8.02[2] Sample Acquisition Agreement for Merging Two Law Firms
THIS ACQUISITION AGREEMENT, dated as of __________ __, 20__ (this "Agreement"),
is by and among (a) ___________________ LLP, a _________________ limited
liability partnership (the "Buyer"), (b) _________________ L.L.P., a
___________________ limited liability partnership (the "Seller"), and (c) the
equity partners of the Seller listed on the signature pages hereto (each an
"Equity Partner," collectively the "Equity Partners," and together with the
Seller, the "Selling Group").
WHEREAS, the Seller is engaged in the practice of law (the "Business"), and the
Buyer desires to purchase certain assets utilized in the operation of the
Business and owned by the Seller, and the Seller desires to sell such assets to
the Buyer; and
WHEREAS, the Equity Partners constitute all of the equity partners of the
Seller, and as such wish the Seller to consummate the transactions contemplated
by this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and agreements set forth
herein, the Buyer and each member of the Selling Group agree as follows: Article 1
Purchase and Sale1.1 Acquired Assets. Subject to the terms and conditions set forth in this
Agreement, at the Closing, the Seller shall sell, assign, transfer and deliver
to the Buyer, and the Buyer shall purchase, acquire and take assignment and
delivery of, the following assets of the Seller (all of which assets are
hereinafter referred to collectively as the "Acquired Assets"):
(a) any and all equipment, installations, furniture, fixtures,
supplies, materials and other personal property used in connection with the
Business, including, without limitation, those items described on Schedule
1.1(a) (the parties hereto agreeing that each reference to a Schedule herein,
unless otherwise indicated, shall be a reference to those disclosure schedules
prepared by the parties, dated as of the date hereof, and delivered separately),
with such additions thereto and deletions therefrom as may hereafter arise in
compliance with Article 7 hereof and in the ordinary course of the Business
prior to the Closing (the "Equipment"); (b) all of the Seller's title to, interest in and rights under the
leases of real property described on Schedule 1.1(b) (the "Real Property
Leases"), together with all leasehold improvements on the real property leased thereby; (c) all of the Seller's title to, interest in and rights under the
leases of personal property described on Schedule 1.1(c) (the "Personal Property Leases");
(d) all of the Seller's title to, interest in and rights under the
contracts with clients listed on Schedule 1.1(d) (the "Client Contracts"),
including all rights with respect to work in process with respect to any Client
Contracts; (e) all of the Seller's rights (i) under the contracts and
agreements described on Schedule 1.1(e), for the purchase or sale of utilities,
materials and services utilized in the operation of the Business, and (ii) under
the contingent fee agreements referred to in Schedule 4.10 (the contracts and
agreements referred to in this paragraph (e) being referred to collectively as
the "Other Contracts");(f) all of the Seller's transferable rights under the operating
authorities, licenses, permits and approvals, both governmental and private,
described on Schedule 1.1(f) (the "Permits");
(g) all of the Seller's accounting books, records and ledgers
relating to the Business, all employment and personnel records for all Assumed
Employees (as defined in Section 8.1 hereof) and all other documents and records
relating to the Acquired Assets.
(h) all of the Seller's accounts receivable, notes receivable and
miscellaneous receivables that relate to the Business (the "Accounts
Receivable");
(i) all of the Seller's work in process that relates to the Business
(the "Work in Process");
(j) all of the Seller's rights and interest in the bank accounts
listed on Schedule 1.1(j)(A), and all of the Seller's cash, commercial paper,
cash equivalents and other investments outstanding on the Closing Date
immediately prior to the consummation of the transactions contemplated herein
(with each such investment outstanding on ___________ 20__, being listed on
Schedule 1.1(j)(B)); (k) all of the Seller's rights with respect to all trademarks, trade
names, trade secrets, corporate names, copyrights, designs, patents, licenses
(as licensee or licensor), applications with respect to the foregoing, technical
information, information relating to clients (including all client files),
telephone numbers, computer software programs, computer data bases and other
intangible assets utilized by the Seller in conjunction with the Business,
including, without limitation, those described on Schedule 1.1(k) (the
"Intangibles"); (l) all of the Seller's rights under the key man life insurance
policies described on Schedule 1.1(l) (the "Life Insurance Policies") (m) all of the Seller's prepaid expenses and deposits relating to
the Business; and
(n) all other assets of the Seller, whether tangible or intangible,
that are used in conjunction with the Business, other than the Excluded Assets.
1.2 Excluded Assets. Notwithstanding the foregoing, the Seller is not
selling and the Buyer is not purchasing, pursuant to this Agreement, and the
term "Acquired Assets" shall not include, any of the following assets (the
"Excluded Assets"):
(a) the furniture and other personal property described on Schedule
1.2(a), owned by the Equity Partners, as set forth on such Schedule;
(b) the Seller's rights under the employee benefit plans described
on Schedule 1.2(b) and all related plan assets and plan sponsorships;
(c) the Seller's rights (if any) to the name "_______________
L.L.P." (d) the consideration received by the Seller pursuant to this
Agreement and the rights of the Seller under this Agreement; (e) the assets described on Schedule 1.2(e); and
(f) all goodwill of the Business.
Article 2
Assumption of Certain Obligations; Additional Payments
2.1 Assumed Obligations; Excluded Liabilities.
(a) At the Closing, as partial consideration for the Acquired
Assets, the Buyer shall assume and agree to pay, perform, fulfill and discharge
the following obligations of the Seller (the "Assumed Obligations"):
(i) all obligations and liabilities which arise after the
Closing and which relate to events which transpire subsequent to the Closing
under the Personal Property Leases, Real Property Leases, Life Insurance
Policies, Client Contracts and Other Contracts (collectively, the "Assumed
Contracts"), but excluding the Excluded Liabilities (as defined in Section
2.1(b) below); (ii) all other obligations and liabilities (other than
Excluded Liabilities) incurred by the Seller in connection with the Business,
including trade payables, and either (a) listed on Schedule 2.1(a)(ii) or (b)
incurred and payable in the ordinary course of operation of the Business and in
compliance with Article 7 (such compliance with Article 7 to be determined as if
this Agreement had been executed on _____________ ___, 20__, in each case to the
extent (I) not paid or performed prior to Closing, (II) not outstanding beyond
its normal payment cycle, and (III) not an Excluded Liability; (iii) all liabilities of the Seller under that certain
Standby Credit and Term Loan Agreement and Letter of Credit Reimbursement
Agreement, dated as of _____________ as in effect on the date hereof, between
the Seller and ____________ Bank, up to but not exceeding the aggregate
principal amount of $_____________, plus interest accrued from _____________ __,
20__, to the Closing (the "Bank Obligation"); and (iv) all liabilities of the Seller owing to
