Asset Purchase Agreement or Bulk Sale Agreement
This Asset Purchase Agreement or Bulk Sales Agreement (the “Agreement”) is made and effective on ____ (Date), by and between (“Seller”)__________________________ (Name & Address) and (“Buyer”) ___________________________________________.
Seller operates a business (“Business”) under the name: ________________________.
Seller desires to sell to Buyer, and Buyer desires to purchase from Seller, certain assets of Seller used in the Business, subject to the terms of this Agreement.
Therefore the parties agree as follows:
1. Transfer of Assets.
At the Closing, subject to the terms of this Agreement, Seller shall sell, assign, transfer, convey and deliver to Buyer, and Buyer shall purchase from Seller, free and clear of all liens, encumbrances, claims, charges, equities or imperfections of any nature, all contract rights, customer lists, leases, furniture, fixtures, equipment, trademarks, trade names, intellectual property, goodwill, materials, supplies, telephone numbers, business records, and other assets and properties owned or leased by Seller and used or useful in the Business and related operations, but excluding the following, if any: corporate stock records; any minute books or related corporate records; cash, accounts receivable and accounts payable; insurance policies; income tax refunds due; officer and shareholder loans due. The assets and properties to be transferred by Seller to Buyer shall include, without limitation:
A. The furniture, fixtures and equipment listed in Exhibit A.
B. Assignment of the lease or leases held by Seller, as lessee, regarding Seller’s business location, a copy or copies of which is attached hereto as Exhibit B.
C. The contracts, leases, licenses and other agreements identified on Exhibit C attached hereto.
D. Such other of Seller’s property and assets identified on Exhibit D attached hereto.
E. Seller’s inventory identified on Exhibit E attached hereto.
2. Transfer and Conveyance Documents.
Seller agrees to deliver to Buyer at the Closing such certificates, bills of sale, documents of title and other instruments of conveyance and transfer, in form and content satisfactory to Buyer, as shall be effective to vest in Buyer good and marketable title in and to any property to be sold, assigned, transferred, conveyed and delivered hereunder in this Agreement.
Buyer shall pay Seller at the Closing the purchase price of $_______________ in certified funds as described below, in full payment for everything purchased from Buyer as described in this document. Buyer shall pay an additional amount at Closing for Seller’s inventory determined as follows: _____________________________________.
4. Allocation of Purchase Price.
The purchase price for the assets and properties referred to in Section 1 and for the covenant not to compete of Seller under Section 13, the assets shall be allocated as follows:
Assets referred to in Section 1. A. $_________________.
Lease referred to in Section 1. B. $_________________.
Items referred to in Section 1. C. $_________________.
Items referred to in Section 1. D. $_________________.
Covenant not to compete – Sect. 13. A. $_________________.
This Agreement shall not be deemed or construed to be divisible by reason of allocating the purchase price with respect to separate categories of property. All of the terms, conditions and covenants in this Agreement shall be mutually interdependent.
5. No assumption of Liabilities.
Except as otherwise agreed expressly in writing, Buyer does not and shall not assume or agree to pay any of Seller’s or, where applicable, any shareholder’s, partner’s, or member’s, liabilities or obligations of any kind of nature. Seller and, where applicable, any shareholder, partner, or member, shall remain responsible and entirely liable for their respective debts and obligations.
6. Required Further Dealings between the Parties.
From time to time after the date of this Agreement, Seller shall give to Buyer, and to Buyer’s representatives, auditors and counsel, full access to all of the properties, books, records, tax returns, contracts, licenses, franchises and all of the documents of Seller relating to the Business and shall furnish to Buyer all information with respect to the Business, as Buyer may from time to time reasonably request. Promptly following execution of this Agreement, Seller shall use Seller’s best efforts to obtain all consents (if any, including, without limitation, consents of any government or governmental agency) necessary to effect the sale, assignment, transfer, conveyance and delivery contemplated by Section I hereof. From time to time after the Closing, at Buyer’s request and without further consideration, Seller agrees to execute and deliver at Seller’s expense such other instruments of conveyance and transfer and take such other action as Buyer reasonably may require more effectively to sell, assign, transfer, convey, deliver and vest in Buyer, and to put Buyer in possession of, any property to be sold, assigned, transferred, conveyed and delivered hereunder.
A.The payment of amounts due, delivery of documents and completion of other items related to the transfer of the Business and the assets purchased by Buyer (“Closing”) shall be held on _________ (Date) at_____________(Time) at ____________________ (Location), or on such other date, and at such other time and place, as mutually agreed upon by the parties in writing.
B. At the Closing:
(i) Seller shall execute and deliver to Buyer the instruments of conveyance and transfer called for in Section 2 hereof,
(ii) Buyer shall deliver to Seller $ ________by certified or cashier’s check.
