Asset Sale and Purchase Agreement - Template Form Pro · NG-law

ASSET SALE AND PURCHASE AGREEMENT

THIS AGREEMENT is made this ________ (the "Effective Date").

BETWEEN

________, a private company limited by shares duly incorporated under the Companies and Allied Matters Act 2020 with Registration Number ________ and having its registered office at:

________

hereinafter referred to as the "Vendor" (which expression shall, where the context so admits, include its successors-in-title and permitted assigns) of the first part;

AND

________, a company duly incorporated under the Companies and Allied Matters Act 2020 with Registration Number ________ and having its registered office at:

________

hereinafter referred to as the "Purchaser" (which expression shall, where the context so admits, include its successors-in-title and permitted assigns) of the second part;

The Vendor and the Purchaser may be individually referred to as a "Party" and collectively as the "Parties".

WHEREAS:

A. The Vendor is a company duly incorporated under the laws of the Federal Republic of Nigeria and is engaged in the business of:

________

B. The Vendor is desirous of divesting its entire interest in the Asset particularly described in the Schedules attached to this Agreement to the Purchaser.

C. The Purchaser wishes to purchase and acquire the entire Asset offered for sale by the Vendor upon the terms and subject to the conditions set out in this Agreement.

NOW, THEREFORE, in consideration of the Purchase Price, the promises and mutual covenants hereinafter contained, and other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows:

§ 1. DEFINITIONS

1.1 "Agreement" means this Asset Sale and Purchase Agreement together with its Schedules and any amendments hereto.

1.2 "Articles" means the Vendor's articles of association.

1.3 "Authorisation" means any consent, registration, filing, agreement, certificate, licence, approval, permit, authority or exemption from, by or with any authority, and all corporate approvals or consents.

1.4 "Business" means the business carried on by the Vendor as specified in the recitals and the Vendor's Articles.

1.5 "Business Day" means a day (other than a Saturday, Sunday or public holiday declared by the Federal Government of Nigeria) on which banks are open for general business in Nigeria.

1.6 "CAMA" means the Companies and Allied Matters Act 2020 and any subsidiary legislation, re-enactment or modification thereof.

1.7 "Completion" means the completion of the sale and purchase of the Asset in accordance with the terms and conditions of this Agreement.

1.8 "Completion Date" means the date on which all requirements for Completion have been fulfilled, being ________.

1.9 "Disclosing Party" means the Party who shares Confidential Information or Trade Secret Information with the Receiving Party under this Agreement.

1.10 "Encumbrance" means any mortgage, charge, pledge, lien, security interest, option or other third party right or interest in respect of the Asset.

1.11 "Information Memorandum" means the document containing the particulars of the Vendor and the proposed sale of the Asset.

1.12 "Material Adverse Change" means any change that may adversely affect: (a) the ability of the Vendor to perform its obligations under this Agreement; or (b) the validity and enforceability of this Agreement.

1.13 "Purchase Price" means the total sum to be paid by the Purchaser in exchange for the Asset as set out in § 5.

1.14 "Receiving Party" means the Party that receives Confidential Information or Trade Secret Information from the Disclosing Party.

1.15 "Transaction" means the sale of the Asset from the Vendor to the Purchaser pursuant to this Agreement.

1.16 "VAT" means value added tax chargeable under the Value Added Tax Act, Cap V1, Laws of the Federation of Nigeria 2004 (as amended).

§ 2. INTERPRETATION

In this Agreement, unless the context otherwise requires:

2.1 the headings of each clause are for convenience only and shall not affect the construction or interpretation of this Agreement;

2.2 words denoting the singular shall include the plural and vice versa;

2.3 words denoting any gender shall include all genders;

2.4 the words "including" and "includes" mean "including, without limitation";

2.5 references to any statute or statutory provision include a reference to that statute or provision as from time to time amended, extended or re-enacted;

2.6 the recitals and Schedules form part of this Agreement and references to this Agreement include the recitals and the Schedules hereto.

§ 3. SALE OF ASSET

3.1 In pursuance of this Agreement, the Vendor agrees to sell, assign and convey free from all Encumbrances, and the Purchaser agrees to purchase and acquire, the following asset upon the terms and subject to the conditions of this Agreement (the "Asset"):

________

3.2 The Vendor warrants that it possesses good and valid title to the Asset and has all requisite corporate authorisation to sell the Asset.

