STOCK PURCHASE AGREEMENT
AMONG
______________
AND
_________, __________,
AND ___________
______ _____, _____

TABLE OF CONTENTS
§1. Definitions	5
§2. Purchase and Sale of Target Shares	10
(a) Basic Transaction	10
(b) Purchase Price	10
(c) Net Cash Payment to Sellers	11
(d) Closing	11
(e) Deliveries at Closing	11
§3. Representations and Warranties Concerning Transaction	11
(a) Sellers’ Representations and Warranties	11
(b) Buyer’s Representations and Warranties	12
§4. Representations and Warranties Concerning Target and Its Subsidiaries	13
(a) Organization, Qualification, and Corporate Power	14
(b) Capitalization	14
(c) Non-contravention	14
(d) Brokers’ Fees	14
(e) Title to Tangible Assets	14
(f) Subsidiaries	14
(g) Financial Statements	15
(h) Events Subsequent to Most Recent Fiscal Month End	15
(i) Legal Compliance	15
(j) Tax Matters	15
(k) Real Property	17
(l)  Intellectual Property	17
(m) Contracts	17
(n) Powers of Attorney	17
(o) Litigation	17
(p) Employee Benefits	17
(q) Environmental Matters	18
(r) Certain Business Relationships with Target and Its Subsidiaries	19
(s) Disclaimer of Other Representations and Warranties	19
§5. Pre-Closing Covenants	20
(a) General	20
(b) Notices and Consents	20
(c) Operation of Business	20
(d) Full Access	21
(e) Notice of Developments	21
(f) Exclusivity	21
§6. Post-Closing Covenants	22
(a) General	22
(b) Litigation Support	22
(c) Transition	23
(d) Non-Compete Covenant	23
(e) Buyer Notes	23
(f) No Intermediary Transaction Tax Shelter	23
(g) Post-Acquisition Attorney-Client Issues	23
§7. Conditions to Obligation to Close	24
(a) Conditions to Buyer’s Obligation	25
(b) Conditions to Sellers’ Obligation	26
§8. Remedies for Breaches of This Agreement	26
(a) Survival of Representations and Warranties	27
(b) Indemnification Provisions for Buyer’s Benefit	28
(c) Indemnification Provisions for Sellers’ Benefit	29
(d) Matters Involving Third Parties	29
(e) Determination of Adverse Consequences	30
(f) Waiver of Certain Damages	30
(g) Exclusive Remedy	31
(h) Environmental Remedies	31
(i) Recoupment Against Buyer Notes	32
§9. Termination	32
(a) Termination of Agreement	32
(b) Effect of Termination	33
§10. Miscellaneous	33
(a) Nature of Sellers’ Obligations	33
(b) Press Releases and Public Announcements	33
(c) No Third-Party Beneficiaries	34
(d) No Code §338 Election	34
(e) Refunds and Other Transaction Tax Deduction Benefits	34
(f) Entire Agreement	34
(g) Succession and Assignment	34
(h) Counterparts	34
(i) Headings	34
(j) Notices	35
(k) Governing Law	35
(l) Amendments and Waivers	35
(m) Severability	35
(n) Expenses	35
(o) Construction	36
(p) Incorporation of Exhibits, Annexes, and Schedules	36
(q) Governing Language	36
(r) Tax Disclosure Authorization	36

Exhibit A—Form of Buyer Notes
Exhibit B—Historical Financial Statements
Exhibit C—Forms of Side Agreements
Exhibit D—Form of Opinion of Sellers’ Counsel
Exhibit E—Form of Opinion of Buyer’s Counsel
Annex I—Exceptions to Sellers’ Representations and Warranties Concerning Transaction
Annex II—Exceptions to Buyer’s Representations and Warranties Concerning Transaction
Disclosure Schedule—Exceptions to Representations and Warranties Concerning Target and Its Subsidiaries

[EXHIBITS, ANNEXES, AND SCHEDULES HAVE BEEN OMITTED FROM THIS SAMPLE FORM 2202] 
STOCK PURCHASE AGREEMENT,,
This Stock Purchase Agreement (this ‘‘Agreement’’) is entered into on [as of] _______ ____, ________, by and among __________, a __________ corporation (‘‘Buyer’’), and __________, __________, and ___________ (each a ‘‘Seller’’ and collectively, ‘‘Sellers’’). Buyer and Sellers are referred to collectively herein as the ‘‘Parties.’’
Sellers in the aggregate own all of the outstanding capital stock of __________, a __________ corporation (‘‘Target’’).
This Agreement contemplates a transaction in which Buyer will purchase from Sellers, and Sellers will sell to Buyer, all of the outstanding capital stock 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.
‘‘Adverse Consequences’’ means, subject to the limitations set forth in §8(f), all actions, suits, proceedings, hearings, investigations, charges, complaints, claims, demands, injunctions, judgments, orders, decrees, rulings, damages, dues, penalties, fines, costs, [reasonable amounts paid in settlement,] liabilities, obligations, taxes, liens, losses, expenses, and fees, including court costs and [reasonable] attorneys’ fees and expenses.
‘‘Affiliate’’ has the meaning set forth in Rule 12b-2 of the regulations promulgated under the Securities Exchange Act.
‘‘Affiliated Group’’ means any affiliated group within the meaning of Code §1504(a) or any similar group defined under a similar provision of state, local, or non-U.S. law.
‘‘Allocable Portion’’ means with respect to the share of any Seller in a particular amount that fraction equal to the number of Target Shares the Seller holds as set forth in §4(b) of the Disclosure Schedule over the total number of outstanding Target Shares.
‘‘Applicable Rate’’ means the corporate base rate of interest publicly announced from time to time by [Financial Institution [plus/minus __________ % per annum].
