of incorporation of such Seller since the date specified in clause (xx) above; (ii) the bylaws of such Target Stockholder; (iii) the resolutions of the board of directors (or a duly authorized committee thereof) of such Target Stockholder authorizing the execution, delivery, and performance of this Agreement and the transactions contemplated hereby; and (iv) incumbency and signatures of the officers of such Target Stockholder executing this Agreement or any other agreement contemplated by this Agreement; and
(xxiii) Target shall have delivered to Buyer a certificate of the secretary or an assistant secretary of each Target and Target Subsidiary, dated the Closing Date, in form and substance reasonably satisfactory to Buyer, as to: (i) no amendments to the certificate of incorporation of such Person since the date specified in clause (xx) above; (ii) the bylaws of such Person; and (iii) any resolutions of the board of directors (or a duly authorized committee thereof) of such Person relating to this Agreement and the transactions contemplated hereby.
Buyer may waive any condition specified in this §6(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 the term ‘‘material,’’ or contain terms such as ‘‘Material Adverse Effect’’ or ‘‘Material Adverse Change,’’ in which case Buyer 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) no action, suit, or proceeding shall be pending before any court or quasi-judicial or administrative agency of any federal, state, local, or non-U.S. jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement or (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(iv) Buyer shall have delivered to Target a certificate to the effect that each of the conditions specified above in §6(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, its Subsidiaries, and Buyer shall have received all [other] material 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 H-1 through H-__________ 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 J 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 §6(b) if it executes a writing so stating at or prior to the Closing.
§7. 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 (A) in the event Target has breached any material representation, warranty, or covenant contained in this Agreement 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 §6(a) hereof (unless the failure results primarily from Buyer itself breaching any representation, warranty, or covenant contained in this Agreement); and
(iii) 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 §6(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 §7(a) above, all rights and obligations of the Parties hereunder shall terminate without any liability of any Party to any other Party (except for any liability of any Party then in breach); provided, however, that the confidentiality provisions contained in §5(f) above shall survive termination.
§8. Miscellaneous.
(a) Survival of Representations and Warranties. All of the representations and warranties of the Parties contained in this Agreement shall survive the Closing hereunder as and to the extent provided in the Agreement with Target Stockholders set forth in Exhibit A.
(b) 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).
(c) 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.
(d) 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.]
(e) 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 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 Buyer nonetheless shall remain responsible for the performance of all of its obligations hereunder).
(f) 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.
(g) 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.
(h) 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:	
		
If to Process Agent:	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.
(i) 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 ______________.
(j) 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 the 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.
(k) 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.
(l) Expenses. Each Buyer, Target Stockholder, Target, and Target Subsidiary 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 Target Stockholders will (subject to the following further proviso) also bear the costs and expenses of Target and its Subsidiaries (including all of their legal fees and expenses) in connection with this Agreement and the transactions contemplated hereby in the event that the transactions contemplated by this Agreement are consummated to the extent such costs and expenses (other than those to which the following proviso applies) exceed $___________; and provided further that 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 borne 50% by Buyer and 50% by Target Stockholders.
(m) 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.
(n) Incorporation of Exhibits and Schedules. The Exhibits and Schedules identified in this Agreement are incorporated herein by reference and made a part hereof.
(o) Tax Matters. [Any agreement between Target and any of its Subsidiaries regarding allocation or payment of Taxes or amounts in lieu of Taxes shall be deemed terminated at and as of the Closing. 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. Buyer and Target will (A) cooperate in the preparation and filing of an election under Code §338(h)(10) with respect to the sale of the stock of the 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.]
(p) Employee Benefits Matters. Buyer will offer employment to all employees of Target and its Subsidiaries, effective as of and contingent upon the Closing. [Buyer will adopt and assume at and as of the Closing each of the Employee Benefit Plans that Target maintains and each trust, insurance contract, annuity contract, or other funding arrangement that Target has established with respect thereto. 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.)] Nothing contained herein, express or implied, shall be construed to (i) limit in any way Buyer’s ability to amend or terminate any benefit plan, policy, or arrangement, (ii) constitute an amendment to any benefit plan, policy, or arrangement, or (iii) create any third-party beneficiaries. The covenants in this §8(p) shall expire on the date which is [1 year] after the Closing Date.
(q) 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.
(r) 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.
[(s) 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 many 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: __________________________