ASSET PURCHASE AGREEMENT
BETWEEN
_________
AND
____________________
________,____ _____

TABLE OF CONTENTS
§1. Definitions	4
§2. Basic Transaction	11
(a) Purchase and Sale of Assets	11
(b) Assumption of Liabilities	11
(c) Purchase Price	12
(d) Cash Distribution to Target	13
(e) The Closing	13
(f) Deliveries at the Closing	13
(g) Allocation	13
§3. Target’s Representations and Warranties	14
(a) Organization of Target	14
(b) Authorization of Transaction	14
(c) Non-contravention	15
(d) Brokers’ Fees	15
(e) Title to Tangible Assets	15
(f) Subsidiaries	15
(g) Financial Statements	16
(h) Events Subsequent to Most Recent Fiscal Month End	16
(i) Legal Compliance	16
(j) Tax Matters	16
(k) Real Property	17
(l) Intellectual Property	18
(m) Contracts	18
(n) Powers of Attorney	18
(o) Litigation	18
(p) Employee Benefits	18
(q) Environmental Matters	19
(r) Certain Business Relationships with Target and Its Subsidiaries	20
(s) Investment	20
(t) Disclaimer of Other Representations and Warranties	20
§4. Buyer’s Representations and Warranties	21
(a) Organization of Buyer	21
(b) Authorization of Transaction	21
(c) Non-contravention	21
(d) Brokers’ Fees	22
§5. Pre-Closing Covenants	22
(a) General	22
(b) Notices and Consents	22
(c) Operation of Business	22
(d) Full Access	23
(e) Notice of Developments	23
(f) Exclusivity	23
(g) Title Insurance and Surveys	24
§6. Conditions to Obligation to Close	24
(a) Conditions to Buyer’s Obligation	24
(b) Conditions to Target’s Obligation	25
§7. Termination	26
(a) Termination of Agreement	26
(b) Effect of Termination	27
§8. Miscellaneous	27
(a) Survival of Representations and Warranties	27
(b) Press Releases and Public Announcements	27
(c) No Third-Party Beneficiaries	27
(d) Entire Agreement	28
(e) Succession and Assignment	28
(f) Counterparts	28
(g) Headings	28
(h) Notices	28
(i) Governing Law	28
(j) Amendments and Waivers	28
(k) Severability	28
(l) Expenses	29
(m) Construction	29
(n) Incorporation of Exhibits and Schedules	29
(o) Tax Matters	29
(p) Employee Benefits Matters	30
(q) Bulk Transfer Laws	30
(r) Tax Disclosure Authorization	31

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

[EXHIBITS B THROUGH H AND THE DISCLOSURE SCHEDULE HAVE BEEN OMITTED FROM THIS SAMPLE ACQUISITION AGREEMENT 2302]

ASSET PURCHASE AGREEMENT 

This Asset Purchase Agreement (this ‘‘Agreement’’) is entered into on [as of] ________ _____, ______, by and between ___________, a ___________ corporation (‘‘Buyer’’) and ___________, a ___________ corporation (‘‘Target’’). Buyer and Target are referred to collectively herein as the ‘‘Parties.’’
This Agreement contemplates a transaction in which Buyer will purchase substantially all of the assets (and assume substantially all of the liabilities) of 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 of the right, title, and interest that Target possesses and has the right to transfer in and to all of its assets, including all of its (a) Owned Real Property and Leased Real Property, (b) tangible personal property (such as machinery, equipment, inventories of raw materials and supplies, manufactured and purchased parts, goods in process and finished goods, furniture, automobiles, trucks, tractors, trailers, tools, jigs, and dies), (c) intellectual property, goodwill associated therewith, licenses and sublicenses granted and obtained with respect thereto, and rights thereunder, remedies against past, present, and future infringements thereof, and rights to protection of past, present, and future interests therein under the laws of all jurisdictions, (d) leases, subleases, and rights thereunder, (e) agreements, contracts, indentures, mortgages, instruments, Liens, guaranties, other similar arrangements, and rights thereunder, (f) accounts, notes, and other receivables, (g) securities (including the capital stock in 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 up to an amount equal to Target’s good faith estimate of the aggregate liability of Target’s Subsidiaries for unpaid Income Taxes as of the Closing (computed in accordance with the past custom and practice of Target and its Subsidiaries in filing their Income Tax Returns), and (l) [rights in and with respect to the assets associated with its Employee Benefit Plans]; provided, however, that the Acquired Assets shall not include (i) the corporate charter, qualifications to conduct business as a foreign corporation, arrangements with registered agents relating to foreign qualifications, taxpayer and other identification numbers, seals, minute books, stock transfer books, blank stock certificates, and other documents relating to the organization, maintenance, and existence of Target as a corporation, (ii) any Cash in excess of the amount referred to in clause (k) of this definition, (iii) any of the rights of Target under this Agreement (or under any side agreement between Target on the one hand and Buyer on the other hand entered into on or after the date of this Agreement), or (iv) any right with respect to Attorney-Client Communications including Law Firm’s records relating to or affecting the Transaction, and any attorney-client privilege, expectation of client confidence, or any other right to any evidentiary privilege with respect thereto.
