Asset Purchase Agreement Template

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Asset Purchase Agreement

 

 

This Asset Purchase Agreement (“Agreement”) is made and entered into as of the date of the last signature below (the “Effective Date”), by and between Company A, a corporation organized and existing under the laws of the State of Delaware and located at ______________ (“Seller”), and Company B, a corporation organized and existing under the laws of the State of New York and located at _____________ (“Purchaser”). Seller and Purchaser hereby agree as follows:

 

  1. Sale of Assets

 

Seller hereby sells, assigns, transfers, conveys and delivers to Purchaser, and Purchaser hereby purchases from Seller, all of the right, title and interest of Seller in and to the following assets, properties and rights, free and clear of all liabilities and encumbrances (the “Assets”):

(a) all real property, buildings and improvements located at [PROPERTY ADDRESS], together with all fixtures, furniture, equipment, inventory, leasehold improvements, and other personal property used in the operation of the business conducted at such location (the “Real Property”);

(b) all intangible assets, including, without limitation, all licenses, permits, contracts, customer lists, telephone numbers, and trade names used in connection with the business conducted at the Real Property (the “Intangible Assets”);

(c) all cash, cash equivalents, and marketable securities on hand as of the Effective Date (the “Cash Assets”); and

(d) all accounts receivable and other intangible personal property of a like nature held by Seller on the Effective Date (the “Receivables”).

 

  1. Purchase Price

 

The total purchase price for the Assets (the “Purchase Price”) is $[AMOUNT]. The Purchase Price shall be allocated among the Assets as follows:

(a) $[AMOUNT] for the Real Property;

(b) $[AMOUNT] for the Intangible Assets;

(c) $[AMOUNT] for the Cash Assets; and

(d) $[AMOUNT] for the Receivables.

 

  1. Closing

 

The closing of the purchase and sale of the Assets (the “Closing”) shall take place on [DATE] at the offices of [LAW FIRM], located at [ADDRESS] (the “Closing Location”), or at such other place as the parties may mutually agree.

 

  1. Seller’s Representations and Warranties.

 

Seller hereby represents and warrants to Purchaser as follows:

(a) Organization and Qualification . Seller is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. Seller has all requisite power and authority to own, operate and lease its properties and assets and to carry on its business as presently conducted.

 

(b) Authorization; Enforceability . The execution, delivery and performance of this Agreement by Seller and the consummation by Seller of the transactions contemplated hereby have been duly and validly authorized by all necessary corporate action on the part of Seller. This Agreement has been duly and validly executed and delivered by Seller and constitutes the legal, valid and binding obligation of Seller, enforceable against Seller in accordance with its terms.

 

(c) No Conflict . The execution and delivery of this Agreement and the consummation by Seller of the transactions contemplated hereby will not (i) conflict with or result in any breach of the terms, conditions or provisions of Seller’s certificate of incorporation or bylaws or (ii) conflict with, or constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement or instrument to which Seller is a party or by which Seller or any of its assets is bound.

 

(d) Title to Assets . Seller has good and marketable title to the Assets, free and clear of all liens, claims, security interests, charges and encumbrances of any kind whatsoever.

 

(e) No Brokers . Seller has not retained or consulted with any broker, finder or investment banker in connection with the transactions contemplated by this Agreement. Seller shall not be obligated to pay any broker’s, finder’s or investment banker’s fee or commission in connection with this Agreement or the transactions contemplated hereby.

 

(f) Disclosure . Seller has furnished Purchaser with copies of the following financial statements of Seller prepared in accordance with generally accepted accounting principles consistently applied (the “Financial Statements”): (i) the balance sheet of Seller as of [DATE], (ii) the income statement of Seller for the fiscal year ended [DATE], and (iii) the statement of cash flows of Seller for the fiscal year ended [DATE]. The Financial Statements fairly present the financial position of Seller as of the respective dates thereof and the results of Seller’s operations for the fiscal periods indicated. Seller has not suffered any material adverse change in its business, condition (financial or otherwise), properties, assets or liabilities since the respective dates of the Financial Statements.