_____________________ in connection with the surrender by the Seller of the
________________ floor of that certain real property located at
___________________________, up to but not exceeding the aggregate amount of
_______________ (the "Real Estate Broker Obligation").
(b) Anything in this Agreement to the contrary notwithstanding,
other than as specifically set forth in Section 2.1(a) above, the Selling Group
agrees and acknowledges that the Buyer is not assuming hereunder, and shall not
be deemed to have assumed, any liabilities or obligations of the Seller
whatsoever, known or unknown, fixed or contingent, including, without
limitation, the following liabilities and obligations (collectively, the
"Excluded Liabilities"):
(i) any and all liabilities and obligations arising out of the
operation of the Business prior to the Closing; (ii) any and all liabilities or obligations of the Seller for
any Tax (as defined in Article 12 hereof) in respect of any period ending prior
to or on the Closing Date, including all liabilities of the Selling Group for
any Tax attributable to or arising from the transactions contemplated herein; and (iii) any and all liabilities or obligations resulting from or
arising out of the complaint filed by ______________ against the Seller on
________________ (the "Malpractice Claim").
2.2 Additional Payments. As further consideration for the Acquired Assets,
the Buyer agrees to pay to the Seller the following amounts, subject to the
following terms and conditions:
(a) The Buyer agrees to pay to the Seller the total amount of
$____________ in sixteen (16) installments. The first such installment shall be
due on the Closing Date and shall be in the amount of $_____________. Subsequent
installments shall be due on the last business day of each December, March, June
and September thereafter and shall be in the amount of $______________, the last
such installment being due on _________, 2005. The Buyer shall be entitled, at
its option, to prepay any such installment. The Buyer's obligation to make the
installment payments referred to in this Section 2(a) shall, at the option of
the Buyer, be suspended in the event that: (i) a former partner of the Seller
commences a suit, action, arbitration or other proceeding, or actively pursues a
suit, action, arbitration or other proceeding already commenced, against the
Seller, any equity partner of the Seller or the Buyer; or (ii) the Seller's
former partners fail to exercise their fiduciary responsibility to assist in the
collection of Accounts Receivable and Work in Process with respect to clients
for which they had direct responsibility as referred to in Sections 1.1(h) and
1.1(i). Notwithstanding the foregoing, the Buyer shall pay such portion of any
suspended payment to the Seller as is needed by the Seller to pay 80% of its
reasonable costs in responding to any such suit, action, arbitration or other
proceeding. No failure or delay on the part of the Buyer to exercise any right
under this Section 2(a) shall operate as a waiver thereof; nor shall any single
or partial exercise thereof preclude any other or further exercise thereof or
the exercise of any other right, power or privilege.(b) The Buyer agrees to reimburse the Seller for actual litigation
expenses and costs incurred (and paid) by the Seller or any partner thereof
after the Closing in defending the Malpractice Claim, in an amount not to exceed
the lesser of (i) the remaining deductible owing by the Seller under the
___________ Professional Liability Policy (Policy No. __________) issued by
_______________________ with respect to the Malpractice Claim and (ii)
$_____________ (the "Malpractice Payment"). (c) The Buyer agrees to pay to the Seller after the Closing Date,
upon notice from the Seller, an amount equal to the difference between (i) the
amount necessary in order to satisfy the Seller's obligations with respect to
accrued vacation and overtime for the period ending on ________________, 2001
and required tax withholdings with respect thereto (the "Accrued Vacation
Obligation") which amount shall not exceed $_______________, which the Seller
agrees to use to satisfy the Accrued Vacation Obligation.
(d) The Buyer agrees to pay to the Seller on the Closing Date
$__________ which the Seller agrees to use to satisfy ______________ State and
local sales tax on the Acquired Assets.
2.3 Allocation. The Assumed Obligations and the additional payments set
forth in Section 2.2 above shall be allocated among the Acquired Assets in the
manner set forth on Schedule 2.3. Notwithstanding anything in this Agreement
(including Schedule 2.3) to the contrary, the parties hereto acknowledge and
agree that no consideration is being paid by the Buyer for the assignment by the
Seller to the Buyer of the Real Property Leases. Article 3Closing
3.1 Time and Place. The closing of the transfer and delivery of all
documents and instruments necessary to consummate the transactions contemplated
by this Agreement (the "Closing") shall be held at the offices of the Seller in
_______________, at 11:00 a.m. on a mutually acceptable date, no later than
________________, 2001. The date on which the Closing is actually held hereunder
is sometimes referred to herein as the "Closing Date."
3.2 Transactions at Closing. At the Closing:
(a) The Seller shall duly execute and deliver to the Buyer a bill of
sale (in the form of Exhibit A hereto) and such other instruments of assignment
and transfer with respect to the Acquired Assets as the Buyer may reasonably
request and as may be necessary to vest in the Buyer good and marketable title
to all of the Acquired Assets, in each case subject to no Encumbrance (as
defined in Section 4.9 hereof) except for those Encumbrances listed on Schedule 4.9(b).
(b) The Buyer shall duly execute and deliver to the Seller an
instrument of assumption in the form of Exhibit B hereto and such other
documents with respect to the Assumed Obligations as the Seller may reasonably request. (c) The Seller shall deliver or cause to be delivered to the Buyer a
consent to assignment (in form and substance reasonably satisfactory to the
Buyer) from each of the landlords party to the Real Property Leases. (d) The Seller shall deliver or cause to be delivered to the Buyer
(i) assignments in favor of the Buyer of (i) each Assumed Contract and (ii) such
consents, in form and substance reasonably satisfactory to the Buyer, by each
party to any of such leases, contracts, agreements or instruments under which
the transactions contemplated hereby would constitute a material default, would
accelerate obligations of the Seller or the Buyer or would permit cancellation
thereof, as are necessary to assure the Buyer the full benefit of the same. (e) The Seller shall deliver to the Buyer evidence that the Seller
has purchased prior to or at the Closing "Tail" Professional Liability Insurance
for a coverage period of three (3) years after the Closing Date, in amount and
in form and substance satisfactory to the Buyer. (f) The Buyer and each of the Equity Partners and each of the
contract partners of the Seller listed on Schedule 3.2(f) shall execute and
deliver an agreement substantially in the form previously agreed to, relating to
their status as a Partner of or as Of Counsel to the Buyer (as the case may be)
from and after the Closing Date. Article 4
Representations and Warranties of the Selling Group
Each member of the Selling Group, jointly and severally, represents and
warrants to the Buyer as follows (the Buyer acknowledging that each Equity
Partner is only making the representations and warranties set forth in this
Article 4 to the best of such Person's (as defined in Article 12 hereof)
knowledge):
4.1 Organization of Seller; Authority. The Seller is a limited liability
partnership duly formed, validly existing and in good standing under the laws of
the State of _______________. The Seller is duly qualified and in good standing
as a foreign limited liability partnership in all jurisdictions in which the
character of the properties owned or leased or the nature of the activities
conducted by it makes such qualification necessary. Attached hereto as Exhibit
C-1 is a complete and correct copy of the Seller's Partnership Agreement, as
amended to date and as in effect on the date hereof (the "Seller's Partnership
Agreement"). Attached hereto as Exhibit C-2 is a complete and correct copy of
the Seller's Business Certificate for Partners, as amended to date and as in
effect on the date hereof (together with the Seller's Partnership Agreement, the
"Governing Documents"). The Seller has no equity or other ownership interest in
any Person. The Seller has all requisite power and authority to own and hold the
Acquired Assets owned or held by it and to carry on the Business as such
business is now conducted. The Seller has all requisite power and authority to
execute and deliver this Agreement and the other documents, instruments and
agreements contemplated hereby (collectively, the "Transaction Documents") to
which the Seller is a party, and to carry out all actions required of the Seller
pursuant to the terms of the Transaction Documents.4.2 Partnership Approval; Binding Effect. The Seller has obtained all
necessary authorizations and approvals required for the execution and delivery
of the Transaction Documents to which it is a party and the consummation of the
transactions contemplated hereby and thereby. This Agreement has been duly
executed and delivered by the Seller and constitutes the legal, valid and
binding obligation of the Seller enforceable against the Seller in accordance
with its terms, except the enforceability thereof may be limited by any
applicable bankruptcy, reorganization, insolvency or other laws affecting
creditors' rights generally or by general principles of equity.