‘‘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 all liabilities and obligations of Target (whether known or unknown, whether asserted or unasserted, whether absolute or contingent, whether accrued or unaccrued, whether liquidated or unliquidated, and whether due or to become due), including (a) all liabilities of Target for unpaid Taxes with respect to periods prior to the Closing, but not Target’s unpaid Income Taxes, (b) all liabilities of Target for transfer, sales, use, and other non-Income Taxes arising in connection with the consummation of the transactions contemplated hereby, (c) all liabilities of Target for the unpaid Taxes of Persons other than Target (but including Target’s liability for the unpaid Taxes of Target’s 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, (d) all liabilities of Target for costs and expenses (including legal fees and expenses) Target and Target Stockholders have incurred in connection with this Agreement and the transactions contemplated hereby, (e) [all liabilities and obligations of Target under its Employee Benefit Plans], (f) all liabilities and obligations of Target under the agreements, contracts, leases, licenses, and other arrangements referred to in the definition of Acquired Assets, (g) all liabilities and obligations of or relating to Target with respect to environmental, health or safety matters, including without limitation those arising under Environmental Requirements, (h) all obligations 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 was serving at the request of Target as a partner, trustee, director, officer, employee, or agent of another entity (whether such indemnification is for judgments, damages, penalties, fines, costs, amounts paid in settlement, losses, expenses, or otherwise and whether such indemnification is pursuant to any statute, charter document, bylaw, agreement, or otherwise), and (i) all other liabilities and obligations of Target set forth in the Disclosure Schedule; provided, however, that the Assumed Liabilities shall not include any liability or obligation of Target under this Agreement (or under any side agreement between Target on the one hand and Buyer on the other hand entered into on or after the date of this Agreement).
“Attorney-Client Communication” means any communication occurring on or prior to Closing between Law Firm on the one hand and Target, its Subsidiaries, any Target Stockholder, or any of their respective Affiliates on the other hand that in any way relates to the Transaction, including any representation, warranty, or covenant of any party under this Agreement or any related agreement.
‘‘Buyer’’ has the meaning set forth in the preface above.
‘‘Buyer Notes’’ has the meaning set forth in §2(c) below.
‘‘Cash’’ means cash and cash equivalents (including marketable securities and short-term investments) calculated in accordance with GAAP applied on a basis consistent with the preparation of the Financial Statements.
‘‘Closing’’ has the meaning set forth in §2(e) below.
‘‘Closing Date’’ has the meaning set forth in §2(e) below.
‘‘Code’’ means the Internal Revenue Code of 1986, as amended.
‘‘Confidential Information’’ means any information concerning the business and affairs of Target and its Subsidiaries that is not already generally available to the public.
“COVID-19” means SARS-CoV-2 or COVID-19, and any evolutions thereof or related or associated epidemics, pandemic, or disease outbreaks.
‘‘Disclosure Schedule’’ has the meaning set forth in §3 below.
‘‘Employee Benefit Plan’’ means any ‘‘employee benefit plan’’ (as such term is defined in ERISA §3(3)) and any other material employee benefit plan, program or arrangement.
‘‘Employee Pension Benefit Plan’’ has the meaning set forth in ERISA §3(2).
‘‘Employee Welfare Benefit Plan’’ has the meaning set forth in ERISA §3(1).
‘‘Environmental Requirements’’ means all federal, state, local, and non-U.S. statutes, regulations, and ordinances concerning pollution or protection of the environment, including all those relating to the presence, use, production, generation, handling, transportation, treatment, storage, disposal, distribution, labeling, testing, processing, discharge, release, threatened release, control, or cleanup of any hazardous materials, substances, or wastes, as such requirements are enacted and in effect on the Closing Date. 
‘‘ERISA’’ means the Employee Retirement Income Security Act of 1974, as amended.
‘‘ERISA Affiliate’’ means each entity that is treated as a single employer with Target for purposes of Code §414.
‘‘Excess Loss Account’’ has the meaning set forth in Reg. §1.1502-19.
‘‘Financial Statements’’ has the meaning set forth in §3(g) below.
‘‘GAAP’’ means United States generally accepted accounting principles as in effect from time to time, consistently applied.
‘‘Hart-Scott-Rodino Act’’ means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.
‘‘Income Tax’’ means any federal, state, local, or non-U.S. tax based on or measured by reference to net income, including any interest, penalty, or addition thereto, whether disputed or not.
‘‘Income Tax Return’’ means any return, declaration, report, claim for refund, or information return or statement relating to Income Taxes, including any schedule or attachment thereto.
‘‘Intercompany Transaction’’ has the meaning set forth in Reg. §1.1502-13.
‘‘Knowledge’’ means actual knowledge without independent investigation.
“Law Firm” means [insert name of each law firm to be covered by §3(f) of sample acquisition agreement 2301.1 (the pro-seller agreement with target stockholders)].
