The Asset Purchase Agreement: Topics Covered

As indicated in my last post (NWC, Part III), today (2/15/2019), I’ll begin a section by section analysis of an Asset Purchase Agreement ("APA") using a genericized composite of deal docs similar to ones I've used in past sell-side deals.  Specific APA sections and issues that I will cover over time include:

1. APA Recitals
2. Article/Section: ‘Definitions’
3. Article/Section: ‘Purchase and Sale of Acquired Assets; Assumption of Assumed Liabilities’
4. Article/Section: ‘Consideration; Purchase Price Adjustments; and Escrow Releases’
5. Key Issue: Earn-Out Payments and Retention Payments
6. Key Issue: Release of Escrow
7. Article/Section: ‘The Closing; Delayed Closing’
8. Article/Section: ‘Pre-Closing Covenants’
9. Key Issue: Conduct of Business, etc
10. Article/Section: ‘Representations and Warranties of Seller’
11. Key Issues: Reps and Warranties Insurance, Tax Matters, Financial Statements, Disclosure; Due Diligence
12. Article/Section: ‘Representations and Warranties of Buyer’
13. Article/Section: ‘Termination’
14. Article/Section: ‘Closing Conditions of Buyer’
15. Key Issues: No Material Adverse Change, Employment Agreements
16. Article/Section: ‘Closing Conditions of Seller’
17. Article/Section: ‘Indemnification; and Survival of Representations, Warranties, and Covenants’
18. Article/Section: ‘Continuing Covenants’
19. Article/Section: ‘Miscellaneous’
20. Additional Component: Schedules, Annexes, and Exhibits

As always, please let me know if there are specific issues that you would like to see covered related to the APA.  I’d be happy to modify or supplement the list if anyone would like to see additions.