ASSET PURCHASE AGREEMENTS: Closing Considerations in North Carolina

Depending upon the type of Business Assets involved, the following are just a few of the documents that a potential Buyer and Seller may want to include in an Asset Purchase Agreement at Closing:

  • The Parties will need a Bill of Sale and Assignment of Property.
  • The Buyer should determine if it needs to form a new Business Entity with which to buy the Seller’s assets.
  • The Buyer should consider whether it wants or need a Noncompetion Agreement with the Seller and/or the Seller’s Shareholders/Members, and/or Key Employees.
  • If Intellectual Property is involved, the parties will need an Assignment of Trademarks, Patents, and/or Copyrights, as applicable.
  • If the Seller’s website domain, email addresses, and/or telephone numbers are involved, the parties will need an Assignment Agreement to cover these items.
  • The parties will need an Assignment of Contracts, Leases, and/or Liabilities as applicable.
  • If the Buyer wants the Seller’s owners and/or Key Employees to assist Buyer with Buyer’s new business for a period of time after Closing, the Buyer will need an Employment/Consulting Agreement with these parties.
  • If the Buyer is not paying cash at Closing, the Seller will at a minimum want a Promissory Note signed by the Buyer, and a Seller should consider whether additional security is needed in the form of a Personal Guarantee Agreement signed by the Buyer’s individual Owners, a Security Agreement on transferred personal property, or a Deed of Trust on transferred Real Property.
  • The Buyer will want appropriate Approvals by the Seller’s Stockholders/Members and Board or Directors/Members.
  • The Seller will want appropriate Approvals by the Buyer’s Stockholders/Members and Board of Directors/Members.

If you are planning to Purchase the Assets of an existing business, the foregoing documents are just a few that a potential Buyer and Seller may want to include in an Asset Purchase Agreement.  If you need help or advice, call an experienced Business Attorney. Call Wesley Scott Jones now at 910-256-5800 for a free telephone consultation.

Wesley Jones is a Business Lawyer serving in Wilmington, North Carolina serving all of Southeastern North Carolina including New Hanover County (e.g. Wilmington, Kure Beach, Wrightsville Beach, Carolina Beach and the areas of Ogden, Masonboro, Myrtle Grove, Landfall, and Mayfair), all of Pender County (e.g. Burgaw, Surf City, Hampstead and Topsail Beach) and all of Brunswick County (e.g. Bald Head Island, Bolivia, Calabash, Leland, Shallotte, Southport, Saint James, Ocean Isle, and Oak Island).

The following are just a few of the Business Services that Wesley Scott Jones provides to clients:   Annual Meeting Minutes, Annual Reports, Assignments, Board of Director’s Meeting Minutes, Business Entity Startup and Formation, Buying or Selling a Business, and Business Dissolution and Liquidation, Bylaws, Contract Review and Drafting (including Non-Compete or Noncompetition Agreements, Confidentiality Agreements, and Nondisclosure Agreements), Due Diligence Research, Drafting Shareholder and Operating Agreements, Drafting Shareholders and Directors Meeting Minutes,  Leases, Licensing, Limited Liability Company Formation, LLCs, Meeting Minutes, Non-Profit Corporations, Non-Solicitation Agreements, Organizational Minutes, Partnership Formation, Professional Malpractice, Promissory Notes, Regulations,  Shareholder Agreements, Shareholder’s Meeting Minutes, and Starting and Operating a Franchisee Business.

ASSET PURCHASE AGREEMENTS: Pre-Closing Considerations in North Carolina

Depending upon the type of business assets that you want to purchase, the following are just a few of the things that a potential Buyer should consider:

  • Do you need a Nondisclosure Agreement with the Seller?
  • Is there an existing Broker/Finder Agreement that affects the transaction?
  • Have you determined all of the Related Parties on which due diligence should be performed (Seller, Stockholders/Members, Subsidiaries, or other Affiliated Entities)?
  • What is the Lien Status of the property to be conveyed?
  • Can the Seller produce a Certificate of Good Standing from the Secretary of State?
  • Are there any Third Party Consents required by Contracts with third parties that are to be assigned by Seller and assumed by Buyer?
  • Have you reviewed the Seller’s Financial Information?

If you are planning to Purchase the Assets of an existing business, these are just a few of the considerations that must be thought through and preferably verified prior to Closing on an Asset Purchase transaction in North Carolina. If you need help, call an experienced Business Attorney for advice and help. Call Wesley Jones now at 910-256-5800 for a free telephone consultation.

Wesley Jones is a Business Lawyer serving in Wilmington, North Carolina serving all of Southeastern North Carolina including New Hanover County (e.g. Wilmington, Kure Beach, Wrightsville Beach, Carolina Beach and the areas of Ogden, Masonboro, Myrtle Grove, Landfall, and Mayfair), all of Pender County (e.g. Burgaw, Surf City, Hampstead and Topsail Beach) and all of Brunswick County (e.g. Bald Head Island, Bolivia, Calabash, Leland, Shallotte, Southport, Saint James, Ocean Isle, and Oak Island).

ASSET PURCHASE AGREEMENTS IN NORTH CAROLINA

A well drafted Asset Purchase Agreement should address the following topics:

  • Both parties must clearly define which Business Assets are being sold/purchased (the Purchased Assets) and which Business Assets are not being sold/purchased (the Excluded Assets).

Asset Purchase Agreement

  • Both parties must clearly define what liabilities, if any, are being assumed by the Buyer (the Assumed Liabilities) and which liabilities will remain with the Seller (the Excluded Liabilities).
  • The Purchase Price, how it will be paid, whether a deposit will be required, if required, what kind a Security Agreement will be required by the Seller, and the date, time and place of Closing.
  • How the Purchase Price will be allocated among the Purchased Assets.
  • Representations and Warranties from the Seller that:  The Seller has the requisite power and authority to execute the Asset Purchase Agreement and to carry out the acts contemplated thereby; and The Seller has good and marketable title to all of the Purchased Asset, free and clear of any liens.
  • Representations and Warranties from the Buyer that:  The Buyer has the requisite power and authority to execute the Asset Purchase Agreement and to carry out the acts contemplated thereby.
  • The Agreement should list all the Conditions Precedent that must occur prior to Closing.
  • Optional Provisions may include an Indemnification clause, a Risk of Loss clause, a No Broker clause, a Best Efforts clause, a Non-Competition Agreement, and a Governing law and Venue clause.

If you are planning to sell the assets of your business and to purchase the assets of another business, call an experienced lawyer to help you through the process.  Call Wesley Jones now at 910-256-5800 for a free telephone consultation.

Wesley Jones is a Business Law Attorney serving all of Southeastern North Carolina including New Hanover County (e.g. Wilmington, Kure Beach, Wrightsville Beach, Landfall, and Mayfair), all of Pender County (e.g. Burgaw and Topsail Beach, etc.) and all of Brunswick County (e.g. Bolivia, Southport, Ocean Isle, and Oak Island).