ASSET PURCHASE AGREEMENT
For Dial Up Internet Provider Business
This ASSET PURCHASE AGREEMENT (the "Agreement") is entered into effective this ____day of _________________, ______ by and between __________________________, a ______________ corporation ("Buyer"), and _________________________________ a _____________ corporation ("Seller").
W I T N E S S E T H:
WHEREAS, Seller is in the business of providing dial-up internet access services and
related services to customers, both individuals and businesses, in the ___________________
market (the "Business"); and
WHEREAS, the parties hereto desire to enter into this Agreement for the purchase of
the Business and to establish the parties ongoing business relationship regarding other matters.
NOW, THEREFORE, for and in consideration of the mutual understandings, promises and
covenants contained herein, the parties hereto agree as follows:
1. TERMS OF PURCHASE AND SALE; CLOSING.
1.1 Purchase and Sale of Certain Assets of the Seller. Upon the basis of t[portion deleted - included in fully
licensed version]sentations and warranties and subject to the terms and conditions of this
Agreement, Buyer agrees to purchase and acquire from Seller, and Seller ag[portion deleted - included in fully
licensed version] transfer, assign, and deliver to Buyer, on the Closing Date (as defined in
Section 1.5 hereto) the Assets, free and clear of any pledge, lien, claim or other encumbrance
of any kind whatsoever, except for those obligations as described in Section 1.1(b) below, against receipt on the Closing Date of the Purchase Price specified in Section 1.4 hereof. The term "Assets" shall mean all of the assets of the Seller relating to the Business including but not limited to:
(a) All of Seller's rights, title and interest in and t[portion deleted - included in fully
licensed version]angible assets and property as set forth on Schedule 1.1(a) (the "Fixed Assets");
and
(b) All of Seller's rights, title and interest in Lease Ag[portion deleted - included in fully
licensed version] forth in Schedule 1.1(b), providing each named Lessor agrees to the assumption
by Buyer; and
(c) All of Seller's cash accounts, accounts receivable, bi[portion deleted - included in fully
licensed version]nd collections systems, deposits; and
(d) All of Seller's rights, title and interest in and to all of Seller's
customers as of the effective date of this agreement, customer lists, all goodwill associated
therewith (the "Customers"); and
(e) All of Seller's existing marketing and promotional materials.
1.2 Related Party Liabilities. Buyer shall not assume any liabilitie[portion deleted - included in fully
licensed version]y Seller, to ____________________ (related party of Seller).
1.3 Purchase Price. The purchase price (the "Purchase Price") for the A[portion deleted - included in fully
licensed version] be cash in the amount of $____________ and the issuance and delivery by Buyer
of its promissory note in the original principal amount of $_________________ (the "Not[portion deleted - included in fully
licensed version]ch Note to be substantially in the form attached hereto as Exhibit "A".
1.4 Instruments of Transfer and Conveyance.
(a) The sale, conveyance, transfer, assignment and
delivery of the Assets, as herein provided, shall be effected by delivery by Seller on the
Closing Date of such bills of sale, endorsements, assignments, certificates, drafts, checks
or other instruments of transfer and conveyance, as Buyer shall reasonably[portion deleted - included in fully
licensed version]est in Seller good and marketable title to the Assets. Except for those
obligations as described in Section 1.1(b) above, such instruments of transfer and conveyance
shall contain warranties as to marketable title and that such Assets are free and clear of all
pledges, liens, options, security interests, mortgages, c[portion deleted - included in fully
licensed version]other encumbrances
of any kind whatsoever.
(b) Seller agrees that it will from time to time after the Closing Date,
upon the request of Buyer, promptly do, execute, acknowledge and deliver, and will cause to be
done, executed, acknowledged and delivered, all such further instruments, certificates,
assignments, transfers, conveyances, powers of attorney, assurances and other documents, as
may be reasonably necessary or advisable to assure or confirm Buyer's free and clear title to
and interest in, or to enable Buyer to deal with and dispose of, any of the Assets.
1.5 Closing. The closing hereunder (the "Closing") shall be held at the offices
of the Buyer as of the effective date of this Agreement, or at such other time and place as the
parties may agree upon (the "Closing Date"). At the Closing:
(a) Seller will execute and deliver to Buyer the
following: a General Bill of Sale and Conveyance in the form acceptable to Buyer; and such
other instruments of transfer and conveyance as are required pursuant to Section 1.4 above;
and
(b) Buyer will execute and deliver to Seller the Note; and
(c) Each party will execute and deliver to the others such other
agreements, certificates, assignments, consents and other documents as are required or
specified in this Agreement or as may reasonably be requested by the other party to evidence
compliance with the terms hereof Simultaneously with the deliveries contemplated herein,
Seller will use its best efforts and take all such other action as may be reasonably necessary
to put Buyer in possession and control of the Assets.
2. REPRESENTATIONS AND WARRANTIES OF SELLER.
Seller represents and warrants to Buyer as follows:
2.1 Corporate Status. Seller is a corporation duly organized, validly [portion deleted - included in fully
licensed version]d in good standing under the laws of ________________ and has all necessary
corporate power and authority to carry on its business as now conducted and to [portion deleted - included in fully
licensed version] operate its properties, and to execute, deliver and perform its obligations
hereunder.