C.In the event that the Closing hereunder shall not be consummated on the date and time specified in this Section for any reason other than some act, omission or material breach by Buyer, this Agreement shall, at the sole option of Buyer, terminate. Any deposit previously paid by Buyer shall be promptly returned to Buyer and neither party hereto shall have any further obligation or liability to the other party hereto.
8. Representations and Warranties of Seller.
Seller represents and warrants to and covenants with Buyer, and Buyer’s successors and assigns (which representations, warranties and covenants shall survive the Closing), as follows:
A. Seller is a ______________ duly organized, validly existing and in good standing under the laws of the State of ____________________ and is qualified as a foreign entity and in good standing in every state where required by the Business.
B. Seller has full power and authority to execute and deliver the Agreement and to consummate the transactions contemplated hereby. The execution, delivery and consummation of this Agreement have been duly authorized and approved by such officers, directors, shareholders, partners and/or members of the Board as required by, and in accordance with, applicable laws and the instruments, agreements and documents controlling Buyer’s governance.
C. Seller has delivered to Buyer a list dated _________________ of Seller’s officers, directors, members, partners and/or shareholders, as appropriate, and Seller shall promptly notify Buyer of any change in its officers, shareholders, or directors on or before the Closing.
D. The balance sheet (“Balance Sheet”) of Seller prepared as of ____________
and the income statement (“Income Statement”) of Seller dated are attached as Exhibit E. The Balance Sheet and Income Statement have been prepared as of __________________. The Balance Sheet fairly presents the financial condition of Seller and reflects all assets, properties, debts and liabilities of Seller, fixed or contingent (including adequate provision for all taxes); and the Income Statement fairly presents the results of operations of Seller for the period which it covers. Seller has no liability as of the date of the Balance Sheet of any nature, whether accrued, absolute, contingent or otherwise, not disclosed, fully reflected or reserved against in the Balance Sheet.
E. Except as otherwise disclosed by Seller in writing, as of the date of this Agreement, the assets and properties of Seller are not, and as of the Closing they will not be, subject to any liens, encumbrances, claims, clouds, charges, equities or imperfections of any nature.
F. Neither the execution or delivery by Seller of this Agreement or the transactions contemplated hereby will: (i) result in the creation of any lien, security interest, or encumbrance upon any of the assets of Seller; (ii) violate any order, writ, injunction, decree, judgment, law, rule, regulation or ruling of any court or governmental authority applicable to Seller or any of its properties; or (iii) require any consent, approval or authorization of, or declaration, filing or registration with, any governmental or regulatory authority.
G. Seller, and where applicable any shareholder, officer, director, member or partner, are in violation of, or under investigation with respect to, or have been charged with or given notice of, any violation of any applicable law, statute, order, rule, regulation, policy or guideline promulgated or judgment entered, by any federal, state or local court or governmental authority relating to or affecting the Business, Seller or any of Seller’s assets.
H. Since the date of the Balance Sheet there has not been, and between the date hereof and the Closing Date there will not be, any materially adverse change in the financial condition, assets, liabilities, business or property of Seller, or with respect to its employees or customers, and Seller has no knowledge of any fact or contemplated event which may, in the future, cause any such materially adverse change. Since the date of the Balance Sheet, and pending the Closing, the business of the Seller has been, and will be, conducted only in the ordinary course.
I. Copies of all leases, instruments, agreements and other documents which have been delivered or may be delivered to Buyer by Seller pursuant to or in connection with this Agreement are and will be complete and correct as of the date hereof and as of the Closing. Exhibits B and C, attached hereto and made a part hereof, are lists of all contracts, leases, licenses and other agreements relating to the Business. Seller is not in default and has not received any notice of default under any such contract, lease, license or other agreement or under any other obligation relating to the Business.
J. As of the date hereof there is, and on the Closing Date there will be, no litigation at law or in equity, no proceeding before any commission or other administrative or regulatory authority, and no dispute, claim or controversy (including, without limitation, labor union strikes, elections, arbitrations, grievances, complaints, or administrative actions) pending, or to the knowledge of Seller threatened, against or affecting the business or property of Seller or it right to carry on it business and enter into and consummate the transactions contemplated by this Agreement.
K. Seller has previously delivered to Buyer copies of all plans, contracts, agreements, programs, and policies relating to, and all information referred to in, the following, if any: (i) all employment, bonus, profit sharing, percentage compensation, deferred compensation, pension, employee benefit, welfare and retirement plans, contracts and agreements, consulting agreements, and labor union and collective bargaining agreements to which Seller is a party or is subject, (ii) the wage rates for nonsalary and nonexecutive employees of Seller; (iii) all group insurance programs in effect for employees of Seller; and (iv) any increase in the compensation payable or to become payable by Seller, or any bonus, percentage compensation, service award or other similar benefit granted, made or accrued to the credit of any salaried employee, agent or consultant of Seller.