‘‘Buyer’’ has the meaning set forth in the preface above.
‘‘Buyer Notes’’ has the meaning set forth in §2(b) 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(d) below.
‘‘Closing Date’’ has the meaning set forth in §2(d) 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 §4 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.
‘‘Financial Statements’’ has the meaning set forth in §4(g) below.
‘‘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.
‘‘Income Tax’’ means any federal, state, local, or non-U.S. income tax measured by or imposed on net income, including any interest, penalty, or addition thereto, whether disputed or not.
‘‘Income Tax Return’’ means any return, declaration, report, claim for refund, or information return or statement relating to Income Taxes, including any schedule or attachment thereto.
‘‘Indemnified Party’’ has the meaning set forth in §8(d) below.
‘‘Indemnifying Party’’ has the meaning set forth in §8(d) below.
‘‘Knowledge’’ means actual knowledge without independent investigation.
‘‘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 any of 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) liens for taxes not yet due and payable [or for taxes that the taxpayer is contesting in good faith through appropriate proceedings], (b) purchase money liens and liens securing rental payments under capital lease arrangements, and (c) 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 U.S., or any of its territories, possessions, or diplomatic or consular offices or upon any military installation, equipment or personnel of the U.S., (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 U.S. 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 Sellers before the earlier of (1) the Closing Date and (2) the date on which this Agreement is terminated pursuant to §10 hereof.
‘‘Most Recent Financial Statements’’ has the meaning set forth in §4(g) below.
‘‘Most Recent Fiscal Month End’’ has the meaning set forth in §4(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 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 will not be paid off at Closing; and (e) easements, covenants, conditions, restrictions, and other similar matters affecting title to such Owned Real Property and other title 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(b) below.
‘‘Requisite Sellers’’ means Sellers holding [a majority] in interest of Target Shares as set forth in §4(b) of the Disclosure Schedule.
‘‘Securities Act’’ means the Securities Act of 1933, as amended.
‘‘Securities Exchange Act’’ means the Securities Exchange Act of 1934, as amended.
‘‘Seller’’ has the meaning set forth in the preface above.
‘‘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.
‘‘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.
‘‘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, including any interest, penalty, or addition thereto, whether disputed or not.
‘‘Tax Return’’ means any return, declaration, report, claim for refund, or information return or statement relating to Taxes, including any schedule or attachment thereto, and including any amendment thereof.
‘‘Third-Party Claim’’ has the meaning set forth in §8(d) below.
‘‘Transaction Tax Deductions’’ means any item of loss or deduction resulting from or attributable to (i) transaction bonuses, change-in-control payments, severance payments, retention payments, or similar payments made to employees or other service providers of Target or any of its Subsidiaries, (ii) the fees, expenses, and interest (including unamortized original issue discount and any other amounts treated as interest for federal income Tax purposes and any prepayment penalty or breakage fees or accelerated deferred financing fees) incurred by Target or any of its Subsidiaries with respect to the payment of any indebtedness, (iii) the amount of investment banking, legal, and accounting fees and expenses paid or payable by Target or any of its Subsidiaries, (iv) accelerated vesting of SRF stock held by employees of Target or any of its Subsidiaries, and (v) the amount of any deductions for federal income Tax purposes as a result of the exercise or payment for cancellation of employee or other compensatory options, in each case arising in connection with the transactions contemplated by this Agreement and as determined by the Requisite Sellers in good faith.
§2. Purchase and Sale of Target Shares.
(a) Basic Transaction. On and subject to the terms and conditions of this Agreement, Buyer agrees to purchase from each Seller, and each Seller agrees to sell to Buyer, all of his, her, or its Target Shares for the consideration specified below in this §2.
(b) Purchase Price. Buyer agrees to pay to Sellers at the Closing $__________ (the ‘‘Purchase Price’’) by delivery of (i) its promissory notes (the ‘‘Buyer Notes’’) in the form of Exhibit A attached hereto in the 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. The Purchase Price shall be allocated among Sellers in proportion to their respective holdings of Target Shares as set forth in §4(b) of the Disclosure Schedule.
(c) Net Cash Payment to Sellers. Immediately prior to the Closing, Sellers shall cause Target to pay Sellers in proportion to their respective holdings of Target Shares an aggregate amount (and may cause each Subsidiary of Target to pay to Target any necessary component thereof) equal to Sellers’ good faith estimate of the excess (if any) of (i) the consolidated Cash of Target and its Subsidiaries as of the Closing over (ii) the aggregate liability of Target and its 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 but taking into account all Transaction Tax Deductions). Sellers may cause (A) Target to make any such payment to them in the form of a dividend or a redemption and (B) any Subsidiary of Target to make any such payment to Target in the form of a dividend, a redemption, or an intercompany loan.
(d) 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 Buyer and Requisite Sellers may mutually determine (the ‘‘Closing Date’’); provided, however, that the Closing Date shall be no earlier than _______ ____, ________.
(e) Deliveries at Closing. At the Closing, (i) Sellers shall deliver to Buyer the various certificates, instruments, and documents referred to in §7(a) below, (ii) Buyer will deliver to Sellers the various certificates, instruments, and documents referred to in §7(b) below, (iii) each Seller will deliver to Buyer stock certificates representing all of his, her, or its Target Shares, endorsed in blank or accompanied by duly executed assignment documents, and (iv) Buyer will deliver to each Seller the consideration specified in §2(b) above.
§3. Representations and Warranties Concerning Transaction.
(a) Sellers’ Representations and Warranties. Each Seller represents and warrants to Buyer that the statements contained in this §3(a) 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(a)) with respect to himself, herself, or itself, except as set forth in Annex I attached hereto.
