VIEWS: 536 PAGES: 9 CATEGORY: Selling a Business POSTED ON: 2/12/2011
This agreement for the sale of substantially all of the assets of a corporation (Asset Purchase Agreement) is used when a corporation is liquidating and selling its assets to a third party. The agreement sets forth the terms of the sale and includes provisions regarding purchase price, closing date, assumption of liabilities and assignment of rights. This document contains numerous of the standard clauses commonly found in asset purchase agreements and can be customized to address the specific needs of the contracting parties. This agreement should be utilized by a business owner or partners planning to sell a business or corporation.
This agreement for the sale of substantially all of the assets of a corporation (Asset Purchase Agreement) is used when a corporation is liquidating and selling its assets to a third party. The agreement sets forth the terms of the sale and includes provisions regarding purchase price, closing date, assumption of liabilities and assignment of rights. This document contains numerous of the standard clauses commonly found in asset purchase agreements and can be customized to address the specific needs of the contracting parties. This agreement should be utilized by a business owner or partners planning to sell a business or corporation. Agreement for Sale of Substantially all of the Assets of a Corporation – Asset Purchase Agreement This Asset Purchase Agreement is made this the (date), between (Name of Seller Corporation), a corporation organized and existing under the laws of the state of ______________, with its principal office located at (street address, city, state, zip code), referred to herein as “Seller”, and (Name of Buyer Corporation), a corporation organized and existing under the laws of the state of ______________, with its principal office located at (street address, city, state, zip code), referred to herein as “Buyer”. 1. Sale of Business Seller shall sell, assign, and deliver to Buyer and Buyer shall purchase and accept, on the closing date, all the assets and properties owned by Seller or in which Seller has any right, title, or interest in, of every kind and description, wherever located, including all property tangible or intangible and real or personal, goodwill, processes, research and development projects, designs, patents, accounts receivable, bank accounts, cash, securities, claims, contract rights, the right to use the names (Name of Corporation) or (Trade Name of Corporation) or any similar name or names in connection with any (type of business) business, and all other names, trademarks, or copyrights used by Seller in connection with its business or products, all as more specifically described and set forth in Exhibit A, which is attached and incorporated by this reference. Seller further shall sell and assign to Buyer and Buyer shall purchase and accept, on the closing date, that parcel of land consisting of approximately (number) acres more or less at (street address, city, state, zip code), on which the plant of Seller is situated, as is more precisely described in Exhibit B, which is attached and incorporated by this reference, together with Seller's interest in the improvements on the premises. 2. Consideration and Assumption of Liabilities In consideration of the sale of assets and properties under this Agreement and of all other things done and agreed to be done by Seller, Buyer shall pay to Seller on the closing date $_____________ and further shall assume and pay all of Seller’s liabilities as reflected on its Balance Sheet as of (date), prepared according to generally accepted accounting principles and reflected in Exhibit C, which is attached and incorporated by this reference. However, the liabilities shall not include the following: A. Any liabilities accrued on or before (date) that were not reflected on the Balance Sheet as of that date and set out in Exhibit D. B. Any liabilities accrued after (date), the date of the Balance Sheet set out in Exhibit D, that were not incurred in the ordinary course of business. C. Any liabilities whenever accrued for federal or state income taxes or interest or penalties. D. Any liabilities not reflected on the (date) Balance Sheet set out in Exhibit D for expenses incurred in connection with the audit of income returns. © Copyright 2013 Docstoc Inc. registered document proprietary, copy not 2 E. Any costs or expenses of whatever nature connected with or resulting from the negotiation or consummation of this Agreement or the sale or transfer of assets pursuant to this Agreement. F. Any liabilities of any person or firm other than Seller. 3. Instruments of Transfer The sales, assignments, and deliveries to be made to Buyer pursuant to this Agreement shall be affected by deeds, bills of sale, endorsements, checks, and other instruments of transfer in such form as Buyer shall reasonably request. Seller shall prepare appropriate forms of instruments of transfer and conveyance in conformity with this Agreement and shall submit them to Buyer for examination at least (number) days in advance of the closing date. Any time and from time to time after the closing date, on Buyer's request, Seller will do, execute, acknowledge, and deliver all such further acts, deeds, assignments, transfers, and powers of attorney as may be required in conformity with this Agreement for the adequate assigning, transferring, granting, and confirming to Buyer of the assets and properties sold to Buyer. 4. Assignment of Contract Rights If any contract, license, lease, commitment, or sales or purchase order assignable to Buyer under this Agreement may not be assigned without the consent of the other party to the same, Seller will use their best efforts to obtain the consent of the other party to the assignment. If any such consent cannot be obtained, the purchase price under this Agreement shall be adjusted downward by the amount allocated to the affected contract rights in Exhibit E. 5. Accounts Receivable After the closing date, Buyer shall have the authority to collect all receivables transferred to Buyer under this Agreement and to indorse without recourse and without warranties of any kind the name of Seller on any checks or evidence of indebtedness received by Buyer on account of any receivables. Seller will transfer and deliver to Buyer any cash or other property that Seller may receive in respect to any receivables. 