"Asset Purchase Agreement - Excel"
Index of Annual Surveys of Judicial Developments (through 2008) Location 2008 INTERPRETATION AND Remedies United Rentals, Inc. v. Ram Holdings, Inc. (Forthright Negotiator Principal Employed ENFORCEMENT OF to Interpret Ambiguous Merger Agreement) AGREEMENTS 2008 INTERPRETATION AND Remedies Genesco, Inc. v. The Finish Line, Inc. (Buyer Ordered to Perform Merger ENFORCEMENT OF Agreement.) AGREEMENTS 2008 INTERPRETATION AND Interpretation Innophos, Inc. v. Rhodia, S.A., (Seller Indemnification for Taxes Includes Water ENFORCEMENT OF Extraction Assessment Owed by Target Subsidiary to Foreign Government). AGREEMENTS 2008 INTERPRETATION AND Survival Schrader-Bridgeport International, Inc. v. ArvinMeritor, Inc., (Indemnification Survival ENFORCEMENT OF Period Based on Statute of Limitations Found Ambiguous) AGREEMENTS 2008 INTERPRETATION AND True-up Brim Holding Company, Inc. v. Province Healthcare Company (Purchaser of ENFORCEMENT OF company entitled to payment for indemnified litigation even though a specific AGREEMENTS reserve for such litigation operated to decrease the purchase price in a post-closing working capital adjustment) 2008 INTERPRETATION AND Interpretation Lillis v. AT&T Corp. (Interpretation of "Anti-Destruction" Clause in Stock Option ENFORCEMENT OF Agreements) AGREEMENTS 2008 INTERPRETATION AND Reliance Gusmao, et al., v. GMT Group, Inc. (Claim for Breach of Warranty Survives and ENFORCEMENT OF Claim for Negligent Misrepresentation Does Not Survive Sellers' Motion for AGREEMENTS Summary Judgment in Suit to Release Escrowed Funds) 2008 INTERPRETATION AND Survival Western Filter Corp. v. Argan, Inc. (Survival Clause Does Not Shorten Statute of ENFORCEMENT OF Limitations) AGREEMENTS 2008 INTERPRETATION AND Remedies Hexion Specialty Chemicals, Inc. v. Huntsman Corp. (Buyer intentionally breached ENFORCEMENT OF reasonable best efforts covenant by failing to pursue financing) AGREEMENTS 2008 BREACH OF FIDUCIARY Fiduciary Duty Optima International of Miami, Inc. v. WCI Steel, Inc. (Court declines to preliminarily DUTY enjoin merger under circumstances in which competing bidder offered higher value but competing proposal was subject to significant contingency) 2008 BREACH OF FIDUCIARY Fiduciary Duty Ryan v. Lyondell Chemical Company (Revlon and bad faith claims survive motion DUTY for summary judgment in single-bidder all-cash acquisition) 2008 BREACH OF FIDUCIARY Fiduciary Duty In re Lear Corporation Shareholders Litigation (Court dismisses claim that directors DUTY acted in bad faith by agreeing to termination fee payable solely upon a stockholder rejection of proposed merger) 2008 ATTORNEY CLIENT Privilege Postorivo v. AG Paintball Holdings, Inc. (Delaware Chancery Court Allocates PRIVILEGE Ownership of Attorney-Client Privilege in Dispute Arising from Asset Purchase Agreement) Page 1 Index of Annual Surveys of Judicial Developments (through 2008) 2007 INTERPRETATION AND Earnout Chabria v. EDO Western Corp. (Claims for Breach of Contract, Breach of Implied ENFORCEMENT OF Covenant of Good Faith and Fair Dealing and Fraudulent Inducement Survive AGREEMENTS Acquiror's Motion to Dismiss in Earnout Dispute) 2007 Annual Survey 2007 INTERPRETATION AND Earnout Woods v. Boston Scientific Corp. (Acquiror Prohibited From Terminating Officers of ENFORCEMENT OF Target Pending Compliance With Dispute