4.3 Non-Contravention. Except as set forth in Schedule 4.3, the execution
and delivery by the Seller of the Transaction Documents to which it is a party
and the consummation of the transactions contemplated hereby and thereby, and
the performance of the obligations hereunder and thereunder, by each of the
Seller and the Buyer will not (a) violate or conflict with any provision of the
Governing Documents or (b) constitute a violation of, or be in conflict with, or
constitute or create a default under, or result in the creation or imposition of
any Encumbrance upon any property of the Seller (including, without limitation,
any of the Acquired Assets) pursuant to (i) any agreement or instrument to which
the Seller is a party or by which the Seller or any of its properties or assets
(including, without limitation, any of the Acquired Assets) is bound or to which
the Seller or any of its properties or assets is subject, or (ii) any law
(whether statutory or common), judgment, decree, order, regulation or rule of
any court or governmental or regulatory authority.
4.4 Governmental Consents. Except as set forth on Schedule 4.4, no
consent, approval or authorization of, or registration, qualification or filing
with, any governmental agency or authority is required for the execution and
delivery by the Seller of the Transaction Documents to which it is a party or
for the consummation by the Seller of the transactions contemplated hereby or thereby.
4.5 Financial Statements. The Seller has delivered the following financial
statements (the "Financial Statements") to the Buyer: (a) the audited balance
sheet of the Seller as of each of December 31, 20__ and December 31, 20__ (the
balance sheet as of December 31, 20__ being referred to herein as the "Audited
Balance Sheet"), and the related statements of revenue collected, expenses paid
and partners' capital and of cash flows of the Seller for each of the fiscal
years then ended, and (b) the unaudited balance sheet of the Seller as of
September 30, 20__ the related statements of revenue collected, expenses paid
and partners' capital and/or cash flows of the Seller for the nine (9) month
period then ended (collectively, the "Interim Financials"). Each of the
Financial Statements are true and correct and have been prepared in accordance
with generally accepted accounting principles, other than that the Financial
Statements have been prepared on a cash receipts and disbursements basis (except
for depreciation and amortization which is recorded on an accrual basis) and
subject, in the case of the Interim Financials, to the absence of footnotes and
to ordinary year-end audit adjustments; each of such balance sheets fairly
presents the financial condition of the Seller as of its respective date; and
such statements of revenue collected, expenses paid and partners' capital and of
cash flows fairly present the revenue collected, expenses paid and changes in
partners' capital and in cash flows for the periods covered thereby.
4.6 Absence of Certain Changes. Since September 30, 20__, there has not
been any material adverse change in the assets, liabilities, income or business
of the Seller or in its relationships with its suppliers, clients or lessors.
4.7 Litigation, Etc. Except as set forth on Schedule 4.7, no action, suit,
proceeding or investigation is pending or, to the knowledge of any member of the
Selling Group, threatened, relating to or affecting any of the Acquired Assets,
the Business, the Seller or any of its partners, or which questions the validity
of any of the Transaction Documents or challenges any of the transactions
contemplated hereby or thereby.
4.8 Conformity to Law. Except as set forth on Schedule 4.8, the Seller has
complied and is in compliance in all material respects with (a) all laws,
statutes, governmental regulations and all judicial or administrative tribunal
orders, judgments, writs, injunctions, decrees or similar commands applicable to
the Seller, the Business, or to any of the Acquired Assets (including, without
limitation, ERISA (as defined in Section 4.12 hereto) and any labor,
environmental, occupational health or other law, regulation or ordinance) and
(b) all unwaived terms and provisions of all contracts and agreements to which
the Seller is a party or by which the Seller or any of the its assets or
properties (including, without limitation, the Acquired Assets) is subject.
4.9 Title to Acquired Assets. Except as noted on Schedule 4.9(a), the
Seller is the lawful owner of and has good and valid record and marketable title
to all of the Acquired Assets, and has the full right to sell, convey, transfer,
assign and deliver the Acquired Assets, without the need to obtain the consent
or approval of any third party. Except as listed in Schedule 4.9(b), all of the
Acquired Assets are free and clear of any security interests, liens, claims,
charges, options, mortgages, debts, leases (or subleases), conditional sales
agreements, title retention agreements, encumbrances of any kind, material
defects as to title or restrictions against the transfer or assignment thereof
(collectively, "Encumbrances").
4.10 Contracts. Other than for the Excluded Assets, the contracts listed
on Schedule 1.1(b) constitute all of the leases of real property and the
contracts listed on Schedule 1.1(c) constitute all of the leases of personal
property to which the Seller is a party or which were entered into by any other
Person in conjunction with the Business. Other than for the Excluded Assets,
Schedule 4.10 lists all of the contracts and agreements (both written and oral)
between the Seller and each of its employees, and Schedule 1.1(d) lists all of
the contracts and agreements (both written and oral) between the Seller and each
of its clients. Schedule 4.10 sets forth a complete and accurate list of all
other material contracts and agreements (both written and oral) to which the
Seller is a party or by which the Seller is bound or to which the Seller or any
of the Acquired Assets is subject. The Seller has delivered to the Buyer true,
correct and complete copies of all contracts listed on the Schedules, together
with all modifications and supplements thereto. Each of the contracts listed on
the Schedules is in full force and effect, the Seller is not in breach of any of
the provisions of any such contract, nor, to the knowledge of the Selling Group,
is any other party to any such contract in default thereunder, nor does any
event or condition exist which with notice or the passage of time or both would
constitute a default thereunder.
