Service levels should be defined in the TSA or supporting documents with the appropriate level of detail, so that the parties can understand exactly how the requested services are to be provided, without giving the seller contractual „outs”. Avoid adholding „reasonable business efforts,” „economically reasonable,” „best business efforts,” and similar performance standards that could allow seller to technically operate in accordance with the TSA, but without actually providing the requested services in a manner that provides buyer with the benefit of their agreement. Parties to a TSA should understand whether there is personal data, a health insurance Portability and Accountability Act, or other sensitive or confidential information used in connection with the services provided. Consider whether there is a need to improve business continuity or disaster recovery plans. What remedies are available to the buyer if the seller is not working properly under the TSA? A seller may have little incentive to work after closing in accordance with the service levels set out in the TSA and its supporting documents, unless there is explicit lump sum compensation that can be recovered by the buyer – standard indemnities may not be sufficient motivation. For maximum enforcement, you should consider a clawback against a trust service for insufficient benefits under the TSA (although this may be difficult to negotiate as part of the larger M&A deal). The following comments and questions better represent „the things to ask yourself”, not „this is what you need to do to have successful ASD” – apart from the fact that all participants should be communicated and that the agreement should of course be very well detailed. . . .
