Asset Purchase Agreement
(Pro-Seller) (Short Form) (CA)

Summary

This short-form asset purchase agreement is for use in the sale of a seller's assets for cash. A short-form agreement may be appropriate when less consideration is at issue and/or where the nature of the acquisition is relatively straightforward and the parties desire to simplify negotiation. This template includes practical guidance, drafting notes, and optional clauses. This template is drafted in a way such that seller will be selling 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 and initiating the sale of the real estate prior to the signing and closing. If such matters are not handled prior to the closing, then the buyer assumes the risks associated with transferring real estate after closing and closing over consents and approvals. This template is intended to be in accord with California law and assumes that both the buyer and seller are California corporations. Under California law, unless a corporation's charter states otherwise, approval of a sale of all or substantially all of a corporation's assets outside the "regular course of business" requires approval by both the board of directors of the seller and a majority of the shareholders of the seller entitled to vote on such sale. Cal. Corp. Code § 1001(a). This short-form asset purchase agreement assumes that the Corporation is selling substantially all of its assets, and that it is private and closely held, and as such, approval by the board of directors and by a majority of the shareholders has 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 and served should an indemnity claim arise in the future); • The nature of the acquired assets is relatively straightforward 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 or license agreement, or employment agreements are necessary; • 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 otherwise addresses regulatory schemes that are generally applicable without regard to industry such as tax, ERISA (defined herein) and environmental laws. This template assumes the seller is not the subsidiary of a parent group, and neither party is an S corporation. This template is generally pro-seller. However, there is commentary throughout the template indicating variations on certain provisions that are more pro-buyer. For a long-form asset purchase agreement, see Asset Purchase Agreement (Pro-Seller) (DE) and Asset Purchase Agreement (Pro-Buyer) (DE). For a pro-buyer short form asset purchase agreement governed by California law, see Asset Purchase Agreement (Pro-Buyer) (Short Form) (CA). For discussion of drafting considerations generally in asset purchase transactions, see Asset Purchase Agreement Basics, Asset Sales (CA Corporation), and Asset Acquisition Resource Kit.