4.11 Compensation of and Contracts with Partners, Associates and
Employees. Schedule 4.11 sets forth a complete and accurate list of (a) each
equity partner, contract partner, associate and employee of the Seller an the
rate, character and amount of the gross compensation (other than contributions
made by the Seller to or on behalf of such Persons (i) to the ______________ LLP
Defined Benefits Plan or (ii) in connection with the Seller's medical, life
insurance or disability benefit plans) paid to each such Person for the fiscal
year ended December 31, _____ and (b) the rate, character and amount of such
compensation paid to each such Person thereafter until and including, September
30, 2001. Except as listed in Schedules 1.2(b) and 4.10 and Exhibit C, the
Seller has no agreement, written or oral, with any currently active or former
equity partner, contract partner, associate or employee, including any agreement
to provide any bonus or benefit to any such Person. Except as set forth on
Schedule 4.11, since September 30, 2001, the Seller has not (a) increased the
rate or character of the compensation paid to any of its equity partners,
contract partners, associates or employees, or (b) made any bonus or other
payment, other than base salary and payments of insurance benefits, or become
obligated to make any such payments, to any associate or other employee of the
Seller. Except as set forth on Schedule 4.11, (a) the Seller has no loans or
advances to any of its current or former equity partners, contract partners,
associates or employees outstanding, (b) the Seller owes no money to (i) any of
its former partners under the terms of the Seller's Partnership Agreement or
otherwise or (ii) to any of its former associates, employees, agents or
representatives and (c) since December 31, _____, the Seller has not made any
distributions to any of its equity partners or contract partners.4.12 Employee Benefit Plans.(a) Except as set forth on Schedule 4.12, neither the Seller nor any
member of a group described in Section 414(b) or 414(c) of the United States
Internal Revenue Code of 1986, as amended (the "Code"), of which the Seller is a
member (a "Related Entity") maintains or has any obligation to make
contributions to any employee benefit plan (an "ERISA Plan") within the meaning
of Section 3(3) of the United States Employee Retirement Income Security Act of
1974, as amended ("ERISA"), or any other retirement, profit sharing, deferred
compensation, stock option, bonus, share appreciation right, severance, group or
individual health, dental, medical, life insurance, survivor benefit or other
benefit program (a "Non-ERISA Plan") for partners, associates, employees or
consultants, current or former. The Seller has heretofore delivered to the Buyer
true, correct and complete copies of each ERISA Plan and of each Non-ERISA Plan
and (i) any associated trust, custodial, insurance or service agreements, (ii)
any annual report, actuarial report or disclosure materials (including any
summary plan descriptions) submitted to any governmental agency or distributed
to participants or beneficiaries thereunder in the current or either of the two
(2) preceding calendar years and (iii) the most recently delivered IRS
determination letter, and any other governmental advisory opinions or rulings
applicable to such Plan. All such ERISA Plans and Non-ERISA Plans have been
maintained and operated in accordance in all material respects with all federal,
state and local laws and regulations applicable to such plans, and the terms and
conditions of the respective plan documents. (b) Neither the Seller nor any Related Entity has engaged in any
transaction in connection with which it could be subject to either a civil
penalty assessed pursuant to Section 502(i) of ERISA, or a tax imposed by
Section 4975 of the Code or any tax or penalty under any federal, state or local
laws applicable to any Non-ERISA Plan. Neither the Seller nor any Related Entity
has ever maintained or contributed to any plan subject to Title IV of ERISA or
to any multiemployer plan as defined in Section 3(37) of ERISA. (c) Full payment has been made of all amounts that the Seller or any
Related Entity is required, under the terms of each ERISA Plan and each Non-
ERISA Plan, or pursuant to applicable federal, state or local law, to have paid
as contributions to such ERISA Plan or Non-ERISA Plan (as the case may be) as of
the last day of the most recent fiscal year of such ERISA Plan or Non-ERISA Plan
(as the case may be) ended prior to the date hereof, and no accumulated funding
deficiency (as defined in Section 302 of ERISA and Section 412 of the Code),
whether or not waived, exists with respect to any ERISA Plan.(d) Except as set forth on Schedule 412,
(i) no ERISA Plan or Non-ERISA Plan of the Seller provides
welfare benefits subsequent to termination of employment to partners, associates
or employees or their respective beneficiaries (except to the extent required by
applicable state insurance laws and Title I, Part 6 of ERISA and Section 4980(b)
of the Code); (ii) no benefits due under any ERISA Plan or Non-ERISA Plan of
the Seller have been forfeited subject to the possibility of reinstatement
(which possibility would still exist on or after the Closing Date); and (iii) the Seller has not undertaken to maintain any ERISA Plan
or Non-ERISA Plan for any period of time and each such Plan is terminable at the
sole discretion of the sponsor thereof, subject only to such constraints as may
be imposed by applicable law.
(e) Effect of Transactions. The execution of this Agreement and the
consummation of the transactions contemplated herein will not result in any
payment (whether of severance pay or otherwise) becoming due from any ERISA Plan
or Non-ERISA Plan of the Seller to any current or former director, officer,
consultant or employee of the Seller or result in the vesting, acceleration of
payment or increases in the amount of any benefit payable to or in respect of
any such current or former director, officer, consultant or employee.
4.13 Labor Relations. Except as set forth on Schedule 4.13, no one has
petitioned within the last three (3) years, and no one is now petitioning, for
union representation of any of the Seller's employees. Except as set forth on
Schedule 4.13, no labor organization (whether certified or not) represents or
purports to represent any employees of the Seller.
4.14 No Undisclosed Liabilities. Except to the extent (a) reflected or
reserved against in the balance sheet of the Seller as of September 30, 20__,
delivered to the Buyer pursuant to Section 4.5 above, (b) incurred in the
ordinary course of operations of the Business after the date of such balance
sheet and either discharged prior to Closing or described on Schedule 4.14 or
(c) described on any other Schedule, the Seller has no liabilities or
obligations of any nature, whether accrued, absolute, contingent or otherwise
(including, without limitation, as guarantor or otherwise with respect to
obligations of others), other than obligations that would not be required to be
reflected or reserved against on a balance sheet of the Seller prepared in
accordance with generally accepted accounting principles, taking into account
the fact that the Seller's Financial Statements have been prepared on a cash
receipts and disbursements basis.
