Business Sale Conditions Agreement

BUSINESS SALE CONDITIONS AGREEMENT

This Business Sale Conditions Agreement (the Agreement) is made and entered into as of Date: by and between Seller Name: , with principal place of business at Seller Address: (Seller), and Buyer Name: , with principal place of business at Buyer Address: (Buyer).

RECITALS

WHEREAS, Seller owns or holds the right to sell certain assets and goodwill associated with the business operating under the name Business Name: (the Business); and

WHEREAS, Buyer desires to purchase from Seller, and Seller desires to sell to Buyer, substantially all of the assets related to the Business on the terms and subject to the conditions set forth in this Agreement; and

WHEREAS, the parties desire to set forth certain conditions precedent to closing, the allocation of purchase price, and the respective representations, warranties, covenants and indemnities of the parties.

NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1. DEFINITIONS

For purposes of this Agreement, the following terms have the meanings set forth below:

"Affiliate" means, with respect to any Person, any other Person that controls, is controlled by, or is under common control with such Person. "Closing" means the consummation of the transactions contemplated by this Agreement in accordance with Section 4. "Excluded Assets" means the assets listed as excluded in Section 2.3. "Material Adverse Effect" means any change, event, fact or circumstance that, individually or in the aggregate, has a material adverse effect on the Business's financial condition, assets, liabilities, operations, or prospects, other than changes arising from general economic or industry conditions not disproportionally affecting the Business.

2. SALE AND PURCHASE

2.1 Sale of Assets. Subject to the terms and conditions of this Agreement, at the Closing Seller shall sell, assign, transfer and deliver to Buyer, and Buyer shall purchase from Seller, all of Seller's rights, title and interest in and to the assets listed on Schedule A (the Purchased Assets), free and clear of all liens, claims and encumbrances, except as expressly provided herein.

2.2 Purchase Price. The aggregate purchase price for the Purchased Assets shall be Purchase Price: $ payable as set forth in Section 4.3. The Purchase Price shall be adjusted following Closing pursuant to the adjustment procedures set forth in Section 5.

2.3 Excluded Assets. The parties agree that the following shall be Excluded Assets and not part of the transaction:

3. CONDITIONS PRECEDENT

3.1 Closing Conditions for Buyer. Buyer's obligation to consummate the transactions is subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date: (a) the representations and warranties of Seller contained in Section 6 shall be true and correct in all material respects as of the Closing Date; (b) Seller shall have performed in all material respects its covenants and agreements required to be performed prior to Closing; (c) all necessary consents, waivers and approvals of third parties and governmental authorities shall have been obtained; and (d) no injunction or other order shall prohibit Closing and no Material Adverse Effect shall have occurred.

3.2 Closing Conditions for Seller. Seller's obligation to consummate the transactions is subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date: (a) the representations and warranties of Buyer in Section 6 shall be true and correct in all material respects as of the Closing Date; (b) Buyer shall have delivered the Purchase Price as provided in Section 4; and (c) Buyer shall have performed in all material respects its covenants and agreements required to be performed prior to Closing.

4. CLOSING

4.1 Closing Date. The Closing shall occur on the earlier of the date mutually agreed by the parties or Closing Date: (the Closing Date), unless another date is agreed in writing by the parties.

4.2 Closing Deliveries by Seller. At Closing Seller shall deliver to Buyer (a) a bill of sale and assignment conveying the Purchased Assets, (b) good and valid transfer documentation for any intellectual property, and (c) certificates and other instruments reasonably necessary to effectuate the transfer of the Purchased Assets, each in form and substance reasonably satisfactory to Buyer.

4.3 Payment at Closing. At Closing, Buyer shall pay to Seller by wire transfer in immediately available funds the portion of the Purchase Price payable at Closing, less any amounts withheld pursuant to Section 5. Any escrow or holdback amounts shall be paid into the Escrow Account established in accordance with this Agreement.

5. PURCHASE PRICE ADJUSTMENT AND ESCROW

5.1 Post-Closing Adjustment. Within 60 days following the Closing, Buyer shall deliver to Seller a statement setting forth in reasonable detail any adjustments to the Purchase Price based upon the closing balance sheet, net working capital adjustments, and other agreed adjustments. The parties shall negotiate in good faith to resolve any disputes arising from such statement.

