SOLE DISCRETION, TO RESTRUCTURE
THE ACQUISITION OF ANY OF THE TARGET COMPANIES BY ACQUIRING ALL OF THE
PROPERTIES AND ASSETS (THE "TARGET COMPANIES' ASSETS") AND LIABILITIES OF SUCH
TARGET COMPANIES IN AN ASSET ACQUISITION RATHER THAN THE ACQUISITION OF THE
TARGET INTERESTS AS CONTEMPLATED BY THIS AGREEMENT, IN WHICH CASE U.S. BUYER AND
SELLERS SHALL, AND SELLERS SHALL CAUSE THE TARGET COMPANIES TO, ENTER INTO ONE
OR MORE SEPARATE ASSET PURCHASE AGREEMENTS IN THE FORM SET FORTH AS EXHIBIT O
WITH EACH OF THE TARGET COMPANIES (EACH, A "TARGET COMPANY APA") WITH RESPECT TO
THE TARGET COMPANIES' ASSETS AND ALL OF TARGET COMPANIES' LIABILITIES, AND ANY
REASONABLY REQUIRED TRANSFER DOCUMENTS, PURSUANT TO WHICH, AMONG OTHER THINGS,
EACH TARGET COMPANY SHALL ASSIGN, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW,
ALL PERMITS REQUIRED BY THE APPLICABLE GOVERNMENTAL ENTITIES TO OPERATE THE
BUSINESS OF SUCH TARGET COMPANY AND ASSIGN ALL CONTRACTS TO WHICH SUCH TARGET
COMPANY IS A PARTY.
(II)
IF A CONSENT OF ANY THIRD PARTY OR
GOVERNMENTAL ENTITY WITH RESPECT TO THE TRANSFER OR ASSIGNMENT TO AND OPERATION
BY U.S. BUYER OF ANY OF THE TARGET COMPANIES' ASSETS (INCLUDING ANY CONTRACTS)
IS REQUIRED BUT CANNOT, IN THE OPINION OF SELLERS OR THE RELEVANT TARGET
COMPANIES, BE OBTAINED AS PROMPTLY AS REASONABLY PRACTICABLE FOLLOWING THE ENTRY
OF THE SALE ORDER (BUT IN ANY CASE ON OR PRIOR TO THE END DATE), SO LONG AS ALL
OTHER CONDITIONS IN SECTION 7 ARE SATISFIED OR ANTICIPATED TO BE SATISFIED AT
THE CLOSING, THE PROVISIONS SET FORTH IN SECTION 2(J) SHALL APPLY TO SUCH TARGET
COMPANIES' ASSETS MUTATIS MUTANDIS.
(III)
THE U.S. BUYER AND SELLERS AGREE THAT IT IS
THE INTENT OF THE PARTIES THAT THE TRANSACTIONS CONTEMPLATED UNDER THIS
SECTION 5(P) WILL NOT IN ANY WAY EXPAND THE LIABILITIES OF SELLERS AND THEIR
AFFILIATES UNDER THIS AGREEMENT OR ANY OTHER RELATED AGREEMENT, AND THAT THE
TRANSACTIONS CONTEMPLATED UNDER THIS SECTION 5(P) SHALL (A) NOT BE CONDITIONED
UPON ANY CONSENTS, APPROVALS OR NOTICES TO OR FROM ANY THIRD PARTY OR
GOVERNMENTAL ENTITY (PROVIDED THAT SELLERS SHALL COMPLY WITH SECTION 5(B)(I) AND
SECTION 5(B)(III)), (B) REQUIRE THE U.S. BUYER TO OFFER EMPLOYMENT TO ALL
EMPLOYEES WHO ARE EMPLOYED BY SUCH TARGET COMPANY (OR TARGET COMPANIES, AS THE
CASE MAY BE) AT CLOSING, AND (C) REQUIRE U.S. BUYER TO INDEMNIFY THE TARGET
COMPANY (OR TARGET COMPANIES, AS THE CASE MAY BE) FOR ANY LIABILITIES OF SUCH
TARGET COMPANY THAT ARISE PRIOR TO THE CLOSING.
FOR THE AVOIDANCE OF DOUBT, AND
NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, U.S. BUYER SHALL BE
RESPONSIBLE FOR ALL TRANSFER TAXES PURSUANT TO SECTION 6(H)(I) ARISING OUT OF
THE TRANSACTIONS CONTEMPLATED UNDER THIS SECTION 5(P).
(IV)
NOTWITHSTANDING THE FOREGOING, UNLESS U.S.
BUYER HAS EXERCISED THE ASSET SALE OPTION WITHIN THE TIME PERIOD SET FORTH IN
SECTION 5(P)(I), AT THE CLOSING, SELLERS SHALL TRANSFER TO U.S. BUYER THE TARGET
INTERESTS PURSUANT TO THIS AGREEMENT.
81
(q)
Insurance.
(I)
PRIOR TO THE CLOSING, SELLERS SHALL USE
REASONABLE BEST EFFORTS (A) TO AMEND ALL