‘‘Leased Real Property’’ means all leasehold or subleasehold estates and other rights to use or occupy any land, buildings, structures, improvements, fixtures or other interest in real property that is used in Target’s or its Subsidiaries’ business.
‘‘Leases’’ means all leases, subleases, licenses, concessions and other agreements (written or oral), including all amendments, extensions, renewals, guaranties, and other agreements with respect thereto, pursuant to which 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 the borrowing of money.]
‘‘Material Adverse Effect’’ or ‘‘Material Adverse Change’’ means any effect or change that would be materially adverse to the business of Target and its Subsidiaries, taken as a whole, in the long term, or to the ability of any Party to consummate timely the transactions contemplated hereby; provided that none of the following shall be deemed to constitute, and none of the following shall be taken into account in determining whether there has been, a Material Adverse Effect or Material Adverse Change: (a) any adverse change, event, development, or effect (whether short-term or long-term) arising from or relating to (1) general business or economic conditions, including such conditions related to the business of Target and its Subsidiaries, (2) national or international political or social conditions, including the engagement by the United States in hostilities, whether or not pursuant to the declaration of a national emergency or war, or the occurrence of any military or terrorist attack upon the United States, or any of its territories, possessions, or diplomatic or consular offices or upon any military installation, equipment or personnel of the United States, (3) financial, banking, or securities markets (including any disruption thereof and any decline in the price of any security or any market index), (4) changes in United States generally accepted accounting principles, (5) changes in laws, rules, regulations, orders, or other binding directives issued by any governmental entity, (6) the taking of any action contemplated by this Agreement and the other agreements contemplated hereby, or (7) any epidemic, pandemic, or disease outbreak (including the COVID-19 pandemic), or any law, regulation, statute, directive, pronouncement, or guideline issued by a governmental entity, the Centers for Disease Control and Prevention, the World Health Organization, or industry group providing for business closures, ‘‘sheltering-in-place,’’ curfews or other restrictions that relate to, or arise out of, an epidemic, pandemic, or disease outbreak (including the COVID-19 pandemic) or any change in such law, regulation, statute, directive, pronouncement, or guideline or interpretation thereof following the date of this Agreement or any material worsening of such conditions threatened or existing as of the date of this Agreement, (b) any failure to meet a forecast (whether internal or published) of revenue, earnings, cash flow, or other data for any period or any change in such a forecast, (c) any existing event, occurrence, or circumstance with respect to which Buyer has knowledge as of the date hereof and (d) any adverse change in or effect on the business of Target and its Subsidiaries that is cured by Target before the earlier of (1) the Closing Date and (2) the date on which this Agreement is terminated pursuant to §7 hereof.
‘‘Most Recent Financial Statements’’ has the meaning set forth in §3(g) below.
‘‘Most Recent Fiscal Month End’’ has the meaning set forth in §3(g) below.
‘‘Multiemployer Plan’’ has the meaning set forth in ERISA §3(37).
‘‘Ordinary Course of Business’’ means an action taken, or omitted to be taken, by any Person in the ordinary course of such Person’s business consistent with past custom and practice (including with respect to quantity and frequency); provided, that any action taken, or omitted to be taken, that relates to, or arises out of, any pandemic, epidemic, or disease outbreak shall be deemed to be in the Ordinary Course of Business.
‘‘Owned Real Property’’ means all land, together with all buildings, structures, improvements, and fixtures located thereon, and all easements and other rights and interests appurtenant thereto, owned by Target or any of its Subsidiaries and used in the business of Target and 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 Owned Real Property: (a) real estate taxes, assessments and other governmental levies, fees, or charges imposed with respect to such Owned Real Property that are (i) not due and payable as of the Closing Date or (ii) being contested by appropriate proceedings; (b) mechanics’ liens and similar liens for labor, materials, or supplies provided with respect to such Owned Real Property incurred in the Ordinary Course of Business for amounts that are (i) not delinquent and that would not, in the aggregate, have a Material Adverse Effect or (ii) being contested by appropriate proceedings; (c) zoning, building codes, and other land use laws regulating the use or occupancy of such Owned Real Property or the activities conducted thereon that are imposed by any governmental authority having jurisdiction over such Owned Real Property; (d) liens for any financing secured by such Owned Real Property that is an obligation of Target or any of its Subsidiaries that is an Assumed Liability; and (e) easements, covenants, conditions, restrictions and other similar matters affecting title to such Owned Real Property and other encroachments and title and survey defects that do not or would not materially impair the use or occupancy of such Owned Real Property in the operation of the business of Target and its Subsidiaries taken as a whole.
‘‘Person’’ means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization, any other business entity, or a governmental entity (or any department, agency, or political subdivision thereof).
‘‘Purchase Price’’ has the meaning set forth in §2(c) below.
‘‘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)(xi) 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.
“Transaction” means the negotiation, preparation, execution, and delivery of this Agreement and related agreements, and the consummation of the transactions contemplated hereby or thereby.
§2. Basic Transaction.
(a) Purchase and Sale of Assets. On and subject to the terms and conditions of this Agreement, Buyer agrees to purchase from Target, and Target agrees to sell, transfer, convey, and deliver to Buyer, all of the Acquired Assets at the Closing for the consideration specified below in this §2.