4.15 Tax Returns. The Seller has filed all Tax returns and reports which
are required to be filed with any foreign, federal, state or local governmental
authority or agency, and has paid, or made adequate provision for the payment
of, all assessments received and all Taxes which have or may become due under
applicable foreign, federal, state or local governmental law or regulations with
respect to all periods ending prior to or on the Closing Date. The Selling Group
knows of no additional assessments since the date of the most recently filed tax
returns and reports. As of the date hereof, there is no outstanding sales or use
tax owing or asserted to be owing by the Seller to any Person. Schedule 4.15
hereto lists all audits undertaken by any Tax authority against the Seller or
the Business at any time during the prior ten (10) years and indicates which of
these audits have been closed.4.16 Solvency. On the date hereof, the Seller is not insolvent (as such
term is defined in Section 101(32) of Title 11 of the United States Code), has
sufficient cash flow to enable it to pay its debts as they mature and does not
have unreasonably small capital with which to engage in its anticipated
business, and as of the Closing, both before and after giving effect to the
transactions contemplated hereby, the Seller shall not be insolvent, shall have
sufficient cash flow to enable it to pay its debts as they mature and shall not
have unreasonably small capital with which to engage in its anticipated
business. Each of the parties hereto acknowledge and agree that (i) the Seller,
pursuant to the terms hereof, will receive "reasonably equivalent value" (as
such term is used in 11 U.S.C. § 548) from the Buyer in consideration for the
Acquired Assets and (ii) the transactions contemplated hereby have been
negotiated and documented on an arms length basis.
4.17 Disclosure. No representation or warranty by the Seller in this
Agreement or in any exhibit, schedule, written statement, certificate or other
document and no other information concerning the Seller, the Business or any of
the Seller's partners or clients or the Acquired Assets (including, without
limitation, any financial information of the Seller or the Business), delivered
or to be delivered to the Buyer at any time contained or will contain any untrue
statement of a material fact or omitted or will omit to state a material fact
required to be stated therein or necessary to make the statements contained
therein not misleading at the time of delivery thereof. All copies of contracts,
agreements and instruments evidencing the Assumed Obligations, or entered into
by the Seller in conjunction therewith, delivered to the Buyer by the Seller
pursuant to Section 9.4 below are true and correct as of the Closing Date.
4.18 Broker. None of the members of the Selling Group has retained,
utilized or been represented by any other broker, agent, finder or intermediary
in connection with the negotiation or consummation of the transactions
contemplated by this Agreement.
4.19 Conditions Precedent to Buyer's Obligations. The conditions set forth
in Sections 9.1, 9.2, 9.3 and 9.5 below have been satisfied as of the Closing Date. Article 5
Representations and Warranties of the Equity Partners
Each of the Equity Partners severally represents and warrants to the Buyer
as follows:
5.1 Authority. Such Equity Partner has all requisite power, authority and
legal competence to execute and deliver this Agreement and the other Transaction
Documents to which such Person is a party and to carry out all actions required
of such Person pursuant to the terms of the Transaction Documents.
5.2 Bar Membership. Such Equity Partner is a member in good standing of
the bar associations of the jurisdictions set forth opposite his or her name on
Schedule 5.2, and all dues and fees owing on the date hereof with respect
thereto have been paid in full.
5.3 Binding Effect. This Agreement has been duly executed and delivered by
such Equity Partner and constitutes the legal, valid and binding obligation of
such Person enforceable against him or her (as the case may be) in accordance
with its terms, except the enforceability thereof may be limited by any
applicable bankruptcy, reorganization, insolvency or other laws affecting
creditors' rights generally or by general principles of equity.
5.4 Non-Contravention. The execution and delivery by such Equity Partner
of the Transaction Documents to which he or she is a party and the consummation
of the transactions contemplated hereby and thereby, and the performance by such
Equity Partner of his obligations hereunder and thereunder will not (a) violate
or conflict with any provision of the Governing Documents, or (b) constitute a
violation of, or be in conflict with, or constitute or create a default under,
or result in the creation or imposition of any Encumbrance upon any property of
either the Seller (including, without limitation, any of the Acquired Assets) or
such Equity Partner pursuant to (i) any agreement or instrument to which either
of them is a party or by which either of them or any of their assets or
properties (including, without limitation, any of the Acquired Assets) is bound
or to which either of them or any of such assets or properties is subject, or
(ii) any law (whether statutory or common), judgment, decree, order, regulation
or rule of any court or governmental or regulatory authority.
5.5 Tax Returns. Such Equity Partner has filed all Tax returns and reports
which are required to be filed (taking into account permissible extensions) with
any foreign, federal, state or local governmental authority or agency, and has
paid, or made adequate provision for the payment of, all assessments received
and all Taxes which have or may become due under applicable foreign, federal,
state or local governmental law or regulations with respect to all periods
ending prior to or on the Closing Date. Such Equity Partner knows of no
additional assessments since the date of such returns and reports.
5.6 Conformity in Debt Documents. Except as set forth on Schedule 5.6,
such Equity Partner has complied in all material respects with, and is in
compliance in all material respects with, all unwaived terms and provisions of
all contracts, agreements, mortgages and indentures evidencing indebtedness
(collectively, with respect to each Equity Partner, "Debt Documents") to which
such Equity Partner is a party or by which such Equity Partner or any of his or
her properties or assets is subject, and to the best knowledge of such Equity
Partner, no other Person party to any of the Debt Documents has, or threatened
to, declare a default thereunder or accelerate the indebtedness evidenced thereby.
5.7 Litigation, Etc. Except as set forth on Schedule 5.7, no action, suit,
proceeding or investigation is pending or, to the knowledge of such Equity
Partner threatened, relating to or affecting such Equity Partner or any of his
or her assets or properties. Except as set forth on Schedule 5.7, there are no
outstanding judgments against such Equity Partner or outstanding judgment liens
on such Person's properties or assets.
5.8 Disclosure. No representation or warranty by such Equity Partner in
this Agreement or in any exhibit, schedule, written statement, certificate or
other document delivered or to be delivered to the Buyer at any time contained
or will contain any untrue statement of a material fact or omitted or will omit
to state a material fact required to be stated therein or necessary to make the
statements contained therein not misleading at the time of delivery thereof. Article 6
Representations and Warranties of the BuyerThe Buyer represents and warrants to the Selling Group as follows:
6.1 Organization of Buyer; Authority. The Buyer is a limited liability
partnership duly organized, validly existing and in good standing under the laws
of the State of _____________. The Buyer has all requisite power and authority
to execute and deliver the Transaction Documents to which it is a party and to
carry out all of the actions required of it pursuant to the terms of such
Transaction Documents.