(i) Organization of Certain Sellers. Seller (if a corporation or other entity) is duly organized, validly existing, and in good standing under the laws of the jurisdiction of its incorporation (or other formation).
(ii) Authorization of Transaction. Seller has full power and authority (including full corporate or other entity power and authority) to execute and deliver this Agreement and to perform his, her, or its obligations hereunder. This Agreement constitutes the valid and legally binding obligation of Seller, enforceable in accordance with its terms and conditions. Seller 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 Seller.
(iii) Non-contravention. Neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated hereby, will (A) violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any government, governmental agency, or court to which Seller is subject or, if Seller is an entity, any provision of its charter, bylaws, or other governing documents, (B) 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 Seller is a party or by which he, she, or it is bound or to which any of his, her, or its assets is subject, or (C) result in the imposition or creation of a Lien upon or with respect to Target Shares.
(iv) Brokers’ Fees. Seller 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.
(v) Investment. Seller (A) 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, (B) is acquiring the Buyer Notes solely for his, her, or its own account for investment purposes, and not with a view to the distribution thereof, (C) is a sophisticated investor with knowledge and experience in business and financial matters, (D) 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, (E) is able to bear the economic risk and lack of liquidity inherent in holding the Buyer Notes, and (F) is an Accredited Investor for the reasons set forth on Annex I.
(vi) Target Shares. Seller holds of record and owns beneficially the number of Target Shares set forth next to his, her, or its name in §4(b) of the Disclosure Schedule, 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. Seller is not a party to any option, warrant, purchase right, or other contract or commitment (other than this Agreement) that could require Seller to sell, transfer, or otherwise dispose of any capital stock of Target. Seller is not a party to any voting trust, proxy, or other agreement or understanding with respect to the voting of any capital stock of Target.
(b) Buyer’s Representations and Warranties. Buyer represents and warrants to each Seller that the statements contained in this §3(b) 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(b)), except as set forth in Annex II attached hereto.
(i) 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).
(ii) 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.
(iii) Non-contravention. Neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated hereby, will (A) 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 (B) 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 is subject.
(iv) 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.
(v) Investment. Buyer is not acquiring the Target Shares with a view to or for sale in connection with any distribution thereof within the meaning of the Securities Act.
(vi) Buyer has no plan or intention to take any action with respect to the Target subsequent to the Closing that would cause the transactions contemplated hereby to constitute part of a transaction that is the same as, or substantially similar to, the ‘‘Intermediary Transaction Tax Shelter’’ described in Internal Revenue Service Notices 2001-16 and 2008-111.
§4. Representations and Warranties Concerning Target and Its Subsidiaries. Sellers represent and warrant to Buyer 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 delivered by Sellers to Buyer on the date hereof and initialed by the Parties (the ‘‘Disclosure Schedule’’).
(a) Organization, Qualification, and Corporate Power. Each of Target and its Subsidiaries are corporations duly organized, validly existing, and in good standing under the laws of the jurisdiction of their incorporation. Each of Target and its Subsidiaries are duly authorized to conduct business and are 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 of Target and its Subsidiaries have full corporate power and authority to carry on the business in which they are engaged and to own and use the properties owned and used by them. §4(a) of the Disclosure Schedule lists the directors and officers of Target and each of its Subsidiaries.
(b) Capitalization. The entire authorized capital stock of Target consists of __________ Target Shares, of which ________ Target Shares are issued and outstanding and ________ Target Shares are held in treasury. All of the issued and outstanding Target Shares have been duly authorized, are validly issued, fully paid, and non-assessable, and are held of record by the respective Sellers as set forth in §4(b) of the Disclosure Schedule. 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 to issue, sell, or otherwise cause to become outstanding any of its capital stock. There are no outstanding or authorized stock appreciation, phantom stock, profit participation, or similar rights with respect to Target.
(c) Non-contravention. To the Knowledge of any Seller, neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated hereby, 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 are subject or any provision of the charter or bylaws of Target and 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 Seller, 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, 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. Neither Target nor any of its Subsidiaries 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 [and marketable] title to, or a valid leasehold interest in, the material tangible assets they use regularly in the conduct of their business.
(f) Subsidiaries. §4(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, and (iv) the number of shares of its capital stock held in treasury. 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. One of Target and 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 §4(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 B 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 Seller, each of Target and its Subsidiaries have 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 have filed all Income Tax Returns that they were required to file, and have 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) §4(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. Sellers have 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) Neither Target nor any of its Subsidiaries has waived any statute of limitations in respect of Income Taxes or agreed to any extension of time with respect to an Income Tax assessment or deficiency.
(iv) Neither Target nor any of its Subsidiaries is a party to any Income Tax allocation or sharing agreement.
[(v) To the Knowledge of any Seller, 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).]
(vi) 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) §4(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 §4(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) §4(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. Each of Target and its Subsidiaries have delivered to Buyer a true and complete copy of each Lease document.
(l) Intellectual Property. §4(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. §4(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 $___________. Sellers have delivered to Buyer a correct and complete copy of each contract or other agreement (as amended to date) listed in §4(m) of the Disclosure Schedule.
(n) Powers of Attorney. To the Knowledge of any Seller, there are no outstanding powers of attorney executed on behalf of Target or any of its Subsidiaries.
(o) Litigation. §4(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) §4(p) of the Disclosure Schedule lists each Employee Benefit Plan that Target or any of its Subsidiaries maintains, to which any of Target and its Subsidiaries contributes, or with respect to which Target or any of its Subsidiaries has any liability.
(A) To the Knowledge of any Seller, 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 §3(35)).]
Alternative 2—add the following paragraphs if there are Defined Benefit Plans:
[(ii) With respect to each Employee Benefit Plan that any of Target, 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 Seller, 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 Seller, 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 §4(q) contains the sole and exclusive representations and warranties of Sellers with respect to any environmental matters, including without limitation any arising under any Environmental Requirements.
