Dolores

PURCHASE OF BUSINESS AGREEMENT

THIS PURCHASE OF BUSINESS AGREEMENT (the "Agreement") made and entered into this ____ ________________ ________ (the "Execution Date"),

BETWEEN:

________________________ of _____________________________
(the "Seller")

OF THE FIRST PART

and

_________________________ of _____________________________
(the "Purchaser")

OF THE SECOND PART

BACKGROUND

1. The Seller is a company which carries on the business of _________________________ at _____________________________.
2. The Seller owns and desires to sell certain assets of its business (the “Assets”) to the Purchaser, subject to any exclusions set out in this Agreement and the Purchaser desires to buy the Assets.

IN CONSIDERATION of the provisions contained in this Agreement and for other good and valuable consideration, the receipt and sufficiency of which consideration is acknowledged, the Parties agree as follows:

1. Definitions
   
1. The following definitions apply in the Agreement:
   1. The "Assets" consist of the following:
      1. all equipment used in carrying on the business of the Seller;
      2. all inventory and packaging;
      3. all interests of the Seller under contracts or agreements relating to the Seller;
      4. all books, records and files, relevant to carrying on the Seller;
      5. title to registered or unregistered trade marks and trade names; and
      6. the goodwill of the Seller including the business name.
   2. "Completion" means the completion of the purchase and sale of the Assets as described in this Agreement by the payment of agreed consideration, and the transfer of title to the Assets;
   3. "Excluded Assets" means assets that are owned by the Seller but do not form any part of the Assets for the purpose of this transaction. Excluded Assets will include the following:
      1. cash items held by the Seller including, but not limited to, cash bank balances, and term deposits; and
      2. accounts receivable and all other monies owed to the Seller due to operation of the Seller.
   4. "Parties" means both the Seller and the Purchaser and "Party" means any one of them; and
   5. "VAT" means value added tax payable under the Value Added Tax Act 1994 and all related provisions, amendments, orders and regulations.
2. Sale
   
2. Subject to the terms and conditions of this Agreement, and in reliance on the representations, warranties, and conditions set out in this Agreement, the Seller agrees to sell the Assets to the Purchaser and the Purchaser agrees to purchase the Assets from the Seller.
3. Purchase Price
   
3. The Parties agree that the Purchase Price for the Assets will be allocated among the Assets as follows subject to required adjustments that are agreed upon by the Parties:
   
   

   Business equipment		£_________
   Inventory and packaging		£_________
   Outstanding business contracts		£_________
   Books, records and files		£_________
   Trade marks and trade names		£_________
   Goodwill		£_________
   	Purchase Price	£__________

   
   

4. The Parties agree to co-operate in making joint elections under any applicable tax legislation for submission to HM Revenue & Customs in order to give the required or desired effect to the allocation of the Purchase Price.
5. The Seller and the Purchaser agree that the purchase and sale of the Seller is a transfer of the Seller as a going concern and should therefore not be considered as a supply of goods and services for the purposes of VAT according to Value Added Tax (Special Provisions) Order 1995 ("Article 5"). Both the Seller and the Purchaser will make all reasonable efforts to ensure that this Agreement conforms to this or any other VAT exemption to ensure that no amount of tax will be owing under VAT.
6. Should HM Revenue and Customs determine that VAT is chargeable on the sale of the Assets, the Purchaser will pay to the Seller, within ten days of receiving written notice, the amount of VAT which HM Revenue and Customs determined was owing in exchange for a valid VAT invoice.
7. Completion
   