Resolution Procedure in the Earnout AGREEMENTS Provisions of Merger Agreement) 2007 INTERPRETATION AND Earnout Vaughan v. Recall Total Information Management, Inc. (Sellers in Earnout ENFORCEMENT OF Transaction Credited for Sales Revenues of Other Businesses Acquired During AGREEMENTS Earnout Period) 2007 INTERPRETATION AND Reliance Merrill Lynch & Co. Inc. v. Allegheny Energy, Inc. (District Court Must Reexamine ENFORCEMENT OF Claims of Fraudulent Inducement and Claims for Breach of Representations AGREEMENTS Regarding Financial Statements and Full Disclosure of Information) 2007 INTERPRETATION AND Earnout LaPoint v. AmerisourceBergen Corp. (Buyer Liable for Breach of Contract for Failing ENFORCEMENT OF to Adequately Support Seller’s Efforts to Obtain Earnout) AGREEMENTS 2007 INTERPRETATION AND Reliance Power Soak Systems, Inc. v. Emco Holdings, Inc. (Lack of Reliance Not a Defense ENFORCEMENT OF to a Breach of Warranty Claim). AGREEMENTS 2007 INTERPRETATION AND Reliance Cobalt Operating, LLC v. James Crystal Enterprises, LLC (Representations and ENFORCEMENT OF Warranties Allocate Risk and Need Not be Verified by Acquiror) AGREEMENTS 2007 INTERPRETATION AND No shop Johnson & Johnson v. Guidant Corporation (Claims for Tortious Interference and ENFORCEMENT OF Breach of No-Solicitation Provision of Merger Agreement) AGREEMENTS 2007 INTERPRETATION AND Survival Herring v. Teradyne, Inc. (Survival Clause Does Not Constitute a Contractual ENFORCEMENT OF Limitation of Statute of Limitations) AGREEMENTS 2007 BREACH OF FIDUCIARY Fiduciary duty In Re Netsmart Technologies, Inc. Shareholders Litig. (Board Decision to Pursue DUTY Only Private Equity Acquirors May Violate Directors' Revlon Duties) 2007 BREACH OF FIDUCIARY Fiduciary duty In Re The Topps Company Shareholders Litig. (Effectiveness of "Go-Shop" DUTY Provision; Misuse of a Standstill Agreement to Prevent a Strategic Bidder from Topping an Announced Sale to a Private Equity Firm). 2007 BREACH OF FIDUCIARY Fiduciary duty In Re Lear Corporation Shareholders Litig. (Management Conflicts, Go-Shop DUTY Periods, Matching Rights, and Termination Fees in connection with a Going-Private Transaction) 2006 INTERPRETATION AND Third-party Halliburton Company Benefits Committee v. Graves (Provisions of Merger ENFORCEMENT OF beneficiary Agreement Held to Amend Target Company Benefit Plan, Rendering the Merger AGREEMENTS Agreement Amendment Enforceable by Target Retirees Under ERISA) 2006 Annual Survey Page 2 Index of Annual Surveys of Judicial Developments (through 2008) 2006 INTERPRETATION AND Fraud ABRY Partners V, L.P. v. F&W Acquisition, LLC (Buyer's Claim for Rescission of ENFORCEMENT OF Stock Purchase Agreement Survives Motion to Dismiss Despite Provisions Waiving AGREEMENTS Rescission Rights) 2006 INTERPRETATION AND True-up OSI Systems, Inc. v. Instrumentarium Corp. (Dispute Over Post-Closing Working ENFORCEMENT OF Capital Adjustment Subject to Arbitration Rather Than Independent Accounting Firm AGREEMENTS Determination) 2006 INTERPRETATION AND Indemnification Envoy Corp. v. Quintiles Transnational Corp. (Exercise of an Insurer's Subrogation ENFORCEMENT OF Rights Under a D&O Policy Does Not Constitute a Prohibited Assignment of a AGREEMENTS Merger Agreement) 2006 INTERPRETATION AND No-shop Energy Partners, Ltd. v. Stone Energy Corp. (Merger Agreement Did Not Limit Ability ENFORCEMENT OF of Buyer