5.2 Escrow. As security for the performance of Seller's indemnification obligations, at Closing Buyer shall retain from the Purchase Price an Escrow Amount of $ to be held in escrow in accordance with the escrow agreement executed by the parties.

6. REPRESENTATIONS AND WARRANTIES

6.1 Seller Representations. Seller represents and warrants to Buyer that as of the date of this Agreement and as of the Closing: (a) Seller is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization and has full corporate power and authority to enter into and perform this Agreement; (b) Seller has good and marketable title to the Purchased Assets, free and clear of all liens other than Permitted Encumbrances; (c) Seller has disclosed to Buyer in writing all material liabilities, actions, claims, proceedings or investigations that could reasonably be expected to give rise to a Material Adverse Effect; and (d) Seller's financial statements fairly present its financial condition in all material respects.

6.2 Buyer Representations. Buyer represents and warrants to Seller that as of the date of this Agreement and as of the Closing: (a) Buyer is duly organized, validly existing and in good standing; (b) Buyer has the corporate power and authority to enter into and perform this Agreement; and (c) the execution and delivery of this Agreement by Buyer and the consummation of the transactions will not violate any agreement binding on Buyer.

6.3 Survival. The representations and warranties contained in this Agreement shall survive the Closing for a period of 18 months, except as otherwise agreed in writing.

7. COVENANTS

7.1 Conduct of Business. Between the date of this Agreement and the Closing Date, Seller shall operate the Business in the ordinary course consistent with past practice and shall not take any action that would reasonably be expected to cause a Material Adverse Effect or to materially impair the value of the Purchased Assets.

7.2 Further Assurances. From time to time following the Closing, each party shall execute and deliver such other instruments and take such other actions as may be reasonably necessary or desirable to carry out the provisions of this Agreement.

8. INDEMNIFICATION

8.1 Seller Indemnification. Seller shall indemnify, defend and hold harmless Buyer and its Affiliates, officers, directors, employees and agents from and against any and all Claims (including reasonable fees and expenses of counsel) arising out of: (a) any breach of any representation, warranty or covenant of Seller contained in this Agreement; and (b) any liabilities relating to periods prior to the Closing, except to the extent such liabilities are specifically assumed by Buyer in writing.

8.2 Claim Procedure and Limitations. A party seeking indemnification shall provide written notice to the indemnifying party of any Claim promptly after becoming aware of it. The indemnifying party shall have the right to assume the defense of such Claim; provided that the indemnified party may participate in such defense with counsel at its own expense. The aggregate liability of Seller under this Section shall not exceed the Purchase Price except in case of fraud or willful misconduct.

9. LIMITATION OF LIABILITY

Except for liabilities resulting from fraud, wilful misrepresentation or intentional misconduct, neither party shall be liable to the other for consequential, incidental, exemplary or punitive damages arising out of or relating to this Agreement.

10. NOTICES

Notices required or permitted under this Agreement shall be in writing and shall be delivered personally, by certified mail (return receipt requested), or by nationally recognized overnight courier to the addresses set forth below or to such other address as a party may designate by notice to the other in accordance with this Section. Notice shall be effective upon receipt.

11. AMENDMENT; WAIVER

This Agreement may be amended or modified only by an instrument in writing signed by both parties. No waiver of any provision shall be effective unless in writing and signed by the party granting the waiver. No delay or failure to exercise any right shall constitute a waiver of that right.

12. GOVERNING LAW

This Agreement shall be governed by and construed in accordance with the laws of Governing Jurisdiction: without regard to principles of conflicts of law.

13. ENTIRE AGREEMENT

This Agreement, together with the Schedules and Exhibits hereto and any documents delivered at Closing, constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written.

14. SEVERABILITY

If any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

15. COUNTERPARTS; ELECTRONIC SIGNATURES

This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which taken together shall constitute one and the same instrument. Facsimile or electronic (including PDF) signatures shall be binding for all purposes.

Sign Now