L. There is no unfair labor practice complaint against Seller pending before the National Labor Relations Board. There is no strike dispute, slowdown or work stoppage, or any union organizing campaign, pending, or to the best of the knowledge of Seller, threatened against or involving Seller. No labor agreements have been filed with Seller which has had, or may have, a materially adverse effect on Seller’s business. No collective bargaining agreement is currently being negotiated with Seller.
M. Seller has not employed any broker or finder or incurred any liability for any brokerage fees, commissions, finder fees or similar fees or expenses, and no broker or finder has acted directly or indirectly for Seller in connection with this Agreement or the transactions contemplated hereby, except:
N. On the date hereof Seller has, and on the Closing Seller shall have, duly prepared and timely filed all local, state and federal tax returns (including, without limitation, those which relate to FICA, withholding and other payroll taxes) required to be filed by such dates, and paid all taxes, penalties and interest with respect thereto. To the extent that any tax liabilities have accrued but not become payable, the full amounts thereof have been reflected as liabilities or reserved against on the Balance Sheet. After the Closing, Seller shall duly prepare and timely file any and all local, state and federal tax returns which pertain, in whole or in part, to the period on or before the Closing, and pay all taxes, penalties and interest with respect thereto.
0. On the date hereof, the properties and assets to be transferred under this Agreement are, and on the Closing they will be, in good condition and repair.
P. Seller shall permit Buyer and its representatives at all reasonable times during business hours and without interfering with the normal conduct of the business of Seller, to examine and have full access to all of the properties, books and records of Seller and to copy such books and records (at Buyer’s expense).
9. Representations and Warranties of Buyer.
Buyer represents and warrants to and covenants with Seller (which representations and warranties shall survive the Closing) as follows:
A. Buyer is a _______________ duly organized, validly existing and in good standing under the laws of the State of __________________.
B. Buyer has full power and authority to execute and deliver the Agreement and to consummate the transactions contemplated herein. The execution, delivery and consummation of this Agreement have been duly authorized and approved by such officers, directors, shareholders, partners and/or members of Buyer as required by, and in accordance with, applicable laws and the instruments, agreements and documents controlling Buyer’s governance.
C. As of the date hereof there is, and as of the Closing there will not be litigation at law or in equity, no proceeding before any commission or other administrative or regulatory authority, and no dispute, claim or controversy pending, or to the knowledge of Buyer threatened, against or affecting the right of Buyer to enter into and consummate the transactions contemplated by this Agreement.
D. Buyer has not employed any broker or finder or incurred any liability for any brokerage fees, commissions, finder fees or similar fees or expenses in connection with the transactions contemplated by this Agreement, and no broker or finder has acted on Buyer’s behalf except:
A. Seller indemnifies and holds harmless Buyer against any loss, damage or expense (including, without limitation, taxes, penalties, interest and reasonable attorney’s fees) asserted against or suffered by Buyer arising out of or resulting from (i) any breach of this Agreement by Seller; (ii) any inaccuracy in the representations, warranties, and covenants made by Seller in this Agreement, or in any certificate, schedule, exhibit or written instrument delivered or to be delivered under this Agreement; and (iii) any liability, obligation, demand, claim, action, or judgment, known or unknown, which may already have arisen or which may hereafter arise, by reason of or in connection with the operation of Seller’s business prior to the Closing.
(i) Buyer shall promptly notify Seller of any claim or demand, which Buyer determines, has given or could give rise to a right of indemnification under this Agreement. Unless Seller give Buyer written notice that either contests Buyer’s right to
indemnification for a claim or demand within thirty (30) days of the date Buyer notifies them of such a claim or demand, Seller shall be deemed to have acknowledged Buyer’s right to indemnification for such claim or demand pursuant to the provisions of this Agreement.
(ii) If any claim or demand relates to a claim or demand asserted by a third party against Buyer, Seller shall have the duty, at Seller’s expense, to defend any such claim or demand. Buyer shall make available to Seller and Seller’s representatives all records and other materials reasonably required by them for their use in contesting any such claim or demand. Buyer shall have the right, but not the obligation, to employ separate counsel, and to participate with Seller in the defense of any such claim or demand, but Buyer shall pay the fees and expenses of such separate counsel. In not event shall Buyer be obligated to defend any such claim or demand.