to Explore Third Party Proposal for Acquisition of Buyer) AGREEMENTS 2006 INTERPRETATION AND Assignment Maryville Hotel Associates I, LLC v. IHC/Maryville Hotel Corp. (Sale of Corporate ENFORCEMENT OF Grandparent Did Not Breach LLC Agreement Provision Prohibiting Indirect Transfer AGREEMENTS of LLC Interest) 2006 BREACH OF FIDUCIARY Fiduciary duty In re Tele-Communications, Inc. Shareholders Litigation; Gesoff v. IIC Industries DUTY Inc.; and Oliver v. Boston University (Independent Committees Held to be Ineffective) 2006 SUCCESSOR LIABILITY Choice of law Berg Chilling Systems, Inc. v. Hull Corp. (Choice of Law Provision in Asset Purchase Agreement Not Controlling as to Applicable Law Relating to Successor Liability) 2006 SUCCESSOR LIABILITY Successor Semenetz v. Sherling & Walden, Inc. (New York Court of Appeals Declines to liability Endorse "Product Line" Exception in Successor Liability) 2006 SUCCESSOR LIABILITY Successor New York v. National Service Industries, Inc. (Continuity of Ownership Required for liability Successor Liability Under CERCLA) 2006 M&A TRANSACTION GIVES Tortious UbiquiTel, Inc. v. Sprint Corp. (Merger Constituted Tortious Interference with a Third RISE TO TORTIOUS interference Party Contractor of Target Company) INTERFERENCE CLAIM 2005 INTERPRETATION AND Third-party Halliburton Company Benefits Committee v. Graves (Merger Agreement Constitutes ENFORCEMENT OF beneficiary Employee Benefit Plan Amendment Enforceable by Employees of Target Company) AGREEMENTS 2005 Annual Survey 2005 INTERPRETATION AND Damages Consolidated Edison, Inc. v. Northeast Utilities (Lost Merger Premium Constitutes ENFORCEMENT OF Damages of Target Shareholders, Not Recoverable by Target Company Following AGREEMENTS Acquiror's Breach of Merger Agreement) 2005 INTERPRETATION AND Damages Design Strategies, Inc. v. Davis (Target Company Has No Standing to Sue for ENFORCEMENT OF Alleged Breach of Letter of Intent Regarding Stock-Sale Transaction) AGREEMENTS 2005 INTERPRETATION AND Proof of breach DCV Holdings, Inc. v. ConAgra, Inc. (Disclosures Found Sufficient to Avoid Liability ENFORCEMENT OF Under "No Undisclosed Liabilities" and "Compliance with Law" Representations) AGREEMENTS Page 3 Index of Annual Surveys of Judicial Developments (through 2008) 2005 INTERPRETATION AND Breach of IMO Industries, Inc. v. Siemens Demag Delaval Turbomachinery, Inc. (Breach of ENFORCEMENT OF covenant Post Closing Covenant by Acquiror Insufficient to Void Seller's Indemnification AGREEMENTS Obligations) 2005 INTERPRETATION AND Reliance Merrill Lynch & Co., Inc. v. Allegheny Energy, Inc. (Detailed Due Diligence Prevents ENFORCEMENT OF Indemnification and Fraudulent-Inducement Claims, Despite Fraudulent Conduct of AGREEMENTS Seller's CEO and Inclusion of False Profit on Target Company Financial Statements) 2005 INTERPRETATION AND Earn-out Instrument Industries Trust v. Danaher Corporation (Earn-Out Payment Triggered ENFORCEMENT OF by a "Merger or Consolidation" of Assets Acquired in Asset-Purchase Transaction AGREEMENTS 2005 INTERPRETATION AND Reliance Schwan-Stabilo Cosmetics GMBH & Co. v. PacificLink International Corporation ENFORCEMENT OF (Buyer Entitled to Post-closing Indemnification Despite Pre-closing Knowledge of AGREEMENTS Liabilities for Which Indemnification Sought 2005 BREACH OF FIDUCIARY Fiduciary duty Toys "R" Us, Inc. Shareholder Litigation (Revlon