6.2 Corporate Approval; Binding Effect. The Buyer has obtained all
necessary authorizations and approvals required for the execution and delivery
of the Transaction Documents to which it is a party and the consummation of the
transactions contemplated hereby and thereby. This Agreement has been duly
executed and delivered by the Buyer and constitutes the legal, valid and binding
obligation of the Buyer, enforceable against the Buyer in accordance with its
terms, except as enforceability thereof may be limited by any applicable
bankruptcy, reorganization, insolvency or other laws affecting creditors' rights
generally or by general principles of equity.
6.3 Non-Contravention. The execution and delivery by the Buyer of the
Transaction Documents to which it is a party and the consummation by the Buyer
of the transactions contemplated hereby and thereby will not (a) violate or
conflict with any provisions of the Partnership Agreement of the Buyer, as
amended to date, or (b) constitute a violation of, or be in conflict with,
constitute or create a default under, or result in the creation or imposition of
any lien upon any property of the Buyer pursuant to (i) any agreement or
instrument to which the Buyer is a party or by which the Buyer or any of its
assets or properties is bound or to which the Buyer or any of its assets or
properties is subject, or (ii) any statute, judgment, decree, order, regulation
or rule of any court or governmental authority to which the Buyer is subject.
6.4 Financial Statements. The Buyer has delivered the following financial
statements to the Seller: the balance sheet of the Buyer as of December 31, 20__
and the related statements of income and expenses of the Buyer for the fiscal
year then ended. Each of such financial statements have been reviewed by
_________________ LLP in accordance with Statements on Standards for Accounting
and Review Services issued by the American Institute of Certified Public
Accountants, are true and correct and have been prepared on the modified cash
basis of accounting (subject to ordinary year-end audit adjustments); such
balance sheet fairly presents the financial condition of the Buyer as of its
date; and such statements of income and expenses fairly presents the results of
operations for the period covered thereby.
6.5 Absence of Certain Changes. Since December 31, 20__ there has not been
any material adverse change in the assets, liabilities, income or business of
the Buyer or in its relationships with its suppliers, clients or lessors.
6.6 Governmental Consents. Except as set forth in Schedule 6.6, no
consent, approval or authorization of, or registration, qualification or filing
with, any governmental agency or authority is required for the execution and
delivery by the Buyer of the Transaction Documents to which it is a party or for
the consummation by the Buyer of the transactions contemplated hereby or thereby.
6.7 Broker. The Buyer has not retained, utilized or been represented by
any broker, agent, finder or other intermediary in connection with the
negotiation or consummation of the transactions contemplated by this Agreement.
6.8 Conditions Precedent to Seller's Obligations. The conditions set forth
in Sections 10.1, 10.2 and 10.3 below have been satisfied as of the Closing Date. Article 7
Conduct of Business by Seller Pending Closing
The Seller covenants and agrees that, from and after the date of this
Agreement and until the Closing, except as otherwise specifically consented to
or approved by the Buyer in writing:
7.1 Carry on in Regular Course. The Seller shall maintain the Acquired
Assets in good operating condition and repair, and make all necessary renewals,
additions and replacements thereto, and shall carry on the Business diligently
and substantially in the same manner as heretofore and in compliance in all
material respects with all laws, statutes, regulations and ordinances applicable
to the Seller, the Business or any of the Acquired Assets, and shall not make or
institute any unusual or novel methods of management, accounting or operation.
7.2 No General Increases. The Seller shall not grant any general or
uniform increase in the rates of pay of partners, associates or employees of the
Seller, nor grant any general or uniform increase in the benefits under any
bonus or pension plan or other contract or commitment to, for or with any such
partners, associates or employees; and the Seller shall not increase the
compensation payable or to become payable to its partners, associates, employees
or agents, or increase any bonus, insurance, pension or other benefit plan,
payment or arrangement made to, for or with any such partners, associates,
employees or agents.
7.3 No Increase in Distributions. The Seller shall not declare or make any
distribution in respect of any partnership interests of the Seller other than in
the ordinary course of operations of the Business and in amounts consistent with
(and not to exceed) those made to the partners of the Seller during the period
from January 1, 20__ through the date hereof, or issue, purchase, redeem or
acquire for value any such partnership interests.
7.4 Contracts and Commitments. The Seller shall not amend or revise in any
way the Seller's Partnership Agreement or any of the Assumed Contracts without
the prior written approval of the Buyer, and the Seller shall not enter into any
contract or commitment (written or oral) or engage in any transaction not in the
usual and ordinary course of operations of the Business and consistent with the
business practices of the Seller.
7.5 No Shopping, Etc. The Seller shall not, and shall not permit any other
member of the Selling Group to, negotiate for, solicit or enter into any
agreement with respect to the sale of the Business or any substantial portion of
the Acquired Assets, or any merger or other business combination of the Seller,
to or with any Person other than the Buyer. Article 8
Certain Transitional Matters
8.1 Hiring the Other Employees. At the Closing, the Buyer will offer
employment to the associates and other employees of the Seller listed on
Schedule 8.1 (the persons accepting such offers and, with respect to each
associate of the Seller, entering into an employment letter agreement, with the
Buyer are referred to herein as the "Assumed Employees"). The Seller shall
retain all responsibility for all associates and employees of the Seller other
than the Assumed Employees. Each associate of the Seller shall be required to
enter into an employment letter agreement in form and substance satisfactory to
the Buyer prior to commencing employment with the Buyer.
8.2 Allocation of Employee Plan Responsibilities.
(a) In General. Except for the Assumed Obligations and as expressly
provided otherwise in this Section 8.2, the Seller shall have and retain
exclusive liability and responsibility for providing any and all benefits due
and payable to or in respect of participants and other beneficiaries under any
ERISA Plan or Non-ERISA Plan in accordance with the terms thereof. (b) Medical Benefits. Commencing as of the Closing Date, the Buyer
shall provide the Assumed Employees and the dependents and beneficiaries thereof
(the "Eligible Individuals") medical and dental benefit coverage, in each case
reasonably comparable in the aggregate to the coverage provided by the Seller's
comparable ERISA Plan and without application of any exclusion for a pre-
existing condition (other than conditions excluded or excludable as of the
Closing Date as pre-existing conditions under the Seller's medical and dental
coverage) and taking into account for purposes of any annual co-payment,
deductible and limitation on benefits, the payments made under the Seller's
comparable ERISA Plan in respect of the Eligible Individuals for otherwise
eligible medical and dental services in the current calendar year through the
Closing Date. Nothing in this Section shall be construed to require the Buyer,
nor is the Buyer under any obligation, to extend any such medical or dental
benefit coverage (either for an Assumed Employee or any other applicable
Eligible Individual) subsequent to an Assumed Employee's termination of
employment (except for continuation coverage required under Title I, Part 6, of
ERISA), on account of retirement or otherwise. (c) Tax Qualified Plans. Those Assumed Employees otherwise
qualifying for participation in plans maintained by the Buyer and intended to be
tax-qualified under Section 401(a) of the Code ("Buyer Plans") shall be eligible
to participate in the Buyer Plans subsequent to the Closing with credit for plan
eligibility and vesting purposes which includes their service prior to the
Closing Date with the Seller (as reported to the Buyer by the Seller at or prior
to the Closing). From and after the Closing Date, each Assumed Employee shall be
fully vested in his or her account balance under the ___________________ LLP
Defined Benefits Plan.