(b) Assumption of Liabilities. On and subject to the terms and conditions of this Agreement, Buyer agrees to assume and become responsible for all of the Assumed Liabilities at the Closing. Buyer will not assume or have any responsibility, however, with respect to any other obligation or liability of Target not included within the definition of Assumed Liabilities.
(c) Purchase Price. Buyer agrees to pay to Target at the Closing $___________ (the ‘‘Purchase Price’’) by delivery of (i) its promissory notes (the ‘‘Buyer Notes’’) in the form of Exhibit B attached hereto in the aggregate principal amount of $___________ and (ii) cash for the balance of the Purchase Price payable by wire transfer or delivery of other immediately available funds.
(d) Cash Distribution to Target. Immediately prior to the Closing, Target shall 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 signature pages (or their electronic counterparts), in each case, commencing at 9:00 a.m. local time on the [second] business day following the satisfaction or waiver of all conditions to the obligations of the Parties to consummate the transactions contemplated hereby (other than conditions with respect to actions the respective Parties will take at the Closing itself) or such other date, place, or time as the Parties may mutually determine (the ‘‘Closing Date’’); provided, however, that the Closing Date shall be no earlier than ________ _____, ______.
(f) Deliveries at the Closing. At the Closing, (i) Target shall deliver to Buyer the various certificates, instruments, and documents referred to in §6(a) below; (ii) Buyer will deliver to Target the various certificates, instruments, and documents referred to in §6(b) below; (iii) Target shall execute, acknowledge (if appropriate), and deliver to Buyer (A) assignments (including real property and intellectual property transfer documents) in the forms attached hereto as Exhibits 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 shall 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 the consideration specified in §2(c) above.
[(g) Allocation. Target shall prepare an allocation of the Purchase Price (and all other capitalized costs) among the Acquired Assets in accordance with Code §1060 and Treasury regulations thereunder (and any similar provision of state, local, or non-U.S. law, as appropriate), which allocation shall be binding upon Buyer. Target shall deliver such allocation to Buyer within [30] days after the Closing Date. Target and Buyer and their Affiliates shall report, act, and file Tax Returns (including, but not limited to Internal Revenue Service Form 8594) in all respects and for all purposes consistent with such allocation prepared by Target. Buyer shall timely and properly prepare, execute, file, and deliver all such documents, forms, and other information as Target may reasonably request in preparing such allocation. Neither Target nor Buyer shall take any position (whether in audits, tax returns, or otherwise) that is inconsistent with such allocation unless required to do so by applicable law.]
§3. Target’s Representations and Warranties. Target represents and warrants to Buyer that the statements contained in this §3 are correct and complete as of the date of this Agreement and will be correct and complete as of the Closing Date (as though made then and as though the Closing Date were substituted for the date of this Agreement throughout this §3), except as set forth in the disclosure schedule accompanying this Agreement and initialed by the Parties (the ‘‘Disclosure Schedule’’). The Disclosure Schedule will be arranged in paragraphs corresponding to the lettered and numbered paragraphs contained in this §3.
(a) Organization of Target. Target is a corporation duly organized, validly existing, and in good standing under the laws of the jurisdiction of its incorporation.
(b) Authorization of Transaction. Target has full power and authority (including full corporate or other entity power and authority) to execute and deliver this Agreement and to perform its obligations hereunder. Without limiting the generality of the foregoing, the board of directors of Target and Target Stockholders have duly authorized the execution, delivery, and performance of this Agreement by Target. This Agreement constitutes the valid and legally binding obligation of Target, enforceable in accordance with its terms and conditions.
(c) Non-contravention. [To the Knowledge of any Target Stockholder,] 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]. [To the Knowledge of any of Target Stockholders,] 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. None of the Subsidiaries 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 Tangible Assets. Target and its Subsidiaries have good title to, or a valid leasehold interest in, the material tangible assets they use regularly in the conduct of their business.
(f) Subsidiaries. §3(f) of the Disclosure Schedule sets forth for each 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 for 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 or other entity power and authority to carry on the business in which it is engaged and to own and use the properties owned and used by it. All of the issued and outstanding shares of capital stock of each Subsidiary of Target have been duly authorized and are validly issued, fully paid, and non-assessable. Either Target or 1 of its Subsidiaries holds of record and owns beneficially all of the outstanding shares of each 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 E 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 ________,___, __________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 and 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 and lack footnotes and other presentation items.
(h) Events Subsequent to Most Recent Fiscal Month End. Since the Most Recent Fiscal Month End, there has not been any Material Adverse Change. Without limiting the generality of the foregoing, since that date neither Target nor any of its Subsidiaries has engaged in any practice, taken any action, or entered into any transaction outside the Ordinary Course of Business the primary purpose or effect of which has been to generate or preserve Cash.
(i) Legal Compliance. To the Knowledge of any Target Stockholder, 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) of federal, state, local, and non-U.S. governments (and all agencies thereof), except where the failure to comply would not have a Material Adverse Effect.