7. The Completion of the purchase and sale of the Assets will take place on ____ ________________ ________ (the "Completion Date") at the offices of the Seller or at such other time and place as the Parties mutually agree.
8. At Completion and upon the Purchaser paying the Purchase Price in full to the Seller, the Seller will deliver the Assets to the Purchaser. The Seller will deliver to the Purchaser possession of the Assets, in the same condition as on the Execution Date, and free and clear of any liens, charges, rights of third parties, or any other encumbrances, except those attached as a result of the Purchaser's actions.
9. At Completion and upon the Purchaser paying the Purchase Price in full to the Seller, the Seller will provide the Purchaser with duly executed forms and documents evidencing transfer of the Assets, where required including, but not limited to, bills of sale, assignments, assurances, and consents. The Seller will also co-operate with the Purchaser as needed in order to effect the required registration, recording, and filing with public authorities of the transfer of ownership of the Assets to the Purchaser.
10. Payment
    
10. The Purchase Price for the Assets will be paid by the Purchaser in one lump sum payment to the Seller in the form of a Banker's Draft or an electronic money or funds transfer. In the case of an electronic money or funds transfer, the Seller will give notice to the Purchaser of the bank account particulars at least 5 business days prior to the Completion Date.
11. The Purchaser is responsible for paying all applicable taxes, including VAT, duties, and any other taxes or charges payable pursuant to the transfer of the Assets from the Seller to the Purchaser.
12. Seller's Representations and Warranties
    