11. Conditions Precedent to the Obligations of Buyer.
The obligations of Buyer under this Agreement are subject to the following conditions precedent:
A. The representations, warranties and covenants made by Seller herein to Buyer shall be true and correct in all material respects on and as of the Closing Date with the same effect as if such representations, warranties and covenants had been made on and as of date of the Closing, and Seller shall have performed and complied with all agreements, covenants and conditions on their part required to be performed and complied with on or prior to the Closing.
B. Buyer shall have obtained all local, state and federal licenses, permits and other authorizations necessary for Buyer to conduct the Business in the State of ______.
C. The assets to be purchased by Buyer and the Business shall not have been adversely affected in any material way (whether or not covered by insurance) as a result of any fire, casualty, act of God or any labor dispute or disturbances.
D. If Seller is incorporated, Seller shall have delivered to Buyer on or before the Closing a certificate executed by its secretary setting forth the resolutions adopted by the directors and shareholders of Seller to authorize the execution and delivery of the Agreement and the consummation of the transactions contemplated hereby.
E. Seller shall have fully performed all covenants of Seller in this Agreement which must be performed by Seller on or before the Closing.
F. Buyer may at any time and from time to time waive any one or more of the foregoing conditions, but any such waiver must be in writing executed by Buyer to be effective.
12. Conditions Precedent to the Obligations of Seller.
The obligations of Seller shall be subject to the condition precedent that all warranties, representations, and covenants made by Buyer to Seller in this Agreement shall be true and correct in all material respects on and as of the Closing with the same effect as if such warranties, representations, and covenants had been made on and as of the date of the Closing, and Buyer shall have performed or complied with all agreements, covenants and conditions on its part required to be perfected or complied with on or prior to the Closing.
13. Covenants of Seller.
Seller covenants with Buyer as follows:
A. During the period from and after the Closing, within _____________ (time), Seller shall not directly or indirectly, or as a partner, shareholder, employee, manager or otherwise, own, manage, operate, control, be employed by, participate in, or otherwise be connected with any other business the same as or similar to the Business. In the event any of the provisions of this Section shall be determined to be invalid by reason of their scope or duration, this Section shall be deemed modified to such extent as required to cure the invalidity. In the event of a breach, or a threatened breach, of this covenant, Buyer shall be entitled to obtain an injunction restraining the commencement or continuance or the breach, as well as to any other legal or equitable remedies permitted by law.
B. If Seller is a corporation, limited liability company or limited partnership or Seller has filed a fictitious name registration, on or before the Closing, Seller shall file with the appropriate state office the documents appropriate to change its name to a name which is not the same as or similar to its current name or any trade or business name used in connection with the Business and/or to reflect that it no longer uses the fictitious name used in the Business.
14. Employee Benefit Plans.
Seller is not a party to nor a provider of any executive or employees’ compensation plan or agreement or compensatory plan or agreement with any independent contractor or employee of Seller (an “Employee Benefit Plan”) including, without limitation, any bonus, stock purchase, stock option, profit sharing, pension, savings, retirement or similar qualified or unqualified plan, group life insurance, group health insurance or group disability coverage, except as follows: _______________________________________.
If Seller is a party to or provider of any Employee Benefit Plan, Buyer shall not be obligated to continue to provide such plan or any other benefit to any person.
15. Consulting Agreement.
At the Closing, Buyer and Seller (or a principal of Seller) may enter into a Consulting Agreement in the form and with the content of the Consulting Agreement attach as Exhibit H.
Any notice under this Agreement shall be effectively given by fax or by a recognized over night delivery service such as FedEx, and addressed as follows (or at such change of address given by one party to the other in writing after the date hereof):
If to Buyer: ____________________________________________________________.
If to Seller: ____________________________________________________________.
17. No Waiver.
The waiver or failure of either party to exercise in any respect any right provided in this agreement shall not be deemed a waiver of any other right or remedy to which the party may be entitled.
18. Entirety of Agreement.
The terms and conditions set forth herein constitute the entire agreement between the parties and supersede any communications or previous agreements with respect to the subject matter of this Agreement. There are no written or oral understandings directly or indirectly related to this Agreement that are not set forth herein. No change can be made to this Agreement other than in writing and signed by both parties.
19. Governing Law.
This Agreement shall be construed and enforced according to the laws of the State of ____________________ and any dispute under this Agreement must be brought in this venue and no other.
20. Headings in this Agreement
The headings in this Agreement are for convenience only, confirm no rights or obligations in either party, and do not alter any terms of this Agreement.
If a court of competent jurisdiction to be invalid or unenforceable, then this Agreement, holds any term of this Agreement including all of the remaining terms, will remain in full force and effect as if such invalid or unenforceable term had never been included.
In Witness whereof, the parties have executed this Agreement as of the date first written above.