(j) Tax Matters.
(i) Each of Target and its Subsidiaries has filed all Income Tax Returns that it was required to file, and has paid all Income Taxes shown thereon as owing, except where the failure to file Income Tax Returns or to pay Income Taxes would not have a Material Adverse Effect.
(ii) §3(j) of the Disclosure Schedule lists all 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 _____ ____, _____.
(iii) Except as set forth in §3(j)(iii) of the Disclosure Schedule, no action, suit, proceeding, or audit is pending against or with respect to Target or any of its Subsidiaries regarding Taxes.
(iv) 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.
(v) Neither Target nor any of its Subsidiaries is a party to any Income Tax allocation or sharing agreement.
[(vi) To the Knowledge of any Target Stockholder, neither Target nor any of its Subsidiaries has been a member of an Affiliated Group filing a consolidated federal Income Tax Return (other than a group the common parent of which was Target).]
(vii) Neither Target nor any of its Subsidiaries is or has been a party to any ‘‘listed transaction,’’ as defined in Code §6707A(c)(2) and Reg. §1.6011-4(b)(2).
(k) Real Property.
(i) §3(k)(i) of the Disclosure Schedule sets forth the address and description of each parcel of Owned Real Property. With respect to each parcel of Owned Real Property, and except for matters that would not have a Material Adverse Effect:
(A) 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(k)(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) there are no outstanding options, rights of first offer or rights of first refusal to purchase such Owned Real Property or any portion thereof or interest therein.
(ii) §3(k)(ii) of the Disclosure Schedule sets forth the address of each parcel of Leased Real Property, and a true and complete list of all Leases for each such parcel of Leased Real Property. Target has delivered to Buyer a true and complete copy of each Lease document.
(l) Intellectual Property. §3(l) of the Disclosure Schedule identifies each unexpired patent or registration that has been issued to 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].
(m) Contracts. §3(m) of the Disclosure Schedule lists all written contracts and other written agreements to which Target or any of its Subsidiaries is a party and the performance of which will involve consideration in excess of $___________. Target has delivered to Buyer a correct and complete copy of each contract or other agreement (as amended to date) listed in §3(m) of the Disclosure Schedule.
(n) Powers of Attorney. To the Knowledge of any Target Stockholder, there are no outstanding powers of attorney executed on behalf of Target or any of its Subsidiaries.
(o) Litigation. §3(o) of the Disclosure Schedule sets forth each instance in which Target or any of its Subsidiaries (i) is subject to any outstanding injunction, judgment, order, decree, ruling, or charge or (ii) is a party to any action, suit, proceeding, hearing, or investigation of, in, or before any court or quasi-judicial or administrative agency of any federal, state, local, or non-U.S. jurisdiction, except where the injunction, judgment, order, decree, ruling, action, suit, proceeding, hearing, or investigation would not have a Material Adverse Effect.
(p) Employee Benefits.
(i) §3(p) of the Disclosure Schedule lists each Employee Benefit Plan that Target or any of its Subsidiaries maintains, to which Target or any of its Subsidiaries contributes, or with respect to which Target or any of its Subsidiaries has any liability.
(A) To the Knowledge of any Target Stockholder, each such Employee Benefit Plan (and each related trust, insurance contract, or fund) has been maintained, funded and administered in accordance with the terms of such Employee Benefit Plan and complies in form and in operation in all respects with the applicable requirements of ERISA and the Code, except where the failure to comply would not have a Material Adverse Effect.
(B) All contributions (including all employer contributions and employee salary reduction contributions) that are due have been made to each such Employee Benefit Plan that is an Employee Pension Benefit Plan. All premiums or other payments that are due have been paid with respect to each such Employee Benefit Plan that is an Employee Welfare Benefit Plan.
(C) Each such Employee Benefit Plan that is intended to meet the requirements of a ‘‘qualified plan’’ under Code §401(a) has received a determination letter from the Internal Revenue Service to the effect that it meets the requirements of Code §401(a).
Alternative 1—add the following paragraph if there are No Defined Benefit Plans:
[(ii) Neither Target nor any of its Subsidiaries maintains, sponsors or contributes to any Employee Pension Benefit Plan that is a ‘‘defined benefit plan’’ (as defined in ERISA §(35)).]
Alternative 2—add the following paragraph if there are Defined Benefit Plans:
[(ii) With respect to each Employee Benefit Plan that Target, any of its Subsidiaries, and any ERISA Affiliate maintains, or has maintained during the prior 6 years or to which any of them contributes, or has been required to contribute during the prior 6 years:
(A) No action, suit, proceeding, hearing, or investigation with respect to the administration or the investment of the assets of any such Employee Benefit Plan (other than routine claims for benefits) is pending, except where the action, suit, proceeding, hearing, or investigation would not have a Material Adverse Effect.
(B) As of the last day of the most recent prior plan year, the market value of assets under each such Employee Benefit Plan that is an Employee Pension Benefit Plan (other than any Multiemployer Plan) equaled or exceeded the present value of liabilities thereunder (determined in accordance with then current funding assumptions).
