Asset Purchase Agreement
(Pro-Buyer) (Short Form) (FL)

Summary

This short-form asset purchase agreement is for use in the cash acquisition of assets and may be appropriate in a transaction where a reduced set of provisions is sufficient, such as where the acquisition's structure and acquired assets are straight-forward or where the parties desire to reduce negotiation. This template includes practical guidance, drafting notes, alternate clauses and optional clauses. Click here to see recent examples of publicly filed asset purchase agreements in Market Standards—M&A. This template is drafted in a way such that buyer will be purchasing real estate, property leases, inventory, machinery, equipment, and vehicles used in the business. Depending on the nature of the business, some or all of these assets will need to be modified and tailored to the transaction. This template assumes that the transaction will sign and close simultaneously. As a result, there are no closing conditions (or materiality scrapes), pre-closing covenants, or termination provisions that would otherwise be customary in a two-step transaction. The seller bears the risks associated with obtaining any third-party consents or approvals prior to the signing and closing. If such consents and approvals are not obtained prior to the closing, then the buyer assumes the risks associated with closing over consents and approvals. This template is intended to be in accord with Florida law and assumes that both the buyer and seller are Florida corporations. The Florida Business Corporations Act requires the sale of all or substantially all of the assets of a corporation be submitted to corporate shareholders for approval. Fla. Stat. § 607.1202(1). Unless a higher proportion is provided otherwise by the corporation's articles of incorporation, a simple majority of shareholders entitled to vote and who are present at a meeting of shareholders at which a quorum has been established must vote to approve the transaction. Fla. Stat. Ann. § 607.1202(5). This short-form asset purchase agreement assumes that the seller is selling substantially all of its assets, and that it is a private and closely held corporation, and as such, the required approvals by the board of directors and the shareholders have been obtained prior to signing or will be delivered simultaneously with closing. This short-form asset purchase agreement also assumes: • The seller employs less than 100 full-time employees, so no notification requirement under the Worker Adjustment and Retraining Notification Act is required; • There is no need for an escrow holdback (i.e., because the seller does not intend to distribute the purchase price to a disparate base of shareholders and can thus be tracked down served should an indemnity claim arise in the future); • The nature of the acquired assets is relatively straight-forward and does not necessitate detailed representations and warranties in any particularly unique area of law (e.g., intellectual property, data privacy and cybersecurity, environmental law, product manufacturing, etc.); • No transition services agreement, intellectual property assignment and license agreement, or employment agreements are necessary ancillary agreements; • A single buyer and seller are parties to the transaction, with no additional seller shareholders; and • No representations and warranties insurance will be obtained for the transaction. This short-form asset purchase agreement assumes that no antitrust issues are presented, although it addresses regulatory schemes that are generally applicable without regard to industry, such as tax, ERISA (defined herein), environmental, and anticorruption laws. The template assumes the seller is not the subsidiary of a parent group, and neither party is an S corporation. The template is generally pro-buyer. However, there is commentary throughout the template indicating variations on certain provisions that are more pro-seller. For a long-form asset purchase agreement, see Asset Purchase Agreement (Pro-Buyer) (DE) and Asset Purchase Agreement (Pro-Seller) (DE). For a pro-seller short form asset purchase agreement governed by Florida law, see Asset Purchase Agreement (Pro-Seller) (Short Form) (FL). For discussion of drafting considerations in asset purchase transactions, see Asset Purchase Agreement Basics, Asset Transaction Key Considerations Video, Asset Purchase Agreement Drafting Checklist, Asset Sales (FL Corporation), and Asset Acquisition Resource Kit. Market Standards enables users to search, compare, and analyze its comprehensive database of transactions using over 150 detailed data points to filter search results. You can customize any search to your needs by adding filters or modifying the search criteria. To compare selected state laws, see Corporation: Asset Sales and Corporation: Appraisal Rights in the Corporate and M&A State Law Comparison Tool.