Asset Purchase And Sale Agreement (Long form - Comprehensive)
THIS ASSET PURCHASE AND SALE AGREEMENT (Agreement) made this [date] by and between [name], a [state] company with offices at [address] (Purchaser), and [name], a [state] company with offices at [address] (Seller).
W I T N E S S E T H:
WHEREAS, Seller is willing to sell to Purchaser and Purchaser is willing to buy from Seller, upon the terms and conditions hereinafter set forth, only those assets held by Seller in its [describe] business (Seller's Business), as more fully set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the parties hereto agree as follows:
1. Sale of Assets. Upon the terms and subject to the conditions provided in this Agreement, Seller shall, at the Closing and as of the Closing Date (as said terms are hereinafter defined), convey, sell, transfer, assign, and deliver to Purchaser, and Purchaser shall purchase from Seller, all of the business and assets used by Seller in the conduct of Seller's Business, as such assets exist on the Closing Date (as such term is hereafter defined), including (hereafter collectively referred to as the Assets):
a. All inventories, including finished goods, work in process, and raw materials owned by Seller's Business and used in Seller's Business. Set forth in Schedule 1(a) attached hereto [omitted] is a list of the inventories of the Seller's business as of [date].
b. The goodwill and all slogans or trade names used by Seller in Seller's Business, including only the names listed in Schedule 1(b) attached hereto [omitted], and all customer lists relating to the present and former customers of Seller's Business, which customer lists are attached hereto as Schedule 1(b).
c. The accounts receivable of Seller's Business and any receipts collected from such accounts receivable by Purchaser after the Closing. Set forth in Schedule 1(c) attached hereto [omitted] is a list of all of the accounts receivable of the Seller's Business as of [date].
d. The machinery, equipment, tools, dies, supplies, leasehold improvements, furniture, and fixtures of Seller's business listed in Schedule 1(d) attached hereto [omitted], and all employee lists, files, papers, books, records, sales and advertising materials, and records, sales, and purchase correspondence, affecting or pertaining to Seller's ownership and/or use of the Assets.
e. Any and all rights and interest in and to any licenses and commercially Practiced patents, copyrights, trademarks, trademark registration applications (including all reissues, divisions, continuations and extensions thereof), patent applications, and patent disclosures docketed, if any, including only those listed in Schedule 1(e) attached hereto [omitted].
f. The rights and interests in and to the intellectual property rights and proprietary expertise, including, without limitation, proprietary information, technical and technological data, know-how, processes, invention conception memoranda, manufacturing and engineering data, computer programs, and sales and advertising information used in Seller's Business listed in Schedule 1(f) attached hereto [omitted].
g. The permits, authorisations, approvals, or indicia of authority to operate and maintain Seller's business as issued by any federal, state, or local government, including only those listed in Schedule 1(g) attached hereto [omitted].
h. All right, title, and interest of Seller in and to (A) the leases (for real or personal property) and contracts listed in Schedule 1(h) attached hereto [omitted]; (B) all purchase orders given by Seller for the purchase of products, materials, supplies, parts, and other items used in the Seller's Business; and (C) all purchase orders submitted to Seller by customers of Seller in business with respect to which Seller has not received full payment thereon on or prior to the Closing Date. All of such leases, contracts, purchase orders, and sales commitments specified in clauses (A), (B), and (C) of this Section 1(h) are listed in Schedule 1(h) and are hereafter collectively referred to as the Assumed Contracts;
i. Such prepaid expenses of the Seller's Business as are set forth in Schedule 1(i) attached hereto [omitted].
OPTIONAL
Purchaser acknowledges that the Assets do not include cash or any real property other than the leases of real property described in Schedule 1(h) attached hereto [omitted].
2. Purchase Price for the Assets. Purchaser shall pay to Seller for the Assets a purchase price (the Purchase Price) equal to .......... dollars ($..........) payable as follows:
a. .......... dollars ($..........) by way of wire transfer into Seller's designated bank account on the Closing Date. [Insert other terms; consider security if deferred purchase price.]
b. The Purchase Price is based upon the following allocation [other alternatives available; consult tax counsel and CPA]:
Furniture, Fixtures and Equipment $
Accounts Receivable; Intercompany
Receivables (Net)
Inventory
Lease
Goodwill
Leasehold Improvements
Total Purchase Price. The parties agree to use the above allocation for purposes of filing their local, state, and federal income tax returns.
c. As of the close of business on the Closing Date, the Purchaser shall assume and thereafter pay, perform, or discharge when due all of the following liabilities and obligations (Assumed Liabilities) and no other liabilities or obligations:
i. The liabilities as of the Closing under the Assumed Contracts listed in Schedule 1(h);
ii. The trade accounts payable related to the Seller's Business and operations listed in Schedule 2(c)(ii) attached hereto
[omitted];
The Purchaser shall have at all times hereafter any and all responsibility to all creditors and all third parties and to the Seller with respect to the Assumed Liabilities and shall indemnify and hold the Seller and its shareholders, officers, and directors and their respective successors, heirs, and assigns harmless from and against any and all cost, loss, and liability (including reasonable solicitor fees) arising from the Assumed Liabilities.
d. Excluded Liabilities. With the exception of the Assumed Liabilities, Purchaser shall assume no liabilities or other obligations of Seller (Excluded Liabilities).
3. Documents to Be Delivered at Closing. At the Closing:
a. Seller shall execute and deliver to Purchaser a Bill of Sale fully executed, conveying, selling, transferring, and assigning to Purchaser all of the Assets free and clear of any and all defects, caveats, liens, encumbrances, and charges.
b. Seller shall execute or endorse and deliver to Purchaser other duly executed separate instruments of sale, assignment, or transfer, including assignments of contract rights or leases in form suitable, where appropriate, for filing or recording with the appropriate office or agency for various items of the Assets or other rights of Seller to be conveyed hereunder, where, the same are necessary in order to vest or evidence title hereto in Purchaser.
c. Seller shall execute or endorse and deliver instruments effectively assigning and transferring to Purchaser all intangible assets included in the Assets and containing appropriate warranties of title, together with the consents, where required, of third parties with respect to such...
(Excerpt)
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