(C) Neither Target nor any of its Subsidiaries has incurred any liability to the PBGC (other than PBGC premium payments) or otherwise under Title IV of ERISA (including any withdrawal liability) with respect to any such Employee Benefit Plan that is an Employee Pension Benefit Plan.]
(q) Environmental Matters.
(i) To the Knowledge of any Target Stockholder, Target and its Subsidiaries are in compliance with Environmental Requirements, except for such non-compliance as would not have a Material Adverse Effect.
(ii) To the Knowledge of any Target Stockholder, Target and its Subsidiaries have not received any written notice regarding any actual or alleged material violation of Environmental Requirements relating to Target or its Subsidiaries or their facilities arising under Environmental Requirements, the subject of which would have a Material Adverse Effect.
(iii) This §3(q) contains the sole and exclusive representations and warranties of Target with respect to any environmental matters, including without limitation any arising under any Environmental Requirements.
(r) Certain Business Relationships with Target and Its Subsidiaries. Neither Target Stockholders nor any of their Affiliates 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 owns any material asset, tangible or intangible, that is used in the business of Target or any of its Subsidiaries.
(s) Investment. Target (i) understands that the Buyer Notes have not been, and will not be, registered under the Securities Act, or under any state securities laws, and are being offered and sold in reliance upon federal and state exemptions for transactions not involving any public offering, (ii) is acquiring the Buyer Notes solely for its own account for investment purposes, and not with a view to the distribution thereof (except to Target Stockholders), (iii) is a sophisticated investor with knowledge and experience in business and financial matters, (iv) has received certain information concerning Buyer and has had the opportunity to obtain additional information as desired in order to evaluate the merits and the risks inherent in holding the Buyer Notes, (v) is able to bear the economic risk and lack of liquidity inherent in holding the Buyer Notes, and (vi) is an Accredited Investor for the reasons set forth in §3(s) of the Disclosure Schedule.
(t) Disclaimer of Other Representations and Warranties. Buyer, on its own behalf and on behalf of its Affiliates, (i) acknowledges, represents, warrants, and agrees that (x) Target makes no representation or warranty, express or implied, in respect of any of its assets (including, without limitation, the Acquired Assets), liabilities, or operations and (y) Buyer has not relied upon the accuracy or completeness of any express or implied representation, warranty, statement, or information of any nature made or provided by any Person on behalf of 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 this §3, and (ii) waives all rights Buyer or any of its Affiliates may have against any Target Stockholder or Target with respect to any omission or concealment of, or any misstatement with respect to, any other potentially material information by any Target Stockholder, Target, or any of their officers, directors, employees, agents, or representatives. Without limiting the generality of the foregoing, Target makes no representation or warranty regarding any assets other than the Acquired Assets or any liabilities other than the Assumed Liabilities, and none shall be implied at law or in equity.
§4. Buyer’s Representations and Warranties. Buyer represents and warrants to Target (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. The execution, delivery and performance of this Agreement and all other agreements contemplated hereby have been duly authorized by Buyer.
(c) Non-contravention. Neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated hereby (including the assignments and assumptions referred to in §2 above), will (i) violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any government, governmental agency, or court to which Buyer is subject or any provision of its charter, bylaws, or other governing documents or (ii) conflict with, result in a breach of, constitute a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or require any notice under any agreement, contract, lease, license, instrument, or other arrangement to which Buyer is a party or by which it is bound or to which any of its assets are subject. Buyer does not need to give any notice to, make any filing with, or obtain any authorization, consent, or approval of any government or governmental agency in order for the Parties to consummate the transactions contemplated by this Agreement (including the assignments and assumptions referred to in §2 above).
(d) Brokers’ Fees. Buyer has no liability or obligation to pay any fees or commissions to any broker, finder, or agent with respect to the transactions contemplated by this Agreement.
§5. Pre-Closing Covenants. The Parties agree as follows with respect to the period between the execution of this Agreement and the Closing:
(a) General. Each of the Parties will use its reasonable best efforts to take all actions and to do all things necessary[, proper, or advisable] in order to consummate and make effective the transactions contemplated by this Agreement (including satisfaction, but not waiver, of the Closing conditions set forth in §6 below).
(b) Notices and Consents. [Target shall give (and shall cause each of its Subsidiaries to give) any notices to third parties, and Target shall use its reasonable best efforts (and shall cause each of its Subsidiaries to use its reasonable best efforts) to obtain any third-party consents, referred to in §3(c) above and the items set forth in §5(b) of the Disclosure Schedule.] Each of the Parties will (and Target shall cause each of 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 shall 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 shall 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 shall cause each of its Subsidiaries to make) any further filings pursuant thereto that may be necessary[, proper, or advisable] in connection therewith.
(c) Operation of Business. [Target will not (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) engage in any practice, take any action, or enter into any transaction outside the Ordinary Course of Business the primary purpose or effect of which will be to generate or preserve Cash.