(r) Certain Business Relationships with Target and Its Subsidiaries. None of Sellers and 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 none of Sellers and their Affiliates owns any material asset, tangible or intangible, that is used in the business of Target and any of its Subsidiaries.
(s) 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) neither Target nor any Seller makes any representation or warranty, express or implied, in respect of the Target Shares or Target, its Subsidiaries, or any of their respective 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 Seller 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 §3 and this §4, and (ii) waives all rights Buyer or any of its Affiliates may have against any Seller or Target with respect to any omission or concealment of, or any misstatement with respect to, any other potentially material information by any Seller, Target, or any of their officers, directors, employees, agents, or representatives.
§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 his, her, or its reasonable best efforts to take all actions and to do all things necessary[, proper, or advisable] in order to consummate and make effective the transactions contemplated by this Agreement (including satisfaction, but not waiver, of the Closing conditions set forth in §7 below).
(b) Notices and Consents. [Sellers shall cause each of Target and its Subsidiaries to give any notices to third parties, and shall cause each of Target and its Subsidiaries to use their reasonable best efforts to obtain any third party consents, referred to in §4(c) above and the items set forth in §5(b) of the Disclosure Schedule.] Each of the Parties will (and Sellers will cause each of Target and 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(a)(ii), §3(b)(ii) and §4(c) above. Without limiting the generality of the foregoing, each of the Parties will file (and Sellers will cause each of Target and its Subsidiaries to file) any Notification and Report Forms and related material that he, she, or it may be required to file with the Federal Trade Commission and the Antitrust Division of the U.S. Department of Justice under the Hart-Scott-Rodino Act, will use his, her, or its reasonable best efforts to obtain (and Sellers will cause each of Target and its Subsidiaries to use their reasonable best efforts to obtain) a waiver from the applicable waiting period, and will make (and Sellers will cause each of Target and its Subsidiaries to make) any further filings pursuant thereto that may be necessary[, proper, or advisable] in connection therewith.
(c) Operation of Business. [Sellers will not cause or permit Target or 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,] Sellers will not cause or permit Target or 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. Each Seller will permit, and Sellers will cause Target and 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 Sellers, 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 Sellers, Target, and its Subsidiaries all tangible embodiments (and all copies) of the Confidential Information that are in its possession.]
(e) Notice of Developments.
(i) Any Seller may elect at any time to notify Buyer of any development causing a breach of any of the representations and warranties in §4 above. Unless Buyer has the right to terminate this Agreement pursuant to §9(a)(ii) below by reason of the development and exercises that right within the period of [10 business days] referred to in §9(a)(ii) below, the written notice pursuant to this §5(e)(i) will be deemed to have amended the Disclosure Schedule, to have qualified the representations and warranties contained in §4 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 others of any material adverse development causing a breach of any of his, her, or its own representations and warranties in §3 above. No disclosure by any Party pursuant to this §5(e)(ii), however, shall be deemed to amend or supplement Annex I, Annex II, or the Disclosure Schedule or to prevent or cure any misrepresentation or breach of warranty.
(f) Exclusivity. No Seller will (and Sellers will not cause or permit Target or 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 Sellers, 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.
§6. Post-Closing Covenants. The Parties agree as follows with respect to the period following the Closing.
(a) General. In case at any time after the Closing any further action is necessary [or desirable] to carry out the purposes of this Agreement, each of the Parties will take such further action (including the execution and delivery of such further instruments and documents) as any other Party [reasonably] may request, all at the sole cost and expense of the requesting Party (unless the requesting Party is entitled to indemnification therefor under §8 below).
(b) Litigation Support. Except as provided in §6(g) below, in the event and for so long as any Party actively is contesting or defending against any action, suit, proceeding, hearing, investigation, charge, complaint, claim, or demand in connection with (i) any transaction contemplated under this Agreement or (ii) any fact, situation, circumstance, status, condition, activity, practice, plan, occurrence, event, incident, action, failure to act, or transaction on or prior to the Closing Date involving Target or any of its Subsidiaries, each of the other Parties shall cooperate with him, her, or it and his, her, or its counsel in the defense or contest, make available his, her, or its personnel, and provide such testimony and access to his, her, or its books and records as shall be necessary in connection with the defense or contest, all at the sole cost and expense of the contesting or defending Party (unless the contesting or defending Party is entitled to indemnification therefor under §8 below).
(c) Transition. [No Seller will take any action that is designed or intended to have the effect of discouraging any lessor, licensor, customer, supplier, or other business associate of Target or any of its Subsidiaries from maintaining the same business relationships with Target and its Subsidiaries after the Closing as it maintained with Target and its Subsidiaries prior to the Closing.]
[(d) Non-Compete Covenant. For a period of 1 year from and after the Closing Date, no Seller will engage directly or indirectly in any business that Target or any of its Subsidiaries conducts as of the Closing Date in any geographic area in which Target or any of its Subsidiaries conducts that business as of the Closing Date; provided, however, that no owner of less than 5% of the outstanding stock of any publicly traded corporation shall be deemed to engage solely by reason thereof in its business. If the final judgment of a court of competent jurisdiction declares that any term or provision of this §6(d) is invalid or unenforceable, the Parties agree that the court making the determination of invalidity or unenforceability shall have the power to reduce the scope, duration, or area of the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified after the expiration of the time within which the judgment may be appealed.]
(e) Buyer Notes. Each of the Buyer Notes will be imprinted with a legend substantially in the following form:
This Note was originally issued on ________ ____, _______, and has not been registered under the Securities Act of 1933, as amended.
