For the questions in this section, 2-3 paragraphs should be needed unless indicated otherwise. The following was provided in the TRS Deal Memo (under “Transaction Documents” on BlackBoard) and is used for the questions contained in this part: • Analux would like to have an upper Cap (upper limit) on the indemnification obligation that Analux would have for a breach of the title representation in Section 6.6 of the APA as it would relate to IP assets that are purchased by TRS under the APA. In other words, Analux wants to have an upper Cap to any liability they may have to us if they do not have good and valid title to any of the sold IP assets. • Analux has said that our refusal to add the Cap does not comport with their understanding of the deal. The basis for their position is that the letter of intent between the parties said that usual and customary representations and indemnities would apply to the APA, and as evidenced by the following study, TRS’s attempt to remove the IP title rep from the Cap does not comport with usual and customary representations that one would see in an APA: o A 2007 Private Target Study (conducted by an ABA subcommittee) stated that upper Caps for asset title representations were given to the Seller in 90% of the purchase agreements examined in the Study. 22. What can we argue to the other side that the upper Cap for the title representation (as it relates to IP assets) is not appropriate in our situation? 23. Can this be structured as or considered a “Win-Win” situation for both parties? Why or why not?
http://wikisend.com/download/721306/2 - Deal Memo.doc
It's the deal memo