6. Books and Records Seller shall have the right to retain minute books, stock books, and other corporate records of Seller having exclusively to do with a corporate organization or capitalization. All other records and books of account of every kind and nature shall be delivered to, and become the property of, Buyer. Each party shall have reasonable access to and the right to make extract copies of all books, records, and documents referred to in this Agreement that are in the possession of the other party. 7. Compliance with Bulk Transfer Requirements Buyer shall give notice, in compliance with the applicable bulk transfer provisions of the Uniform Commercial Code as enacted and in force in (Name of State) of the bulk transfer contemplated by this Agreement. At least (number) days before the closing date, Seller shall furnish Buyer with the information necessary to prepare the notice, including the names and business addresses of all creditors of Seller and of all persons known to Seller to assert claims against Seller, and the amount of indebtedness due and owing to each or claimed by each. © Copyright 2013 Docstoc Inc. registered document proprietary, copy not 3 8. Closing The closing date shall be (date), and the closing shall take place on that date at (time), in the offices of (Name of Buyer), at (street address, city, state, zip code), or at such other time and place as the parties shall agree. 9. Representations of Seller Seller represents, warrants, and agrees: A. Seller is a corporation duly organized, existing, and in good standing under the laws of (Name of State), and is authorized and entitled to carry on its business in (Name of State). Seller is not qualified to do business in any other state. (Name of corporation) has no subsidiaries. Its capital stock authorized and outstanding consists of (number) shares of common stock. B. The financial statements of Seller relating to the (number) months ending (date), and the financial statements relating to the (number) months ending (date), each prepared by independent public accountants for Seller and delivered to and reviewed by accountants for Buyer during the course of the negotiations regarding this Agreement, fairly reflect the financial position of Seller as of the end of those periods and the result of operations during those periods. C. Seller have good and marketable title to all of the real property set forth and described in Exhibit B, which is attached and incorporated by this reference. The real property is free and clear of all mortgages, liens, and encumbrances and is not subject to any right-of-way, easement, or restriction that interferes with the present use of the real property. D. At least (number) days before the closing date, Seller will furnish to Buyer an accurate list and summary description, certified by the Treasurer of Seller, of all machinery, equipment, facilities, and other tangible assets in Seller’s plant and of all inventories of every kind and nature, all of which are free and clear of all mortgages, liens, and encumbrances. E. All assets and properties that were used in the business of Seller on the date of this Agreement, or that were reflected in the balance sheet dated (date of balance sheet), which are described and set forth in Exhibit D are owned by Seller, free and clear of all mortgages, liens, and encumbrances. F. Seller is the owner of U.S. Patent No. _________ (dated) date, free and clear of any liens, encumbrances, or licenses. Seller has no knowledge of pending or threatened claims of infringement or interference involving this Patent. G. Seller is not a party to any employment agreement, labor-union agreement, agreement for the future purchase of materials, supplies, or equipment, sales agreement, pension, profit-sharing, or retirement plan or agreement, distributorship or sales agency agreement, or lease agreement that relates to any period beyond the closing date, whether written or oral, except as listed in Exhibit F. Copies of all such written agreements have been supplied to Buyer, and Buyer has been advised of the terms of all such oral agreements. © Copyright 2013 Docstoc Inc. registered document proprietary, copy not 4 H. Seller enjoys a very good relationship with (Name of Customer), and there has been no significant difficulties experienced that would indicate that this good relationship will not continue past the closing date. Seller has not now, nor has it ever had, any Agreement, arrangement, or understanding with (Name of Customer) with respect to discriminatory allowances, preferential or special terms of sale, or exclusive dealing or special delivery terms, and nothing has been done or said by any of Seller to cause (Name of Customer) to expect any such special conditions as a prerequisite for its continued purchase of products from (Name of Corporation) or its successor corporation. I. Seller is not in default under any contract, Agreement, lease, or other document to which it is a party, and has complied with all laws, regulations, and ordinances applicable to its business to the date of this Agreement. J. Since (date), the date of the Balance Sheet set out in Exhibit C, Seller has not issued any stock, bonds, or other corporate securities, incurred any obligations or liability except current liabilities in the ordinary course of business, declared or made any payment or distribution to stockholders, purchased or redeemed any shares of capital stock, mortgaged or pledged any of its assets, tangible or intangible, sold or transferred any assets or cancelled any debts or claims except in the ordinary course of business, sold, assigned, or licensed any patents, trademarks, or trade names, suffered any extraordinary losses or waived any rights except in the ordinary course of business, or entered into any other transaction except in the ordinary course of business. K. Since (date), the date of the balance sheet set out in Exhibit C, there has been no substantial change in the financial policies, account relations, or marketing activities of Seller. L. Seller’s accounts receivable as reflected in its Balance Sheet as of (date), set forth in Exhibit C, and as later acquired prior to the closing date, will be collectible to the extent that they exceed $__________________. M. Since (date), the date of the Balance Sheet set out in Exhibit C, there has been no substantial loss of value in any of the physical assets or properties of Seller used in Seller’s business, ordinary wear and tear excepted. N. On the closing date Seller change its name to a dissimilar name. 10. Conditions Precedent to Buyer’s Obligations The obligations of Buyer under this Agreement are conditioned on the following all having occurred