(f) No Intermediary Transaction Tax Shelter. Buyer shall not take any action with respect to the Target subsequent to the Closing that would cause the transactions contemplated hereby to constitute part of a transaction that is the same as, or substantially similar to, the ‘‘Intermediary Transaction Tax Shelter’’ described in Internal Revenue Service Notices 2001-16 and 2008-111.
(g)	Post-Acquisition Attorney-Client Issues.
(i) Seller’s Post-Acquisition Use of Law Firm. Each party to this Agreement acknowledges that (a) 1 or more of Target, its Subsidiaries, and Sellers have retained Law Firm to act as their counsel in connection with the Transaction [as well as other past and ongoing matters], (b) Law Firm has not acted as counsel for any other Person in connection with the Transaction, and (c) no Person other than Target, its Subsidiaries, and Sellers has the status of a Law Firm client for conflict of interest or any other purpose as a result thereof. Buyer (1) waives and will not assert, and will cause each of its Subsidiaries (including, after Closing, Target and its Subsidiaries) to waive and not assert, any conflict of interest relating to Law Firm’s representation after the Closing of any Seller or Seller’s Affiliate in any matter involving the Transaction (including any litigation, arbitration, mediation, or other proceeding), and (2) consents to, and will cause each of its Subsidiaries (including, after Closing, Target and its Subsidiaries) to consent to, any such representation, even though in each case (x) the interests of such Seller and/or Seller’s Affiliate may be directly adverse to Buyer, Target, or any of their Subsidiaries, (y) Law Firm may have represented Target or its Subsidiaries in a substantially related matter, or (z) Law Firm may be handling other ongoing matters for Buyer, Target, or any of their respective Subsidiaries.
(ii) Buyer’s Non-Access to Target’s Legal Records re Acquisition Transaction. Buyer agrees that, after the Closing, neither Target, Buyer, nor any of their Subsidiaries will have any right to access or control any of Law Firm’s records relating to or affecting the Transaction, which will be the property of (and be controlled by) Requisite Sellers. In addition, Buyer agrees that it would be impractical to remove all Attorney-Client Communications from the records (including e-mails and other electronic files) of Target and its Subsidiaries. Accordingly, Buyer will not, and will cause each of its Subsidiaries (including, after Closing, Target and its Subsidiaries) not to, use any Attorney-Client Communication remaining in the records of Target or any of its Subsidiaries after Closing in a manner that may be adverse to any Seller or any Seller’s Affiliate.
(iii) Seller’s Retention of Attorney-Client Privilege with Respect to Sell-Side Acquisition Legal Representation. Buyer agrees, on its own behalf and on behalf of its Subsidiaries (including, after Closing, Target and its Subsidiaries), that from and after Closing (a) the attorney-client privilege, all other evidentiary privileges, and the expectation of client confidence as to all Attorney-Client Communications belong to Sellers and will not pass to or be claimed by Buyer, Target, or any of their Subsidiaries, and (b) Requisite Sellers will have the exclusive right to control, assert, or waive the attorney-client privilege, any other evidentiary privilege, and the expectation of client confidence with respect to such Attorney-Client Communications. Accordingly, Buyer will not, and will cause each of its Subsidiaries (including, after Closing, Target and its Subsidiaries) not to, (x) assert any attorney-client privilege, other evidentiary privilege, or expectation of client confidence with respect to any Attorney-Client Communication, except in the event of a post-Closing dispute with a Person that is not a Seller or a Seller’s Affiliate; or (y) take any action which could cause any Attorney-Client Communication to cease being a confidential communication or to otherwise lose protection under the attorney-client privilege or any other evidentiary privilege, including waiving such protection in any dispute with a Person that is not a Seller or a Seller’s Affiliate. Furthermore, Buyer agrees, on its own behalf and on behalf of each of its Subsidiaries (including, after Closing, Target and its Subsidiaries), that in the event of a dispute between any Seller or any Seller’s Affiliate on the one hand and Target or any of its Subsidiaries on the other arising out of or relating to any matter in which Law Firm jointly represented both parties, neither the attorney-client privilege, the expectation of client confidence, nor any right to any other evidentiary privilege will protect from disclosure to such Seller or Seller’s Affiliate any information or documents developed or shared during the course of Law Firm’s joint representation.
(iv) Defined Terms. For purposes of this §6(g), the following terms will have the following meanings:
‘‘Attorney-Client Communication’’ means any communication occurring on or prior to Closing between Law Firm on the one hand and Target, its Subsidiaries, any Seller, 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.
‘‘Law Firm’’ means [insert name of each law firm to be covered by §6(g)].
‘‘Transaction’’ means the negotiation, preparation, execution, and delivery of this Agreement and related agreements, and the consummation of the transactions contemplated hereby or thereby.
§7. 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(a) and §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) Sellers shall have performed and complied with all of their 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) 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) Sellers shall have delivered to Buyer a certificate to the effect that each of the conditions specified above in §7(a)(i)–(iii) is satisfied in all respects;
(v) [all applicable waiting periods (and any extensions thereof) under the Hart-Scott-Rodino Act shall have expired or otherwise been terminated and] the Parties, Target, and its Subsidiaries shall have received all [other] authorizations, consents, and approvals of governments and governmental agencies referred to in §3(a)(ii), §3(b)(ii), and §4(c) above;
(vi) the relevant parties shall have entered into side agreements in form and substance as set forth in Exhibits C-1 through C-__________ attached hereto and the same shall be in full force and effect;
(vii) Buyer shall have received from counsel to Sellers an opinion in form and substance as set forth in Exhibit D attached hereto, addressed to Buyer and on which Buyer’s lenders shall be entitled to rely, and dated as of the Closing Date; and
(viii) all actions to be taken by Sellers 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.