Duty Not Violated by Conversion of DUTY Auction of Division Into Sale of Whole Company on Eve of Final Bidding) 2005 INTERPRETATION OF Statutes VantagePoint Venture Partners 1996 v. Examen, Inc. (California Voting STATUTORY Requirements for "Quasi-California Corporations" Unenforceable against Delaware REQUIREMENTS Corporation) 2005 ATTORNEY-CLIENT Privilege Coffin v. Bowater Incorporated (In Sale of Assets Transaction in Which Virtually All PRIVILEGE Control of the Business Was Transferred to Buyer, Right to Waive Attorney-Client Privilege Passes to Buyer) 2004 INTERPRETATION AND Conditions Annecca, Inc. V. Lexent, Inc. (Termination Of Acquisition Agreement For Failure Of ENFORCEMENT OF Conditions Precedent) AGREEMENTS 2004 Annual Survey 2004 INTERPRETATION AND Third-party Prouty V. Gores Technology Group (Employees Of Target Allowed To Enforce ENFORCEMENT OF beneficiary Acquisition Agreement As Third-Party Beneficiaries, Despite "No Third-Party AGREEMENTS Beneficiaries" Clause) 2004 INTERPRETATION AND Third-party Comrie V. Enterasys Networks, Inc. (Employees Of Target Allowed To Enforce ENFORCEMENT OF beneficiary Acquisition Agreement As Third-Party Beneficiaries) AGREEMENTS 2004 INTERPRETATION AND Third-party Merzin V. Provident Financial Group Inc. (Shareholders Of Target Not Allowed To ENFORCEMENT OF beneficiary Enforce Acquisition Agreement As Third-Party Beneficiaries) AGREEMENTS 2004 BREACH OF FIDUCIARY Fiduciary duty Alessi V. Beracha (Disclosure Obligations Pertaining To Stock Buy-Back Program) DUTY 2004 BREACH OF FIDUCIARY Fiduciary duty Guarino V. Interactive Objects, Inc. (Disclosure Obligations Pertaining To DUTY Acquisition Of Stock From Minority Shareholder 2004 BREACH OF FIDUCIARY Fiduciary duty Orman V. Cullman (A Fully Informed "Majority Of Minority" Stockholder Vote DUTY Operates To Extinguish Breach Of Fiduciary Duty Claims Relating To Merger) Page 4 Index of Annual Surveys of Judicial Developments (through 2008) 2004 INTERPRETATION OF Statutes Hollinger Inc. V. Hollinger International Inc. (Analysis Of "All Or Substantially All" STATUTORY Requirement For Shareholder Vote In Asset Sale) REQUIREMENTS 2004 INTERPRETATION OF Statutes Rudisill V. Arnold White & Durkee, P.C. (Shareholders Not Entitled To Dissenters' STATUTORY Rights On Sale Of Assets; Interpretation Of Article 5.09 Of Texas Business REQUIREMENTS Corporation Act) 2004 INTERPRETATION OF Statutes Union Illinois 1995 Investment Limited Partnership V. Union Financial Group, Ltd. STATUTORY (Shareholder Allowed To Seek Appraisal Rights With Respect To Some, But Not All, REQUIREMENTS Of Its Shares) 2004 ATTORNEY-CLIENT Privilege Venture Law Group V. Superior Court (Attorney-Client Privilege Belongs To PRIVILEGE Successor Corporation In A Merger) 2003 INTERPRETATION AND Reliance AES Corp. v. The Dow Chemical Company ("Non-Reliance" Provisions ENFORCEMENT OF Unenforceable to Bar 10b-5 Claim) AGREEMENTS 2003 Annual Survey 2003 INTERPRETATION AND Reliance Poth v. Russey ("Non-Reliance" Provisions Support Summary Judgment Dismissing ENFORCEMENT OF 10b-5 Claim) AGREEMENTS 2003 INTERPRETATION AND Reliance Consolidated Edison, Inc. v. Northeast Utilities, ("Non-Reliance" Provisions Support ENFORCEMENT OF Summary Judgment Dismissing Fraudulent Inducement and Negligent AGREEMENTS Misrepresentation Claims) 2003 INTERPRETATION AND Reliance Merrill Lynch & Co. v. Allegheny