(d) Access in Information and Employees. To the extent permitted by
law, the Seller shall provide the Buyer with all such employment, personnel,
payroll and other information as the Buyer may determine reasonably necessary or
desirable to enable the Buyer to administer the Buyer's benefit plans in
accordance with their terms and the foregoing provisions of this Agreement in
respect to the Assumed Employees. (e) Limitations on Liability. Nothing in this Agreement will limit
or restrict in any way the rights of the Seller or the Buyer to modify, amend,
terminate or establish employee plans or arrangements in whole or in part at any
time after the Closing Date. Article 9
Conditions Precedent to Buyer's ObligationsThe obligation of the Buyer to consummate the Closing shall be subject to
the satisfaction at or prior to the Closing of each of the following conditions
(to the extent noncompliance is not waived in writing by the Buyer):
9.1 Representations and Warranties True at Closing. The representations
and warranties made by any member of the Selling Group in or pursuant to this
Agreement shall be true and correct in all material respects (without giving
duplicative effect to any materiality standard contained in such representation
or warranty) at and as of the Closing Date.
9.2 Compliance with Agreement. Each member of the Selling Group shall have
performed and complied in all material respects (without giving duplicative
effect to any materiality standard contained in the terms of such obligations)
with all of its, his or her obligations under this Agreement to be performed or
complied with by such Person on or prior to the Closing Date.
9.3 No Litigation. No restraining order or injunction shall prevent the
transactions contemplated by this Agreement and no action, suit or proceeding
shall be pending or threatened before any court or administrative body in which
it will be or is sought to restrain or prohibit or obtain damages or other
relief in connection with this Agreement or the consummation of the transactions
contemplated hereby.
9.4 Life Insurance Policies; Consents; Assignments; Agreements. The Seller
shall have delivered to the Buyer evidence satisfactory to the Buyer that each
of the Life Insurance Policies are in full force and effect as of the Closing
Date, and shall have obtained and delivered to the Buyer all consents, releases,
assignments and assumption agreements referred to in Section 3.2 hereof, and
each other Person party to the other agreements set forth in Section 3.2 shall
have executed and delivered the same to the Buyer.
9.5 Assumed Obligations. The Seller shall have delivered to the Buyer
copies of each contract, agreement and instrument evidencing any of the Assumed
Obligations or entered into by the Seller in conjunction therewith.
9.6 Proceedings and Documents Satisfactory. All approvals and proceedings
in connection with the transactions contemplated by this Agreement and all
certificates and documents delivered to the Buyer in connection with the
transactions contemplated by this Agreement shall be satisfactory in all
reasonable respects to the Buyer, and the Buyer shall have received the
originals or certified or other copies of all such records, certificates and
documents as the Buyer may reasonably request.
Article 10
Conditions Precedent to Seller's Obligations
The obligation of the Seller to consummate the Closing shall be subject to
the satisfaction, at or prior to the Closing, of each of the following
conditions (to the extent noncompliance is not waived in writing by the Seller):
10.1 Representations and Warranties True at Closing. The representations
and warranties made by the Buyer in this Agreement shall be true and correct in
all material respects (without giving duplicative effect to any materiality
standard contained in such representation or warranty) at and as of the Closing Date.10.2 Compliance with Agreement. The Buyer shall have performed and
complied in all material respects (without giving duplicative effect to any
materiality standard contained in the terms of such obligations) with all of its
obligations under this Agreement that are to be performed or complied with by it
at or prior to the Closing.
10.3 No Litigation. No restraining order or injunction shall prevent the
transactions contemplated by this Agreement and no action, suit or proceeding
shall be pending or threatened before any court or administrative body in which
it will be or is sought to restrain or prohibit or obtain damages or other
relief in connection with this Agreement or the consummation of the transactions
contemplated hereby.
10.4 Proceedings and Documents Satisfactory. All approvals and proceedings
in connection with the transactions contemplated by this Agreement and all
certificates and documents delivered to the Seller in connection with the
transactions contemplated by this Agreement shall be satisfactory in all
reasonable respects to the Seller and the Seller shall have received the
originals or certified or other copies of all such records, certificates and
documents as the Seller may reasonably request.
Article 11
Indemnification
11.1 Indemnity by the Selling Group. The Seller (with respect to clause
(a) below only), each of the Equity Partners severally (with respect to clause
(b) below only) and each member of the Selling Group jointly and severally (with
respect to clause (c) below only) agrees to indemnify and hold the Buyer
harmless from and with respect to any and all claims, liabilities, losses,
damages, costs and expenses, including, without limitation, the reasonable fees
and disbursements of counsel, and, if the Buyer defends itself, reasonable fees
and disbursements at the rate normally charged to third parties by the Buyer
(collectively, the "Losses"), related to or arising directly or indirectly out
of (a) any breach of any representation or warranty, covenant, obligation or
undertaking made by the Seller in this Agreement (including the Schedules and
Exhibits hereto) or any other statement, certificate or other instrument
delivered by the Seller pursuant hereto; (b) any breach of any representation or
warranty, covenant, obligation or undertaking made by such Equity Partner in
this Agreement (including the Schedules and Exhibits hereto) or any other
statement, certificate or other instrument delivered by such Equity Partner
pursuant hereto; (c) any of the Excluded Liabilities; and (d) non-compliance
with bulk sales laws of any state applicable to transactions contemplated hereby.
11.2 Indemnity by the Buyer. The Buyer agrees to indemnify and hold the
Selling Group harmless from and with respect to any and all Losses related to or
arising directly or indirectly out of (a) any breach by the Buyer of any
representation or warranty, covenant, obligation or undertaking made by the
Buyer in this Agreement (including the Schedules and Exhibits hereto) or any
other statement, certificate or other instrument delivered by the Buyer pursuant
hereto; or (b) any failure by the Buyer to perform any of the Assumed
Obligations.
Article 12
DefinitionsAs used herein the following terms not otherwise defined have the
following respective meanings:
"Person" means any corporation, association, partnership, organization,
business, individual, government or political subdivision thereof or
governmental agency.