Buyer may waive any condition specified in this §7(a) if it executes a writing so stating at or prior to the Closing.
(b) Conditions to Sellers’ Obligation. Sellers’ obligation to consummate the transactions to be performed by them in connection with the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in §3(b) 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 the 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 Sellers a certificate to the effect that each of the conditions specified above in §7(b)(i)-(iii) is satisfied in all respects;
(v) [all applicable waiting periods (and any extensions thereof) under the Hart-Scott-Rodino Act shall have expired or otherwise been terminated and] the Parties, Target, and its Subsidiaries shall have received all [other] authorizations, consents, and approvals of governments and governmental agencies referred to in §3(a)(ii), §3(b)(ii), and §4(c) above;
(vi) the relevant parties shall have entered into side agreements in form and substance as set forth in Exhibits C-__________, C-_______, … and C-_______ and the same shall be in full force and effect;
(vii) Sellers shall have received from counsel to Buyer an opinion in form and substance as set forth in Exhibit E attached hereto, addressed to Sellers, 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 Requisite Sellers.
Requisite Sellers may waive any condition specified in this §7(b) on behalf of all Sellers if they execute a writing so stating at or prior to the Closing.
§8. Remedies for Breaches of This Agreement.
(a) Survival of Representations and Warranties.
Alternative 1—add the following paragraph if the Parties are seeking Minimal Indemnification:
[None of the representations and warranties of Sellers contained in §4 above shall survive the Closing hereunder. All of the representations and warranties of the Parties contained in §3 above shall survive the Closing (unless the damaged Party knew or had reason to know of any misrepresentation or breach of warranty at the time of Closing) and continue in full force and effect for the maximum period for bringing a breach of contract claim permitted under the statute of limitations of the jurisdiction specified in §11(i).]
Alternative 2—add the following paragraph if the Parties are seeking Limited Indemnification:
[The Parties, intending to shorten the applicable statute of limitations period, agree that all of the representations and warranties of Sellers contained in §4 above shall survive the Closing hereunder (unless Buyer knew or had reason to know of any misrepresentation or breach of warranty at the time of Closing) and shall expire on the [first] anniversary of the Closing. All of the representations and warranties of the Parties contained in §3 above shall survive the Closing (unless the damaged Party knew or had reason to know of any misrepresentation or breach of warranty at the time of Closing) and continue in full force and effect for the maximum period for bringing a breach of contract claim permitted under the statute of limitations of the jurisdiction specified in §11(i).]
(b) Indemnification Provisions for Buyer’s Benefit.
(i) In the event any Seller breaches any of his, her, or its representations, warranties, and covenants contained herein (other than the covenants in §2(a) above and the representations and warranties in §3(a) above), and, provided that Buyer makes a written claim for indemnification against any Seller pursuant to §10(h) below before expiration of the applicable survival period set forth in §8(a) above, then such survival period shall not expire with respect to such claim and each Seller shall indemnify Buyer from and against his, her, or its Allocable Portion of any Adverse Consequences Buyer shall suffer (but excluding any Adverse Consequences Buyer shall suffer after the end of any applicable survival period) caused [proximately] by the breach [, and any applicable statute of limitations period on filing a lawsuit with respect to such claim shall not expire until 1 year after the later of (1) the date of Buyer’s written claim for indemnification and (2) the expiration of the applicable survival period set forth in §8(a) above]; provided, however, that Sellers shall not have any obligation to indemnify Buyer from and against any Adverse Consequences caused by the breach of any representation or warranty or covenant of Sellers contained in §4 above.
Alternative 2—add the following language if the Parties are seeking Limited Indemnification: [(A) until Buyer has suffered Adverse Consequences by reason of all such breaches in excess of a $________ aggregate deductible (after which point Sellers will be obligated only to indemnify Buyer from and against further such Adverse Consequences) or thereafter (B) to the extent the Adverse Consequences Buyer has suffered by reason of all such breaches exceed a $________ aggregate ceiling (after which point Sellers will have no obligation to indemnify Buyer from and against further such Adverse Consequences).]
(ii) In the event any Seller breaches any of his, her, or its covenants in §2(a) above or any of his, her, or its representations and warranties in §3(a) above, and provided that Buyer makes a written claim for indemnification against such Seller pursuant to §10(j) below before expiration of the applicable survival period set forth in §8(a) above, then such survival period shall not expire with respect to such claim and such Seller shall indemnify Buyer from and against the entirety of any Adverse Consequences Buyer shall suffer through and after the date of the claim for indemnification (but excluding any Adverse Consequences Buyer shall suffer after the end of any applicable survival period) caused [proximately] by such Seller’s breach [, and any applicable statute of limitations period on filing a lawsuit with respect to such claim shall not expire until 1 year after the later of (1) the date of Buyer’s written claim for indemnification and (2) the expiration of the applicable survival period set forth in §8(a) above].
(c) Indemnification Provisions for Sellers’ Benefit. In the event Buyer breaches any of its representations, warranties, and covenants contained herein, and provided that any Seller makes a written claim for indemnification against Buyer pursuant to §10(j) below within the survival period (if there is an applicable survival period pursuant to §8(a) above), then Buyer shall indemnify each Seller from and against the entirety of any Adverse Consequences suffered (including any Adverse Consequences suffered after the end of any applicable survival period) caused [proximately] by the breach.
(d) Matters Involving Third Parties.
(i) If any third party shall notify any Party (the ‘‘Indemnified Party’’) with respect to any matter (a ‘‘Third-Party Claim’’) which may give rise to a claim for indemnification against any other Party (the ‘‘Indemnifying Party’’) under this §8, then the Indemnified Party shall promptly (and in any event within [5 business days] after receiving notice of the Third-Party Claim) notify each Indemnifying Party thereof in writing.