Energy, Inc. ("Non-Reliance" Provisions ENFORCEMENT OF Unenforceable to Bar Fraudulent Inducement Claim) AGREEMENTS 2003 INTERPRETATION AND Contract AIH Acquisition Corp. v. Alaska Industrial Hardware, Inc. (Enforcement of Unsigned ENFORCEMENT OF formation Stock Purchase Agreement) AGREEMENTS 2003 INTERPRETATION AND Earn-out Horizon Holdings, L.L.C. v. Genmar Holdings, Inc. (Damages Awarded for Lost Earn- ENFORCEMENT OF out) AGREEMENTS 2003 INTERPRETATION AND True-up In the Matter of Westmoreland Coal Company (Relationship Between ENFORCEMENT OF Indemnification and Purchase Price Adjustment Provisions) AGREEMENTS 2003 INTERPRETATION AND Assignment Chemetall GMBH v. ZR Energy, Inc. (Asset Acquirer Allowed to Enforce a Contract ENFORCEMENT OF It Did Not Specifically Assume) AGREEMENTS 2003 BREACH OF FIDUCIARY Fiduciary duty Lawton v. Nyman (Disclosure Obligations Pertaining to Acquisition of Stock from DUTY Minority Shareholders) 2003 BREACH OF FIDUCIARY Fiduciary duty Neubauer v. Goldfarb (Waiver of Disclosure Duty Invalid as a Matter of Law) DUTY 2003 BREACH OF FIDUCIARY Fiduciary duty Erickson v. Centennial Beauregard Cellular, LLC (Disclosure Duties in Short-Form DUTY Merger) Page 5 Index of Annual Surveys of Judicial Developments (through 2008) 2003 SUCCESSOR LIABILITY Successor Bielagus v. EMRE of New Hampshire Corp. (Substantial Continuation Theory liability Rejected by New Hampshire Supreme Court) 2003 SUCCESSOR LIABILITY Successor Cargo Partner AG v. Albatrans (De Facto Merger Theory Requires Continuity of liability Ownership) 2003 SUCCESSOR LIABILITY Successor New York v. National Services Industries, Inc. (Substantial Continuity Test liability Abandoned for Determining Successor Liability under CERCLA) 2002 INTERPRETATION AND Remedies Cerberus International, Ltd. v. Apollo Management, L.P (Reformation Based on Not available ENFORCEMENT OF Mistake) AGREEMENTS 2002 INTERPRETATION AND Best efforts Herrmann Holdings Ltd. v. Lucent Technologies Inc. (Meaning of "Reasonable Best ENFORCEMENT OF Efforts") AGREEMENTS 2002 INTERPRETATION AND Third-party In re Enron Corp. (Third-Party Beneficiaries) ENFORCEMENT OF beneficiaries AGREEMENTS 2002 INTERPRETATION AND Preferred stock Benchmark Capital Partners IV L T v. Vague (Preferred Stock Voting Rights) ENFORCEMENT OF AGREEMENTS 2002 INTERPRETATION AND Deed El Paso Refining, L .P. V. Trmi Holdings, Inc. (Enforcement of Deed Restrictions ENFORCEMENT OF restrictions Against Subsequent Acquirors) AGREEMENTS 2002 SUCCESSOR LIABILITY Successor Brend v. Sames Corp . (Employee Benefit Plan Liability) liability 2002 BREACH OF FIDUCIARY Fiduciary duty Levco Alternative Fund Ltd. v. Reader's Digest Ass'n (Relative Fairness of DUTY Transaction to Holders of Separate Classes of Stock) 2002 BREACH OF FIDUCIARY Fiduciary duty In re Pure Resources, Inc . (Application of Entire Fairness Standard to Tender Offer DUTY by Controlling Shareholder) 2002 BREACH OF FIDUCIARY Fiduciary duty Omnicare, Inc. v. NCS Healthcare, Inc . (Approval of Deal Protection Measures in DUTY Merger Agreement) 2002 BREACH OF FIDUCIARY Fiduciary duty Solar Cells, Inc. v. True North Partners, LLC (Effect of Waiver of Fiduciary Duties in DUTY Operating Agreement on Fairness Analysis) 2002 BREACH OF FIDUCIARY Fiduciary duty Orman v. Cullman (Extent of Director "Interest" Required to Constitute Conflict of DUTY Interest) Page 6