Heeb Michael M. Horn. Curtis A. Johnson Howard Kailes Thomas Kesoglou Todd M. Poland R. Andrew Richards James G. Scantling Peter S. Twombly Michele F. Vaillant Burton Winnick Financial Services Litigation Practice Group Ste. 2. Consider using separate provisions to deal with the assignment of the contract to a third party and the effect on the commercial agreement of a potential change of control of a contractual party. When entering into commercial agreements, parties often focus exclusively on the key business terms but pay scant attention to anti-assignment and change of control provisions. These provisions usually appear at the end of the agreement and all too often are treated as "boilerplate." This approach can haunt a party when it seeks to sell its business by. The cases determined that the assets of the seller were not transferred in the merger. Asset sales under Section 363 of the Bankruptcy Code also should not require a novation agreement pursuant to this operation of law exception to the Act recognized by the courts. For example, under Delaware law, it has been held that the acquisition of stock of a target company did not violate an anti-assignment provision contained in a distribution agreement. Baxter Pharm.
3. Avoid using the term "transfer" when addressing the assignment of the contract. 4. Use terms such as "merger" and "by operation of law" if the intent is to subject a merger to the change of control provisions.