[(d) Full Access. Target will permit (and will cause each of its Subsidiaries to permit) in each case solely to the extent feasible under applicable law, 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; provided, that such access may be limited (or at Sellers’ discretion [after consultation with counsel]) to the extent Target and/or any of its Subsidiaries reasonably determines, in light of then-prevailing conditions, that such access would jeopardize the health and safety of any Target or Subsidiary employee; provided, further, that Buyer shall comply with all applicable safety rules and reasonable controls during such access. Buyer will treat and hold as such any Confidential Information it receives from any of Target Stockholders, Target, and its Subsidiaries in the course of the reviews contemplated by this §5(d), will not use any of the Confidential Information except in connection with this Agreement, and, if this Agreement is terminated for any reason whatsoever, will return to Target and its Subsidiaries all tangible embodiments (and all copies) of the Confidential Information that are in its possession.]
(e) Notice of Developments.
(i) Target may elect at any time to notify Buyer of any development causing a breach of any of its representations and warranties in §3(g)–(p) above. Unless Buyer has the right to terminate this Agreement pursuant to §7(a)(ii) below by reason of the development and exercises that right within the period of [10 business days] referred to in §7(a)(ii) below, the written notice pursuant to this §5(e)(i) will be deemed to have amended the Disclosure Schedule, to have qualified the representations and warranties contained in §3 above, and to have cured any misrepresentation or breach of warranty that otherwise might have existed hereunder by reason of the development.
(ii) Each Party will give prompt written notice to the other Party of any material adverse development causing a breach of any of his, her, or its own representations and warranties in §3(a)–(f) and §4 above. No disclosure by any Party pursuant to this §5(e)(ii), however, shall be deemed to amend or supplement the Disclosure Schedule or to prevent or cure any misrepresentation or breach of warranty.
(f) Exclusivity. Target will not (and will not cause or permit any of its Subsidiaries to) solicit, initiate, or encourage the submission of any proposal or offer from any Person relating to the acquisition of all or substantially all of the capital stock or assets of Target or any of its Subsidiaries (including any acquisition structured as a merger, consolidation, or share exchange); provided, however, that Target, its Subsidiaries, and their directors and officers will remain free to participate in any discussions or negotiations regarding, furnish any information with respect to, assist or participate in, or facilitate in any other manner any effort or attempt by any Person to do or seek any of the foregoing to the extent their fiduciary duties may require.
(g) Title Insurance and Surveys. Target shall use its commercially reasonable efforts to provide Buyer the Title Commitments, Title Policies and Surveys in form and substance as set out in §6 of this Agreement.
§6. Conditions to Obligation to Close.
(a) Conditions to Buyer’s Obligation. Buyer’s obligation to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in §3 above shall be true and correct in all material respects at and as of the Closing Date, except to the extent that such representations and warranties are qualified by the term ‘‘material,’’ or contain terms such as ‘‘Material Adverse Effect’’ or ‘‘Material Adverse Change,’’ in which case such representations and warranties (as so written, including the term ‘‘material’’ or ‘‘Material’’) shall be true and correct in all respects at and as of the Closing Date;
(ii) Target shall have performed and complied with all of its covenants hereunder in all material respects through the Closing, except to the extent that such covenants are qualified by the term ‘‘material,’’ or contain terms such as ‘‘Material Adverse Effect’’ or ‘‘Material Adverse Change,’’ in which case Target shall have performed and complied with all of such covenants (as so written, including the term ‘‘material’’ or ‘‘Material’’) in all respects through the Closing;
(iii) there shall not be any injunction, judgment, order, decree, ruling, or charge in effect preventing consummation of any of the transactions contemplated by this Agreement;
(iv) Target shall have delivered to Buyer a certificate to the effect that each of the conditions specified above in §6(a)(i)–(iii) is satisfied in all respects;
(v) [all applicable waiting periods (and any extensions thereof) under the Hart-Scott-Rodino Act shall have expired or otherwise been terminated and] Target, its Subsidiaries, and Buyer shall have received all [other] authorizations, consents, and approvals of governments and governmental agencies referred to in §3(c) and §4(c) above;
(vi) the relevant parties shall have entered into side agreements in form and substance as set forth in Exhibits F-1 through F-________ attached hereto and the same shall be in full force and effect;
(vii) Buyer shall have received from counsel to Target an opinion in form and substance as set forth in Exhibit G attached hereto, addressed to Buyer and on which Buyer’s lenders shall be entitled to rely, and dated as of the Closing Date;
(viii) all actions to be taken by Target in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby will be [reasonably] satisfactory in form and substance to Buyer;
(ix) Target shall have obtained and delivered to Buyer a commitment for an ALTA Owner’s Title Insurance Policy 2006 Form or other form of policy acceptable to Buyer for each parcel of Owned Real Property (other than Owned Real Property located outside the United States), issued by _________ (the ‘‘Title Company’’), together with a copy of all documents referenced therein that are obtained by the Title Company (the ‘‘Title Commitments’’);
(x) at Closing, Target shall have caused the Title Company to issue title insurance policies (which may be in the form of a mark-up of a pro forma of the Title Commitments) in accordance with the Title Commitments, insuring Buyer’s fee simple title to each parcel of Owned Real Property as of the Closing Date, subject only to Permitted Encumbrances, in such amount as Buyer and Target reasonably determine to be the value of the Real Property insured thereunder (the ‘‘Title Policies’’) (provided that Buyer shall pay all fees, costs and expenses with respect to the Title Commitments and Title Policies); and
(xi) Target shall have obtained and delivered to Buyer a survey for each parcel of Owned Real Property, dated no earlier than the date of this Agreement, prepared by a surveyor licensed in the jurisdiction where the property is located, conforming to 2011 ALTA/ACSM Minimum Detail Requirements for Land Title Surveys and certified to Buyer, Buyer’s lender and the Title Company (the ‘‘Surveys’’) (provided that Buyer shall pay all fees, costs and expenses with respect to the Surveys). 