12. The Seller warrants to the Purchaser that:
    1. the Seller has full legal authority to enter into and exercise its obligations under this Agreement;
    2. the Seller is a company duly incorporated or continued, validly existing, and in good standing and has all requisite authority to carry on business as currently conducted;
    3. the corporate Seller, ________________________ has all necessary corporate power, authority and capacity to enter into this Agreement and to carry out its obligations. The execution and delivery of this Agreement, and this transaction has been duly authorised by all necessary corporate action on the part of the Seller;
    4. the Seller is the absolute beneficial owner of the Assets, with good and marketable title, free and clear of any liens, charges, encumbrances or rights of others. The Seller is exclusively entitled to possess and dispose of the Assets;
    5. to the best knowledge of the the officers of the Seller there is no pending or anticipated claim against the Assets or against the Seller's ownership or title in the Assets or against the Seller's right to dispose of the Assets;
    6. no third party contract is outstanding that could result in a claim against or affecting the Assets in whole or in part either now or in the future;
    7. the Seller does not have any outstanding contracts, agreements, or commitments of any kind, written or oral, with any third party regarding the Assets, except for any material contracts described in, and/or attached to this Agreement. The Seller warrants that no material default or breach exists with regard to any presently outstanding material contract;
    8. execution of this Agreement will not hinder or unfairly disadvantage any pre-existing creditor;
    9. except as otherwise provided in this Agreement, there has been no act or omission by the Seller that would give rise to any valid claim relating to a brokerage commission, finder's fee or other similar payment;
    10. the Seller has withheld all amounts required to be withheld under income tax legislation and has paid all amounts owing to the proper authorities;
    11. other than any requirement to make National Insurance contributions, the Seller is not bound by any written or oral pension plan or collective bargaining agreement or obligated to make any contributions under any retirement income plan, deferred profit sharing plan or similar plan;
    12. the Seller will not dismiss any current employees or hire any new employees, or substantially change the role or title of any existing employees, provide unscheduled or irregular increases in salary or benefits to employees, or institute any significant changes to the terms of any employee's employment, after signing this Agreement, unless the Purchaser provides written consent;
    13. there are no claims threatened or pending against the Seller by any current or past employee relating to any matter arising from or relating to the employment of the employee;
    14. the Seller has informed and consulted with the appropriate representatives of any affected employees as required by the Transfer of Undertakings (Protection of Employment) Regulations with respect to the specific transfer of business as described by this Agreement;
    15. the Assets, while owned by the Seller, have been maintained at all times in accordance with standard industry practice. The Seller further warrants that all tangible assets are in good working order;
    16. the Seller is operating in accordance with all applicable laws, rules, and regulations of the jurisdictions in which it is carried on. In compliance with such laws, the Seller has duly licensed, registered, or qualified the Seller with the appropriate authorities and agencies;
    17. the Seller maintains insurance policies on the Assets and such policies are in full force and effect and of an adequate value as would be reasonable in its industry. The Seller has neither defaulted under these insurance policies, whether as a result of failure to pay premiums or due to any other cause, nor has the Seller failed to give notice or make a claim under these insurance policies in a timely manner;
    18. the trade marks and trade names used in carrying on the business of the Seller are owned exclusively and validly by the Seller. The trade marks and trade names are duly registered with the appropriate public authorities in order that the rights associated with the trade marks and trade names are protected. To the best knowledge of the officers of the Seller, there are no claims of infringement existing against the patents, trademarks, copyrights or any other trade names used by the Seller;
    19. any trade marks and trade names used in whole or in part in or required for the proper operation of the business of the Seller are validly and beneficially owned by and for the sole and exclusive use of the Seller;
    20. to the best knowledge of the officers of the Seller, the conduct of the Seller does not infringe on the patents, trade marks, trade names or copyrights, whether domestic or foreign, of any other person, firm or company;
    21. the Seller owns or is licensed to use all necessary software and it can continue to use any and all computerised records, files and programs after the Completion Date in the same manner as before the Completion Date;
    22. the Seller has submitted all tax reports and returns required in the operation of its business and has paid all taxes owed to all taxing authorities, including foreign taxing authorities, except amounts that are being properly contested by the Seller, the details of this contest having been provided to the Purchaser; and
    23. this Agreement has been duly executed and delivered by the Seller and constitutes a legal and binding obligation of the Seller, enforceable in accordance with its terms, except as enforcement may be limited by bankruptcy and insolvency, by other laws affecting the rights of creditors generally, and by equitable remedies granted by a court of competent jurisdiction.
13. The warranties given in this Agreement are the only warranties. No other representation or warranty, either expressed or implied, has been given by the Seller to the Purchaser, including, without limitation, any representations or warranties regarding the merchantability of the Assets or their fitness for a particular purpose.
14. The Seller warrants to the Purchaser that each of the warranties made by it is accurate and not misleading at the Completion Date. The Seller acknowledges that the Purchaser is entering into this Agreement in reliance on each warranty.
15. The Seller's warranties will survive the Completion Date of this Agreement.
16. Where the Purchaser has a claim against the Seller relating to one or more warranties made by the Seller, the Seller will have no liability to the Purchaser unless the Purchaser provides notice in writing to the Seller containing full details of the claim on or before the third anniversary of the Completion Date.
17. Where the Purchaser has a claim against the Seller relating to one or more warranties made by the Seller, and the Purchaser is entitled to recover damages from a third party then the amount of the claim against the Seller will be reduced by the recovered or recoverable amount less all reasonable costs incurred by the Purchaser in recovering the amount from the third party.
18. Purchaser's Representations and Warranties
    