on or before the closing date: A. All actions, proceedings, instruments, and documents required of Seller under this Agreement shall be in a form approved by counsel for Buyer, provided that such approval shall not be unreasonably withheld. © Copyright 2013 Docstoc Inc. registered document proprietary, copy not 5 B. The representations and warranties made by Seller in this Agreement shall be substantially correct on the closing date, except as affected by transactions contemplated in this Agreement and changes occurring in the ordinary course of business, with the same force and effect as though the representations and warranties had been made on the closing date. C. The instruments executed and delivered to Buyer by each of Seller pursuant to this Agreement are valid in accordance with their terms, and effectively vest in Buyer good and marketable title to the assets and business as contemplated by this Agreement, free and clear of any liabilities, obligations, and encumbrances, except those liabilities and obligations expressly assumed by Buyer as provided in this Agreement. 11. Broker’s Fees Buyer shall compensate (Name of Broker) for its assistance in arranging this sale. Each party represents and warrants to each other party that no other person or firm brought about the sale or is entitled to compensation in respect to it. 12. Employment of Major Shareholder of Seller Buyer shall employ (Name of Majority Shareholder), hereinafter called Shareholder for a period of (number) years beginning on the closing date for an aggregate remuneration of $_____________ payable in _____ equal monthly installments over a period of _____ months. Shareholder shall accept such employment, and make himself available, on a full-time basis, to perform services comparable in scope and nature to those that Shareholder has previously performed for (Name of Corporation). Further, any patents or patent applications, whether domestic or foreign, any inventions, whether developed or in the process of development, any research and development projects, and any designs and processes that relate to (type of enterprise) that Shareholder may develop during his period of employment shall belong to and be the property of Buyer. At the end of the prescribed term, either party may terminate the employment relationship, or it may be extended subject to such modifications as may be agreed on by both parties. 13. Expenses of Negotiation and Transfer Each party shall pay the party's own expenses, taxes, and other costs incident to or resulting from this Agreement, whether or not the transactions contemplated are consummated. The costs of Seller shall include the preparation of documents of transfer and documentary stamp taxes. Buyer's costs shall include fees for the filing or recording of instruments of transfer. 14. Notices Any notice to be given under this Agreement shall be given in writing and delivered personally or by registered or certified mail, postage prepaid, as follows: A. If to Buyer, addressed to: (Name of Officer), at (street address, city, state, zip code). B. If to Seller, addressed to: (Name of Officer), at (street address, city, state, zip code). © Copyright 2013 Docstoc Inc. registered document proprietary, copy not 6 15. Severability The invalidity of any portion of this Agreement will not and shall not be deemed to affect the validity of any other provision. If any provision of this Agreement is held to be invalid, the parties agree that the remaining provisions shall be deemed to be in full force and effect as if they had been executed by both parties subsequent to the expungement of the invalid provision. 16. No Waiver The failure of either party to this Agreement to insist upon the performance of any of the terms and conditions of this Agreement, or the waiver of any breach of any of the terms and conditions of this Agreement, shall not be construed as subsequently waiving any such terms and conditions, but the same shall continue and remain in full force and effect as if no such forbearance or waiver had occurred. 17. Governing Law This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of __________. 18. Attorney’s Fees In the event that any lawsuit is filed in relation to this Agreement, the unsuccessful party in the action shall pay to the successful party, in addition to all the sums that either party may be called on to pay, a reasonable sum for the successful party's attorney fees. 19. Mandatory Arbitration Any dispute under this Agreement shall be required to be resolved by binding arbitration of the parties hereto. If the parties cannot agree on an arbitrator, each party shall select one arbitrator and both arbitrators shall then select a third. The third arbitrator so selected shall arbitrate said dispute. The arbitration shall be governed by the rules of the American Arbitration Association then in force and effect. 20. Entire Agreement This Agreement shall constitute the entire agreement between the parties and any prior understanding or representation of any kind preceding the date of this Agreement shall not be binding upon either party except to the extent incorporated in this Agreement. 21. Modification of Agreement Any modification of this Agreement or additional obligation assumed by either party in connection with this Agreement shall be binding only if placed in writing and signed by each party or an authorized representative of each party. 22. Assignment of Rights The rights of each party under this Agreement are personal to that party and may not be assigned or transferred to any other person, firm, corporation, or other entity without the prior, express, and written consent of the other party. 23. Counterparts © Copyright 2013 Docstoc Inc. registered document proprietary, copy not 7 This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute but one and the same instrument. 24. Compliance with Laws In performing under this Agreement, all applicable governmental laws, regulations, orders, and other rules of duly-constituted authority will be followed and complied with in all respects by both parties. WITNESS our signatures as of the day and date first above stated. (Name of Seller) (Name of Buyer) By:____________________________ By:_______________________________ (Printed Name & Office in Corporation) (Printed Name & Office in Corporation) (Signature of Officer) (Signature of Officer) Attach Exhibits © Copyright 2013 Docstoc Inc. registered document proprietary, copy not 8
Pages to are hidden for
"Agreement for Sale of Assets of Corporation"Please download to view full document