(ii) Any Indemnifying Party will have the right at any time to assume and thereafter conduct the defense of the Third-Party Claim with counsel of his, her, or its choice [reasonably satisfactory to the Indemnified Party; provided, however, that the Indemnifying Party will not consent to the entry of any judgment or enter into any settlement with respect to the Third-Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheld) unless the judgment or proposed settlement involves only the payment of money damages and does not impose an injunction or other equitable relief upon the Indemnified Party].
(iii) Unless and until an Indemnifying Party assumes the defense of the Third-Party Claim as provided in §8(d)(ii) above, however, the Indemnified Party may defend against the Third-Party Claim in any manner he, she, or it may reasonably deem appropriate.
(iv) In no event will the Indemnified Party consent to the entry of any judgment on or enter into any settlement with respect to the Third-Party Claim without the prior written consent of each of the Indemnifying Parties [(not to be unreasonably withheld)].
(e) Determination of Adverse Consequences. All indemnification payments under this §8 shall be paid by the Indemnifying Party net of any Tax benefits and insurance coverage that may be available to the Indemnified Party [and shall be adjusted to take into account the time cost of money (using the Applicable Rate as the discount rate)]. All indemnification payments under this §8 shall be deemed adjustments to the Purchase Price.
(f) Waiver of Certain Damages. In no event shall any Party be entitled to recover or make a claim under this Agreement for any amounts in respect of, and in no event shall “Adverse Consequences” be deemed to include, (i) punitive damages (unless payable to a third party), (ii) consequential, incidental, special, or indirect damages, or (iii) lost profits, loss of future revenue or income, or any diminution of value or similar damages based on “multiple of profits” or “multiple of cash flow” or other valuation methodology, whether or not such damages were reasonably foreseeable or the Parties contemplated that such damages would be a probable result of a breach of this Agreement.
(g) Exclusive Remedy. Buyer and Sellers acknowledge and agree that the foregoing indemnification provisions in this §8 shall be the exclusive remedy of Buyer and Sellers with respect to Target, its Subsidiaries, and the transactions contemplated by this Agreement.
Alternative 1—add the following language if the Parties are seeking Minimal Indemnification: [Without limiting the generality of the foregoing, Buyer acknowledges and agrees that it shall not have any remedy after the Closing for any breach of the representations and warranties in §4 above.]
Alternative 2—if the Parties are seeking Limited Indemnification: omit Alternative 1 language above.
(h) Environmental Remedies.
Alternative 1—add the following paragraph if the Parties are seeking Minimal Indemnification:
[Without limiting the generality of (g), above, Buyer hereby waives any right, whether arising at law or in equity, to seek contribution, cost recovery, damages, or any other recourse or remedy from Sellers, and hereby releases Sellers, from any claim, demand, or liability, with respect to any environmental, health, or safety matter relating to the past, current, or future facilities, properties, or operations of Target, its Subsidiaries, and all of their respective predecessors or Affiliates, including any such matter arising under any Environmental Requirements and including any arising under the Comprehensive Environmental Response, Compensation, and Liability Act (‘‘CERCLA’’), any analogous state law, or the common law. Buyer hereby unconditionally agrees to indemnify, defend, and hold harmless Sellers from any and all liability, loss, cost, or expense with respect to any such environmental, health, or safety matter (including any arising under any Environmental Requirements and including CERCLA, any analogous state law, or the common law).]
Alternative 2—add the following paragraph if the Parties are seeking Limited Indemnification:
[Without limiting the generality of (f), above, Buyer understands and agrees that its right to indemnification under §8(b) for breach of the representations and warranties contained in §4(q) hereof shall constitute its sole and exclusive remedy against Sellers with respect to any environmental, health, or safety matter relating to the past, current, or future facilities, properties, or operations of Target, its Subsidiaries, and all of their respective predecessors or Affiliates, including any such matter arising under any Environmental Requirements. Aside from such right to indemnification, Buyer hereby waives any right, whether arising at law or in equity, to seek contribution, cost recovery, damages, or any other recourse or remedy from Sellers, and hereby releases Sellers from any claim, demand, or liability, with respect to any such environmental, health, or safety matter (including without limitation any arising under any Environmental Requirements and including any arising under the Comprehensive Environmental Response, Compensation, and Liability Act (‘‘CERCLA’’), any analogous state law, or the common law). Except as set forth above, Buyer hereby unconditionally agrees to indemnify, defend, and hold harmless Sellers from any and all liability, loss, cost, or expense with respect to any such environmental, health, or safety matter (including any arising under any Environmental Requirements and including CERCLA, any analogous state law, and the common law).]
(i) Recoupment Against Buyer Notes. Any Seller shall have the option of satisfying all or part of such Seller’s indemnity obligation that such Seller may be required to pay under this §8 by notifying Buyer that such Seller is reducing the principal amount outstanding under his, her, or its Buyer Note. This shall affect the timing and amount of payments required under the Buyer Note in the same manner as if Buyer had made a permitted prepayment (without premium or penalty) thereunder.
§9. Termination.
(a) Termination of Agreement. Certain of the Parties may terminate this Agreement as provided below:
(i) Buyer and Requisite Sellers 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 Requisite Sellers at any time prior to the Closing in the event (A) any of Sellers 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 Requisite Sellers at any time prior to the Closing (A) in the event any Seller has breached any material representation, warranty, or covenant contained in this Agreement (other than the representations and warranties in §4 above) in any material respect, Buyer has notified Requisite Sellers of the breach, and the breach has continued without cure for a period of [30 days] after the notice of breach or (B) if the Closing shall not have occurred on or before _______ ____, ________, by reason of the failure of any condition precedent under §7(a) hereof (unless the failure results primarily from Buyer itself breaching any representation, warranty, or covenant contained in this Agreement); and
(iv) Requisite Sellers 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, any Seller has notified Buyer of the breach, and the breach has continued without cure for a period of [30 days] after the notice of breach or (B) if the Closing shall not have occurred on or before _______ ____, ________, by reason of the failure of any condition precedent under §7(b) hereof (unless the failure results primarily from any Seller breaching any representation, warranty, or covenant contained in this Agreement).