"Tax" means any federal, state, local, or foreign income, gross receipts,
franchise, estimated, alternative minimum, add-on minimum, sales, use, transfer,
registration, value added, excise, natural resources, severance, stamp,
occupation, premium, windfall profit, environmental, customs, duties, real
property, personal property, capital stock, intangibles, social security,
unemployment, disability, payroll, license, employee, or other tax or levy, of
any kind whatsoever, or other similar duty, fee or assessment, including any
interest, penalties, or additions to or in respect of any of the foregoing.
Article 13
Termination
(a) This Agreement may be terminated by either the Buyer or the Seller in
writing, without liability to the terminating party on account of such
termination (provided the terminating party is not otherwise in default or in
breach of this Agreement), if the Closing shall not have occurred on or before
______________ ___, 20__.
(b) This Agreement may be terminated at any time prior to the Closing by
(i) the Buyer if any member of the Selling Group materially breaches its, his or
her obligations hereunder and such breaches are not cured by the earlier of the
fifteenth (15th) day after the occurrence thereof or ______________ ___, 20__
(ii) by the Seller if the Buyer materially breaches its obligations hereunder
and such breaches are not cured by the earlier of the fifteenth (15th) day after
the occurrence thereof or _____________ ___, 20__. (c) This Agreement may be terminated at any time prior to the Closing by
mutual action of the Seller and the Buyer. (d) In the event of the termination and abandonment of this Agreement by
the Seller or the Buyer, as herein provided, written notice thereof shall be
given to the other party or parties and this Agreement shall terminate without
any further action of the parties hereto. If this Agreement is terminated as
provided herein: (i) each party shall keep secret and confidential, and shall
not use for its, his or her benefit or for the benefit of others, any and all
confidential or proprietary information of or pertaining to the other parties
hereto or to their assets, properties, business, operations or financial
condition, and any and all information pertaining to this Agreement or to the
transactions contemplated hereby, received by such party, other than information
that is in or becomes in the public domain by reason other than a breach by one
of the parties hereto of the confidentiality provisions set forth herein; and
(ii) no party shall have any liability or further obligation to any other party
to this Agreement except as provided by this Article 13, and except that any
termination of this Agreement pursuant to the first sentence of this Article 13
shall not relieve a defaulting or breaching party from any liability to the
other party hereto. Notwithstanding the foregoing, the provisions of Article 14
shall survive any termination of this Agreement.
(e) The Buyer agrees that should this Agreement be terminated for any
reason, the Buyer shall not retain or offer to retain any partner, of counsel,
associate or other employee of the Seller for a one (1) year period commencing
on the date of such termination and concluding on the first anniversary thereof.
Article 14General
14.1 Survival of Representations and Warranties. The representations and
warranties of the parties hereto contained in this Agreement or otherwise made
in writing in connection with the transactions contemplated hereby (in each case
except as affected by the transactions contemplated by this Agreement) shall be
deemed material and, notwithstanding any investigation by the Buyer or the
Selling Group, shall be deemed to have been relied on by the Buyer or the
Selling Group, as applicable, and shall survive the Closing, and the
consummation of the transactions contemplated hereby.
14.2 Bulk Sales. The Buyer hereby waives compliance by the Seller with the
provisions of the bulk sales laws of any jurisdiction insofar as it may be
applicable to the transactions contemplated by this Agreement. The Seller agrees
to pay and discharge when due all of Seller's debts and obligations not
expressly assumed by the Buyer pursuant to Section 2.1 above. Seller also agrees
to pay and discharge when due or contest or litigate pursuant to the
indemnification provisions of Article 11 of this Agreement all claims of
creditors which are asserted against the Buyer or the Acquired Assets by reason
of such non-compliance.
14.3 Confidential Information. At all times from and after the execution
of this Agreement, each member of the Selling Group shall keep secret and
maintain in strictest confidence and shall not use for its, his or her benefit
or for the benefit of others, (a) any information pertaining to this Agreement
or the transactions contemplated hereby, (b) any information pertaining to any
arbitration under Section 14.17 hereof, (c) any confidential or proprietary
information of or pertaining to the Buyer or relating to the business,
operations of financial condition of the Buyer or concerning any partners,
associates, employees or clients of the Buyer, or (d) any confidential or
proprietary information relating to the Business or the Acquired Assets
(including, without limitation, all files and records relating to the Business
and all trademarks, know-how, trade secrets, computer software programs,
computer data bases and related documentation and materials), other than any of
such information that is in the public domain prior to the date of this
Agreement or thereafter comes into the public domain (unless any of such
information is in or becomes in the public domain in whole or in part due to the
action or inaction of any member of the Selling Group in violation of this
Agreement). The foregoing shall not prohibit use of such information as is
required by applicable law, or as is necessary to prepare Tax returns or other
filings with governmental authorities for the period (including all prior
taxable years) ending on and including the Closing Date, or to assert or protect
any rights of the Selling Group under this Agreement; provided that, the Buyer
is given notice and an adequate opportunity to contest such disclosure or to use
any means available to minimize such disclosure (e.g., the "confidential
treatment" provisions of Rule 24b-2 promulgated under the Securities Exchange
Act of 1934, as amended).
14.4 Employee Benefit Plans. The Seller shall, as soon as practicable and
in any event within one (1) year after the Closing Date, terminate each of its
ERISA Plans and Non-ERISA Plans and distribute the assets contained therein to
the participants thereof or, at the direction of the participants thereof, to
other appropriate plans.14.5 Expenses. All expenses of the preparation, execution and consummation
of this Agreement and of the transactions contemplated hereby, including,
without limitation, attorneys', accountants' and outside advisers' fees and
disbursements, shall be borne by the party incurring such expenses.
14.6 Notices. All notices, demands and other communications hereunder
shall be in writing or by written telecommunication, and shall be deemed to have
been duly given if delivered personally or if mailed by certified mail, return
receipt requested, postage prepaid, or if sent by overnight courier, or sent by
written telecommunication, as follows:
If to the Selling Group, to:
___________________
___________________
___________________
Attention: Managing Partner
If to the Buyer, to each of:
___________________
___________________
___________________
Attention: Managing Partner
Any such notice shall be effective (a) if delivered personally, when received,
(b) if sent by overnight courier, when receipted for, (c) if mailed, three (3)
days after being mailed as described above, and (d) if sent by written
telecommunication, when dispatched.
14.7 Seller Representative. By the execution and delivery of this
Agreement, each member of the Selling Group hereby irrevocably constitutes and
appoints [Managing Partner] as the true and lawful agent and attorney-in-fact
(the "Seller Representative") of the Selling Group with full pow