2.2 Authority for Agreement. This Agreement constitutes the valid and legally
binding obligation of Seller and the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized b[portion deleted - included in fully
licensed version]ry action on the part of the board of directors and shareholders of Seller,
will not conflict with or result in any violation of, or default under, any provisions of the
charter or bylaws of Seller and will not conflict with or result in any viol[portion deleted - included in fully
licensed version]lt with respect to, any mortgage, indenture, lease, agreement or other instrument
affecting the Assets, or to which Seller or its affiliates, is a party, o[portion deleted - included in fully
licensed version] or
its affiliates is bound.
2.3 Properties. Seller has good, valid and marketable ti[portion deleted - included in fully
licensed version] no liens, encumbrances, security interests or mort[portion deleted - included in fully
licensed version]tions as described in Section 1.1(b) above. The legal and beneficial interests
in the Assets are owned exclusively by Seller.
2.4 Brokers, Finders, etc. No broker, finder or other financial consultant has
acted on behalf of Seller or its affiliates in connection with the transactions contemplated
by this Agreement and all negotiations relative to this Agreement have b[portion deleted - included in fully
licensed version] without the intervention of any such third party.
3. REPRESENTATIONS AND WARRANTIES OF BUYER.
3.1 Corporate Status. Buyer is a corporation duly organiz[portion deleted - included in fully
licensed version] in good standing under the laws of the State of ________________. Buyer has full
power and authority to execute and deliver the Agreement on Buyer's behalf, and to perform its
obligations hereunder.
3.2 Authority for Agreement. Buyer has all necessary power and authority to
execute and deliver this Agreement and to carry out its[portion deleted - included in fully
licensed version]
obligations hereunder. The execution and delivery of this Agreement and the co[portion deleted - included in fully
licensed version]the transactions contemplated hereby have been duly authorized by the Board
of Directors of Buyer. No notice, consent, approval, order or authorization of, or
registration, declaration or filing with, any person or entities, [portion deleted - included in fully
licensed version]uthority is required in connection with the execution and delivery of
this Agreement or the consummation by Seller of the transactions contemplated hereby
or thereby.
3.3 Brokers, Finders, etc. No broker, finder or other fi[portion deleted - included in fully
licensed version]cted on behalf of Buyer or its affiliates in connection with the transactions
contemplated by this Agreement and all negotiations relative to this Agreement have been
carried on directly without the intervention of any such third party.
4. INDEMNIFICATION.
4.1 Indemnification.
(a) Seller covenants and agrees to indemnify and hold Buyer harmless
from and against any and all losses, liabilities, damages, demands, claims, suits, actions,
judgments or causes of action, assessments, costs and expenses, including,[portion deleted - included in fully
licensed version]interest, penalties, attorneys' fees, any and all expenses incurred in
investigating, preparing or defending against any litigation, commenced or threatened,
in writing or any other claim, and any and all amounts paid in settlement of any claim
asserted in writing or litigation, asserted against, resulting to, impose[portion deleted - included in fully
licensed version]suffered by Buyer, directly or indirectly, as a result of or arising from the
operation of the Business prior to the Closing Date and during the "Transitional Period"
("Transitional Period" is defined as the period between closing date and cessation of Seller's
duties assumed under paragraph 5.3), other than as otherwise contemplated herein.
(b) Buyer covenants and agrees to indemnify and hold[portion deleted - included in fully
licensed version]m and against any and all losses, liabilities, damages, demands, claims, suits,
actions, judgments or causes of action, assessments, costs and expenses, including, without
limitation, interest, penalties, attorneys' fees, any and all expenses inc[portion deleted - included in fully
licensed version]g, preparing or defending against any litigation, commenced or threatened, in
writing or any other claim, and any and all amounts paid in settlement of any claim asserted
in writing or litigation, asserted against, resulting to, imposed upon, or incurred or suffered
by Seller, directly or indirectly, as a result of or arising from the[portion deleted - included in fully
licensed version]s from and after the Closing Date, other than as otherwise contemplated herein.
5. POST CLOSING COVENANTS.
5.1 Covenant Not to Compete. In exchange for the representations and warranties
and fulfillment of the agreements contained herein by Buyer, Seller and each of its principals
severally agrees not to compete, either directly or indirectly, as an o[portion deleted - included in fully
licensed version]yee, partner, consultant or shareholder, for a peri[portion deleted - included in fully
licensed version]encing with the Closing Date in the Territory, in any internet access endeavor
which is in competition with the Business. For purposes of this Section 5.1, the term
"Territory" shall mean any area where Buyer has a local point-of-presence (defined as equipment
installed to cover a particular geographical area). Additionally, Seller agrees during the
one year period following the Closing Date to forward any and [portion deleted - included in fully
licensed version]the Territory to Buyer.
5.2 Utilities. Seller will transfer all utilities servicing th[portion deleted - included in fully
licensed version]ding telephones, water and power to Buyer on or prior to closing date.
5.3 Consulting Fees. Buyer agrees to pay Seller a fee in t[portion deleted - included in fully
licensed version]_________________ per month, payable on the first day of the[portion deleted - included in fully
licensed version]s consisting of continuation of billing, collection, and operating activities
during the Transitional Period. Seller or Buyer may cancel these consulting services with
seven days notice before the start of any month.
6. MISCELLANEOUS PROVISIONS.
[portion deleted - included in fully
licensed version]