18. The Purchaser warrants to the Seller the following:
    1. the Purchaser has full legal authority to enter into and exercise its obligations under this Agreement;
    2. the corporate Purchaser has all necessary corporate power, authority and capacity to enter into this Agreement and to carry out its obligations under this Agreement. The execution and delivery of this Agreement, and this transaction has been duly authorised by all necessary corporate action on the part of the corporate Purchaser;
    3. the Purchaser has funds available to pay the full Purchase Price and any expenses accumulated by the Purchaser in connection with this Agreement and the Purchaser has not incurred any obligation, commitment, restriction, or liability of any kind, absolute or contingent, present or future, which would adversely affect its ability to perform its obligations under this Agreement;
    4. the Purchaser has not committed any act or omission that would give rise to any valid claim relating to a brokerage commission, finder's fee, or other similar payment;
    5. this Agreement has been duly executed by the Purchaser and constitutes a legal and binding obligation of the Purchaser, enforceable in accordance with its terms, except as enforcement may be limited by bankruptcy and insolvency, by other laws affecting the rights of creditors generally, and by equitable remedies granted by a court of competent jurisdiction;
    6. the Purchaser has no knowledge that any warranty given by the Seller in this Agreement is inaccurate or false; and
    7. the Purchaser is or will become a registered taxable person for the purposes of VAT and after the Completion Date the Purchaser will continue the Seller for the same purpose and in the same manner as before the Completion Date.
19. The warranties given in this Agreement are the only warranties. The Purchaser has given no other warranty, either expressed or implied, to the Seller.
20. The Purchaser warrants to the Seller that each of the warranties made by it is accurate and not misleading at the date of Completion. The Purchaser acknowledges that the Seller is entering into this Agreement in reliance on each warranty.
21. The Purchaser's warranties will survive the Completion Date of this Agreement.
22. Where the Seller has a claim against the Purchaser relating to one or more warranties made by the Purchaser, the Purchaser will have no liability to the Seller unless the Seller provides notice in writing to the Purchaser containing full details of the claim on or before the third anniversary of the Completion Date.
23. Where the Seller has a claim against the Purchaser relating to one or more warranties made by the Purchaser, and the Seller is entitled to recover damages from a third party then the amount of the claim against the Purchaser will be reduced by the recovered or recoverable amount less all reasonable costs incurred by the Seller in recovering the amount from the third party.
24. Conditions Precedent to be Performed by the Purchaser
    
24. The obligation of the Seller to complete the sale of the Assets under this Agreement is subject to the satisfaction of the following conditions precedent by the Purchaser, on or before the Completion Date, each of which is acknowledged to be for the exclusive benefit of the Seller and may be waived by the Seller entirely or in part:
    1. all of the warranties made by the Purchaser in this Agreement will be true and accurate in all material respects on the Completion Date;
    2. the Purchaser will obtain or complete all forms, documents, consents, approvals, registrations, declarations, orders, and authorisations from any person or any governmental or public body, required of the Purchaser in connection with the execution of this Agreement; and
    3. the Purchaser will provide to the Seller a certificate from an officer of the Purchaser confirming to the best of their knowledge, information and belief (after due inquiry), the truth and correctness in all aspects of those warranties given by the Purchaser in this Agreement.
25. Conditions Precedent to be Performed by the Seller
    
25. The obligation of the Purchaser to complete the purchase of the Assets under this Agreement is subject to the satisfaction of the following conditions precedent by the Seller, on or before the Completion Date, each of which is acknowledged to be for the exclusive benefit of the Purchaser and may be waived by the Purchaser entirely or in part:
    1. all of the warranties made by the Seller in this Agreement will be true and accurate in all material respects on the Completion Date;
    2. the Seller will obtain and complete any and all forms, documents, consents, approvals, registrations, declarations, orders, and authorisations from any person or governmental or public body that are required of the Seller for the proper execution of this Agreement and transfer of the Assets to the Purchaser;
    3. no substantial damage to or alteration of the Assets that would adversely affect their value will occur between the date this Agreement is signed and the Completion Date;
    4. the Seller will have obtained any necessary consents for assigning any leases to the Purchaser as well as providing certificates from such owners or landlords that there are no arrears of rent, no breaches under such leases and the amount of the security deposits held by such third parties;
    5. the Seller will execute and deliver bills of sale for the Assets in favor of the Purchaser;
    6. the Seller will provide the Purchaser with complete information concerning the operation of the Seller, in order to put the Purchaser in a position to carry on in the place of the Seller;
    7. immediately following the Completion, the Seller will discontinue use of the name ________________________ except in connection with the collection of the accounts receivable of the Seller and the disposing of any inventory that were not part of the Assets sold to the Purchaser; and
    8. the Seller will provide to the Purchaser: (a) a certificate from an officer of the Seller confirming to the best of their knowledge, information and belief (after due inquiry), the truth and correctness in all aspects of those warranties given by the Seller in this Agreement; and/or (b) a disclosure letter detailing any exceptions, qualifications or changes to the subject matter of the warranties given by the Seller in this Agreement.
26. Conditions Precedent Not Satisfied
    