(b) Effect of Termination. If any Party terminates this Agreement pursuant to §9(a) above, all rights and obligations of the Parties hereunder shall terminate without any liability of any Party to 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.
§10. Miscellaneous.
(a) Nature of Sellers’ Obligations.
(i) The covenants of each Seller in §2(a) above concerning the sale of his, her, or its Target Shares to Buyer and the representations and warranties of each Seller in §3(a) above concerning the transaction are individual and not joint or several obligations. This means that the particular Seller making the representation, warranty, or covenant shall be solely responsible to the extent provided in §8(b)(ii) above for any Adverse Consequences Buyer may suffer as a result of any breach thereof.
(ii) The remainder of the representations, warranties, and covenants in this Agreement are based on each Seller’s Allocable Portion of any Adverse Consequences Buyer may suffer as a result of any breach thereof as set forth in §8(b)(i).
(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 Buyer and Requisite Sellers; 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 Parties 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) No Code §338 Election. Neither Buyer, Target, nor any of their Affiliates shall make any election under Code §338 with respect to the transactions contemplated by this Agreement.
(e) Refunds and Other Transaction Tax Deduction Benefits. Any Tax refunds that are received by Buyer or Target and its Subsidiaries, and any amounts credited against Tax to which Buyer or Target and its Subsidiaries become entitled, that relate to Tax periods or portions thereof ending on or before the Closing Date and are attributable to Transaction Tax Deductions shall be for the account of Sellers, and Buyer shall pay over to Sellers any such refund or the amount of any such credit within 10 days after receipt thereof or entitlement thereto. In addition, if Buyer, Target, or any of Target’s Subsidiaries realizes any reduction in its liability for Taxes with respect to any taxable period (or portion thereof) ending after the Closing Date resulting, directly or indirectly, from a Transaction Tax Deduction, Buyer shall pay the amount of such reduction to Sellers within 10 days after realizing such reduction. Buyer, Target, or any of Target’s Subsidiaries shall be deemed to realize a reduction in its Taxes as of the date the Tax Return that reflects such reduction is filed[, provided that if any such Tax Return is filed after the applicable filing deadline (without extensions), the amount that Buyer shall be required to pay over to Sellers shall include interest at the rate of [  ]% per annum accruing from such filing deadline to the actual filing date]. Buyer shall use its best efforts to, and cause the Company and its Subsidiaries to, prepare and file all Tax Returns in a manner that maximizes the Tax benefits available as a result of the Transaction Tax Deductions.
(f) Entire Agreement. This Agreement (including the documents referred to herein) constitutes the entire agreement among the Parties and supersedes any prior understandings, agreements, or representations by or among the Parties, written or oral, to the extent they relate in any way to the subject matter hereof.
(g) 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 his, her, or its rights, interests, or obligations hereunder without the prior written approval of Buyer and Requisite Sellers[; 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)].
(h) 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.
(i) 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.
(j) 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 Sellers:	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 Parties notice in the manner herein set forth.
(k) 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 __________.
(l) 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 Requisite Sellers. No waiver by any Party of any provision of this Agreement or any default, misrepresentation, or breach of warranty or covenant hereunder, whether intentional or not, shall be valid unless the same shall be in writing and signed by the Party making such waiver, nor shall such waiver be deemed to extend to any prior or subsequent default, misrepresentation, or breach of warranty or covenant hereunder or affect in any way any rights arising by virtue of any prior or subsequent such occurrence.
(m) 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.
(n) Expenses. Each Buyer, Seller, 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 Sellers, 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 gain resulting from the sale of the Target Shares hereunder) 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 shall, 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.
(o) 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.
(p) Incorporation of Exhibits, Annexes, and Schedules. The Exhibits, Annexes, and Schedules identified in this Agreement are incorporated herein by reference and made a part hereof.
(q) Governing Language. This Agreement has been negotiated and executed by the Parties in English. In the event any translation of this Agreement is prepared for convenience or any other purpose, the provisions of the English version shall prevail.
[(r) Tax Disclosure Authorization. Notwithstanding anything herein to the contrary, the Parties (and each Affiliate and Person acting on behalf of any Party) agree that each Party (and each employee, representative, and other agent of such Party) may disclose to any and all Persons, without limitation of any kind, the tax treatment and tax structure (as such terms are used in regulations promulgated under Code §6011) of the transactions contemplated by this agreement; [provided, however, that such disclosure may not be made until the earlier of date of (A) public announcement of discussions relating to the transaction, (B) public announcement of the transaction, or (C) execution of an agreement (with or without conditions) to enter into the transaction.] This authorization is not intended to permit disclosure of any other information including (without limitation) (A) any portion of any materials to the extent not related to the transaction’s tax treatment or tax structure, (B) the identities of participants or potential participants, (C) the existence or status of any negotiations, (D) any pricing or financial information (except to the extent such pricing or financial information is related to the transaction’s tax treatment or tax structure), or (E) any other term or detail not relevant to the transaction’s tax treatment or the tax structure.]
* * * * *

IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on [as of] the date first above written.
[BUYER]
By: ___________________________
Title: __________________________
[SELLER #1 (an entity)]
By: ___________________________
Title: __________________________
[SELLER #2 (an entity)]
By:___________________________
Title: __________________________
_______________________________
[SELLER #3 (an individual)]