Buyer may waive any condition specified in this §6(a) if it executes a writing so stating at or prior to the Closing.
(b) Conditions to Target’s Obligation. Target’s obligation 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) there shall not be any injunction, judgment, order, decree, ruling, or charge in effect preventing consummation of any of the transactions contemplated by this Agreement;
(iv) Buyer shall have delivered to Target a certificate to the effect that each of the conditions specified above in §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] 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 F-1 through F-______ 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 H 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 in the event (A) Target has within the then previous [10 business days] given Buyer any notice pursuant to §5(e)(i) above and (B) the development that is the subject of the notice has had a Material Adverse Effect.
(iii) Buyer may terminate this Agreement by giving written notice to Target at any time prior to the Closing (A) in the event Target has breached any material representation, warranty, or covenant contained in this Agreement (other than the representations and warranties in §3(g)–(p) above) in any material respect, Buyer has notified Target of the breach, and the breach has continued without cure for a period of [30 days] after the notice of breach or (B) if the Closing shall not have occurred on or before _____ ____, _____, by reason of the failure of any condition precedent under §6(a) hereof (unless the failure results primarily from Buyer itself breaching any representation, warranty, or covenant contained in this Agreement); and
(iv) Target may terminate this Agreement by giving written notice to Buyer at any time prior to the Closing (A) in the event Buyer has breached any material representation, warranty, or covenant contained in this Agreement in any material respect, Target has notified Buyer of the breach, and the breach has continued without cure for a period of [30 days] after the notice of breach or (B) if the Closing shall not have occurred on or before _______ ______, _________, by reason of the failure of any condition precedent under §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(d) 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 as 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:	
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 this Agreement or any default, misrepresentation, or breach of warranty or covenant hereunder, whether intentional or not, shall be valid unless the same shall be in writing and signed by the Parties making such a 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 Buyer will also bear all of the costs and expenses of Target Stockholders, Target, and Target’s Subsidiaries (including all of their legal fees and expenses) incurred in connection with this Agreement and the transactions contemplated hereby (other than any Income Tax on any income or gain Target or Target Stockholders may realize on the transactions contemplated hereby) in the event that the transactions contemplated by this Agreement are consummated. Without limiting the generality of the foregoing, all transfer, documentary, sales, use, stamp, registration and other such Taxes, and all conveyance fees, recording charges and other fees and charges (including any penalties and interest) incurred in connection with the consummation of the transactions contemplated by this Agreement shall be paid by Buyer when due, and Buyer will, at its own expense, file all necessary Tax Returns and other documentation with respect to all such Taxes, fees and charges, and, if required by applicable law, the Parties will, and will cause their Affiliates to, join in the execution of any such Tax Returns and other documentation.
(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 purchase 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 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. Buyer will ensure that the Employee Benefit Plans treat employment with Target or any of its Subsidiaries prior to the Closing Date the same as employment with Buyer or any of its Subsidiaries from and after the Closing Date for purposes of eligibility, vesting, and benefit accrual. Target will transfer (or cause the plan administrators to transfer) at and as of the Closing all of the corresponding assets associated with the Employee Benefit Plans that Buyer is adopting and assuming. With respect to each Multiemployer Plan, the Parties shall take all actions necessary to comply with the requirements of ERISA §4204.]
(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) Tax Disclosure Authorization. Notwithstanding anything herein to the contrary, the Parties (and each Affiliate and Person acting on behalf of any Party) agree that each Party (and each employee, representative, and other agent of such Party) may disclose to any and all Persons, without limitation of any kind, the tax treatment and tax structure (as such terms are used in regulations promulgated under Code §6011) of the transactions contemplated by this agreement; [provided, however, that such disclosure may not be made until the earlier of date of (A) public announcement of discussions relating to the transaction, (B) public announcement of the transaction, or (C) execution of an agreement (with or without conditions) to enter into the transaction]. This authorization is not intended to permit disclosure of any other information including (without limitation) (A) any portion of any materials to the extent not related to the transaction’s tax treatment or tax structure, (B) the identities of participants or potential participants, (C) the existence or status of any negotiations, (D) any pricing or financial information (except to the extent such pricing or financial information is related to the transaction’s tax treatment or tax structure), or (E) any other term or detail not relevant to the transaction’s tax treatment or the tax structure.]
* * * * *

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