26. If either Party fails to satisfy any of its conditions precedent as set out in this Agreement on or before the Completion Date and that condition precedent was not waived, then this Agreement will be null and void and there will be no further liability as between the Parties.
27. Disclosure
    
27. Upon the reasonable request of the Purchaser, the Seller will, from time to time, allow the Purchaser and its agents, advisors, accountants, employees, or other representatives to have reasonable access to the premises of the Seller and to all of the books, records, documents, and accounts of the Seller, during normal business hours, between the date of this Agreement and the Completion Date, in order for the Purchaser to confirm the representations and warranties given by the Seller in this Agreement.
28. Employees
    
28. The Transfer of Undertakings (Protection of Employment) "TUPE" Regulations will apply to this Agreement so that the contracts of employment for all employees will have effect as from the Completion Date as if the contracts of employment had been made between the Purchaser and the employees.
29. The Seller has maintained complete and accurate records of employment for each of its employees in accordance with its statutory and regulatory requirements including, but not limited to, periods of employment, all payments including salary, sick pay and maternity pay, income tax and national insurance contributions, and any documentation relating to disciplinary issues, health and safety issues and termination of employment.
30. The Seller will indemnify the Purchaser against any claim originating or relating to the employment of any of the employees during the period of employment up to and including the Completion Date including claims related to any failure on the part of the Seller to comply with the duties and obligations of the Transfer of Undertakings (Protection of Employment) Regulations.
31. The Purchaser will indemnify the Seller against any claim originating or relating to the employment of any of the employees for the period of employment starting the day after the Completion Date including claims related to any failure on the part of the Purchaser to comply with the duties and obligations of the Transfer of Undertakings (Protection of Employment) Regulations.
32. The Seller will be solely responsible for the following costs incurred or owed up to and including the Completion Date: any employee remuneration (including all salaries, benefits, bonuses, share bonuses and share options), statutory and regulatory contributions or other remuneration owed to employees. The Seller will be responsible for paying out all holidays, sick days, personal days and other compensated time off accrued by all employees up to and including the Completion Date.
33. The Purchaser will be solely responsible for the following costs incurred or owed after the Completion Date: any employee remuneration (including all salaries, benefits, bonuses, share bonuses and share options), statutory and regulatory contributions or other remuneration owed to employees.
34. To the best of the Seller's knowledge, information and belief no labour dispute or litigation is currently in progress, pending or threatened involving the employees of the Seller that would interfere with the normal productivity or operation of the Seller.
35. VAT
    
35. The Purchaser will have no liability and does not assume any duties or responsibilities for any claims or liability relating to unpaid VAT owing on any sales or services provided through the Seller for the period up to and including the Completion Date. The Seller will indemnify the Purchaser against any such claims or liability.
36. Rights of Third Parties
    
36. A person who is not a party to this Agreement will have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the terms of this Agreement.
37. Non-Competition
    
37. For a period of 1 year (the "Non-Competition Period") after the Completion Date, the Seller will not, either individually or in conjunction with any other person or business entity or in any other manner whatsoever, have interest in, enter employment with, lend money to, advise or permit its name to be associated with any business similar to or in competition with the Purchaser within the following geographic region: United Kingdom.
38. If the Non-Competition Period is determined to be void or unenforceable by a court of competent jurisdiction then it is the intent of the Parties that the Non-Competition Period be reduced in scope only to the extent deemed necessary to render the provision reasonable and enforceable. The Seller agrees that the Non-Competition Period is reasonable and all defences to the enforcement of the Non-Competition Period are waived by the Seller.
39. Non-Assumption of Liabilities
    
