In an asset sale, only the tangible or intangible assets of the business are transferred to the new owner. The legal ownership of the actual business entity is not transferred. Asset purchase agreements are needed even in the event that only some of a business’ assets are being sold.  A buyer may purchase the majority of the seller’s assets such as equipment, fixtures, leaseholds, trade names, accounts receivable, and client lists, for example. The seller may retain ownership of the actual business entity as well as the long-term obligations of the company. If you desire to sell assets in order to keep your company doors open, it’s often practical to sell fixed assets if they have no further value to the company. For example, a manufacturer may sell a piece of product equipment that is no longer needed for production. The equipment’s value to the company has decreased, but it has value as a sale item.

Asset sales tend to generate higher taxes for the seller as intangible assets are taxed at capital gains rates. “Hard” assets can be subject to higher ordinary income taxes.  Conversely, a buyer tends to favor an asset sale. They are able to allocate values for assets based on their depreciation so they can gain additional tax benefits.

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Although asset sales allow the buyer to bypass liabilities, certain assets can be difficult to transfer. These assets can include: intellectual property, government or corporate contracts, some leases, and permits. This is due to issues of legal ownership, assignability, and third-party consents. An asset sale might not necessarily include the name of the business, which can mean that the seller’s name-brand value would not be obtained by the buyer. It is important to have expert guidance in these scenarios and for the seller and buyer to decide precisely the type of assets they are seeking to sell or acquire.

It’s common for an asset purchase agreement to be signed without the sale being closed. The closing actually occurs after due diligence has been completed. In this scenario, the asset purchase agreement would include provisions regarding the seller’s operation of the business prior to closing on the sale.

What to Include in an Asset Purchase Agreement

Asset purchase agreements often vary in complexity, based on the situation and the specific assets involved. The Legal Information Institute (LII) provides the following list of sections that are included in a typical asset purchase agreement:

• Recitals that describe the relevant background of the transaction.
• A list of definitions of the terms used in the asset purchase agreement.
• The terms and conditions for the sale and purchase of the assets, including the purchase price and the terms and conditions for its payment.
• The terms and conditions for the closing of the transaction, if any.
• The representations and warranties of the seller and the buyer regarding, among others, their authority to enter the asset purchase agreement, the legal characteristics of the sold assets, and any other relevant matter related to the transaction and the assets.
• Post-closing obligations of the parties, such as a non-compete clause.
• Indemnification rules in case something goes wrong, including limiting indemnification and preventing double compensation or third-party claims.
• Rules for terminating the asset purchase agreement.
• Other miscellaneous clauses, such as applicable law and jurisdiction or arbitration clauses.

If you are pursuing an asset sale, it’s important that due diligence is completed. A Raich Law attorney experienced in corporate sales and asset sale transactions can review your needs and identify the best approach to divesting yourself of assets. We can also advise you regarding the legal ramifications of each type of asset sale. If you are purchasing assets from a corporation, your Raich Law attorney will be able to offer guidance on the many terms and conditions that may be involved in an asset purchase agreement. This helps ensure that your business will not enter into any potentially detrimental agreements. We will negotiate for the most profitable transfer while taking measures to protect you from any liability that could possibly be inherited in the sale.

For more information on asset purchase agreements and our other legal services like hedge fund attorneys, finance lawyers, and franchise lawyers, please contact Raich Law PLLC, your trusted Las Vegas Lawyers at 702-758-4240 or click here to contact us.