 

(g) Compliance with Laws . To Seller’s knowledge, Seller and its properties and assets are in compliance with all applicable federal, state, local and foreign laws, ordinances, rules, regulations, orders, judgments, decrees, permits and licenses.

(h) Environmental Matters . To Seller’s knowledge, (i) there are no hazardous or toxic substances or wastes on, under or about any of Seller’s properties or assets which would be subject to regulation under any environmental protection law, (ii) Seller is not in violation of any environmental protection law with respect to any of its properties or assets, and (iii) Seller has not received any notice of any violation of any environmental protection law with respect to any of its properties or assets.

 

(i) Employee Benefit Plans . There are no “employee benefit plans” (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended) maintained by Seller for the benefit of its employees.

 

(j) Tax Returns . Seller has timely filed, or caused to be filed, all federal, state, local and foreign tax returns required to be filed by it and all such returns (including any amendments thereto) are true, correct and complete in all material respects.

 

(k) Taxes . Seller has paid, or caused to be paid, all taxes, assessments, levies, interest and penalties due and owing by it, whether or not shown as liabilities on any of the Financial Statements.

 

(l) Litigation . There is no action, suit, proceeding, claim or investigation pending or, to Seller’s knowledge, threatened against Seller before any court or governmental agency which, if adversely determined, would have a material adverse effect on the Business or the Assets.

 

(m) Absence of Undisclosed Liabilities . Seller has no liabilities or obligations of any nature (whether accrued, absolute, contingent or otherwise and whether due or to become due) that are not reflected or reserved against on the Financial Statements.

 

(n) Insurance . Seller has procured and maintained all insurance coverage required by law or prudent

 

  1. Expenses

 

The parties are responsible for their own fees, including legal counsel, accountants, and other agents incurred pursuant to this Agreement regardless of whether this Agreement is executed

 

  1. Indemnification

 

The Purchaser and Seller agree to indemnify and hold harmless the other from any claim, damage, liability, loss, expense, arising out their failure to perform the obligations set forth in this agreement.

 

  1. Miscellaneous

 

(a) Dispute Resolution. Any dispute arising out of or related to this Agreement that the Purchaser and Seller are unable to resolve by themselves shall be settled by arbitration in the State of _____________ in accordance with the rules of the American Arbitration Association. The written decision of the arbitrator(s), as applicable, shall be final and binding. Judgment on a monetary award or enforcement of injunctive or specific performance relief granted by the arbitrator(s) may be entered in any court having jurisdiction over the matter.

 

(b) Binding Effect. This Agreement shall be binding upon and inure to the benefit of the Purchaser and Seller and their respective legal representatives, heirs, administrators, executors, successors and permitted assigns.

 

(c) Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable in whole or in part, the remaining provisions shall not be affected and shall continue to be valid, legal and enforceable as though the invalid, illegal or unenforceable parts had not been included in this Agreement.

 

(d) Governing Law. The terms of this Agreement shall be governed by and construed in accordance with the laws of the State of ____________ not including its conflicts of law provisions.

 

(e) Headings. The section headings herein are for reference purposes only and shall not otherwise affect the meaning, construction or interpretation of any provision in this Agreement.

 

(f) Entire Agreement. This Agreement contains the entire understanding between the parties and supersedes and cancels all prior agreements, whether oral or written, with respect to such subject matter.

 

(g) Amendment. This Agreement may be amended or modified only by a written agreement signed by both parties.

 

(h) Notices. Any notice or other communication given or made to any party under this Agreement shall be in writing and delivered by hand, sent by overnight courier service or sent by certified or registered mail, return receipt requested, to the address in Exhibit 1 or to another address as that party may subsequently designate by notice and shall be deemed given on the date of delivery.

 

(i) Waiver. No party shall be deemed to have waived any provision of this Agreement or the exercise of any rights held under this Agreement unless such waiver is made expressly and in writing. Waiver of a breach or violation of any provision of this Agreement shall not constitute a waiver of any other subsequent breach or violation.

 

IN WITNESS WHEREOF, this Agreement has been executed and delivered as of the date first written above.

 

Purchaser:

Signature: ________________

Full Name: ________________

 

Seller:

Signature: ________________

Full Name: ________________