39. It is understood and agreed between the Parties that the Purchaser is not assuming and will not be liable for any of the liabilities, debts or obligations of the Seller arising out of the ownership or operation of the Seller prior to and including the Completion Date.
40. The Seller will indemnify and save harmless the Purchaser, its officers, directors, employees, agents, and shareholders from and against all costs, expenses, losses, claims, and liabilities, including reasonable legal fees and disbursements, or demands for income, sales, excise or other taxes, suffered or incurred by the Purchaser or any of the above mentioned persons arising out of the ownership or operation of the Seller prior to and including the Completion Date.
41. Transfer of Third Party Contracts
    
41. This Agreement is not to be construed as an assignment of any third party contract from the Seller to the Purchaser if the assignment would be a breach of that third party contract.
42. The Purchaser will be solely responsible for acquiring new contracts with third parties where the existing contracts are not legally assignable from the Seller to the Purchaser.
43. Notwithstanding any other provision in this Agreement to the contrary, the Seller will not be liable for any losses, costs or damages of any kind including loss of revenue or decrease in value of the Seller resulting from the failure of the Purchaser to acquire any third party contracts.
44. Notices
    
44. Any notices or deliveries required in the performance of this Agreement will be deemed completed when hand-delivered, delivered by agent, or seven (7) days after being placed in the post, postage prepaid, to the Parties at the addresses contained in this Agreement or as the Parties may later designate in writing.
45. Expenses/Costs
    
45. The Parties agree to pay all their own costs and expenses in connection with this Agreement.
46. Severability
    
46. The Parties acknowledge that this Agreement is reasonable, valid, and enforceable; however, if any part of this Agreement is held by a court of competent jurisdiction to be invalid, it is the intent of the Parties that such provision be reduced in scope only to the extent deemed necessary to render the provision reasonable and enforceable and the remainder of the provisions of this Agreement will in no way be affected or invalidated as a result.
47. Where any provision in this Agreement is found to be unenforceable, the Purchaser and the Seller will then make reasonable efforts to replace the invalid or unenforceable provision with a valid and enforceable substitute provision, the effect of which is as close as possible to the intended effect of the original invalid or unenforceable provision.
48. Governing Law
    
48. This Agreement will be governed by and construed in accordance with the laws of England.
49. The courts of England will have jurisdiction to decide and settle any dispute or claim arising out of or in connection with this Agreement.
50. General Provisions
    
50. This Agreement contains all terms and conditions agreed to by the Parties. Statements or representations which may have been made by any Party to this Agreement in the negotiation stages of this Agreement may in some way be inconsistent with this final written Agreement. All such statements are declared to be of no value to either Party. Only the written terms of this Agreement will bind the Parties.
51. This Agreement may only be amended or modified by a written instrument executed by all of the Parties.
52. A waiver by one Party of any right or benefit provided in this Agreement does not infer or permit a further waiver of that right or benefit, nor does it infer or permit a waiver of any other right or benefit provided in this Agreement.
53. This Agreement will not be assigned either in whole or in part by any Party without the written consent of the other Party.
54. This Agreement will pass to the benefit of and be binding upon the Parties' respective heirs, executors, administrators, successors, and permitted assigns.
55. The clauses, paragraphs, and subparagraphs contained in this Agreement are intended to be read and construed independently of each other. If any part of this Agreement is held to be invalid, this invalidity will not affect the operation of any other part of this Agreement.
56. All of the rights, remedies and benefits provided in this Agreement will be cumulative and will not be exclusive of any other such rights, remedies and benefits allowed by law or equity.
57. Time is of the essence in this Agreement.
58. This Agreement may be executed in counterpart.
59. Headings are inserted for the convenience of the Parties only and are not to be considered when interpreting this Agreement. Words in the singular mean and include the plural and vice versa. Words in the masculine gender include the feminine gender and vice versa. Words in the neuter gender include the masculine gender and the feminine gender and vice versa.