§ 4. TITLE TO THE ASSET

4.1 The Vendor warrants and represents that it has full title and right to sell the Asset to the Purchaser.

4.2 It is hereby agreed that title to and risk in the Asset shall remain with the Vendor until the full Purchase Price has been paid, and on the Completion Date the Vendor shall transfer all rights, interest and benefits, including the benefit of any warranties attached to the Asset, to the Purchaser.

§ 5. PURCHASE PRICE

5.1 The price for the sale of the Asset shall be ₦________ (________) exclusive of all applicable taxes.

5.2 The Parties agree and acknowledge that the Purchaser may be required to pay taxes such as VAT and/or other applicable taxes, in which case the Purchaser agrees to pay all such applicable taxes in addition to the Purchase Price.

5.3 The Purchase Price shall be payable in cash to the Vendor's nominated bank account as follows: ________.

5.4 If the Purchase Price or any part thereof remains unpaid on the due date or any extension agreed by the Vendor in writing, the Vendor reserves the right to rescind this Agreement and to charge the following default fees:

________

§ 6. PAYMENT OF DEPOSIT

6.1 The Purchaser shall pay the sum of ₦________ (________) as a deposit to the Vendor. The payment shall be due on ________.

6.2 The deposit shall be refunded in the following circumstances:

________

6.3 If the deposit remains unpaid on the due date or any extension agreed by the Vendor in writing, the Vendor reserves the right to rescind this Agreement.

§ 7. CONDITIONS PRECEDENT

7.1 The Completion of this Agreement and the purchase of the Asset by the Purchaser is conditional upon the fulfilment of the following:

(I) a resolution of the board of directors of the Vendor approving the sale of the Asset has been duly passed and signed;

(II) the Purchaser has obtained the requisite consent and authority to purchase the Asset;

(III) this Agreement and any other agreement entered into by the Parties in connection with this Transaction have been duly executed by all the Parties;

(IV) all title documents evidencing ownership of the Asset have been properly delivered to the Purchaser;

(V) the warranties and representations of the Vendor remain true and correct in all material respects.

7.2 The Purchaser shall not be obliged to complete this Transaction unless all necessary documents and information have been provided by the Vendor.

7.3 If these conditions precedent are not met or cannot be achieved within a reasonable period, the Parties may by mutual agreement proceed with such alternative means as they may agree in writing or terminate this Agreement.

§ 8. PRE-COMPLETION MATTERS

8.1 The Vendor undertakes not to offer the Asset for sale to any party other than the Purchaser during the subsistence of this Transaction.

8.2 The Vendor covenants that there is no Material Adverse Change that may affect its performance of any part of this Agreement and undertakes to notify the Purchaser in writing of any Material Adverse Change arising in the course of the Transaction.

8.3 The Vendor shall grant to the Purchaser and its employees, solicitors, accountants and other authorised representatives the right to inspect the Asset and to obtain records pertaining to the Asset for the purpose of conducting due diligence.

8.4 If the Vendor breaches any covenant in this § 8, the Purchaser shall be entitled to seek injunctive relief and other equitable remedies available under the law.

§ 9. COMPLETION

9.1 Completion shall take place on the Completion Date at the following place:

________

9.2 This Transaction shall be completed when:

(I) the conditions precedent and pre-completion requirements have been satisfied in full or waived by mutual agreement;

(II) the Purchaser has paid the Purchase Price in full; and

(III) the title documents, contracts and other materials and documents relating to the title, ownership and transfer of the Asset have been delivered to the Purchaser.

9.3 If Completion does not take place on the Completion Date due to the default of the Purchaser, the Purchaser shall pay the sum of ₦________ (________) in respect of reasonable costs and expenses incurred by the Vendor under this Agreement.

§ 10. POST-COMPLETION OBLIGATIONS

After Completion, the Vendor shall deliver to the Purchaser all documents of title, records, correspondence, files and other papers relating to the Asset and this Transaction, and shall execute all such further documents and do all such further acts as the Purchaser may reasonably require to vest full title in the Asset in the Purchaser.

§ 11. REPRESENTATIONS AND COVENANTS OF THE VENDOR

11.1 The Vendor undertakes that during the subsistence of this Transaction it will maintain the Asset, Business and employees of the Business in the ordinary course.

11.2 The Vendor represents that it shall comply with the terms of this Agreement and all applicable laws and shall not:

(I) sell, lease or otherwise transfer its rights and interests in the Asset to any party other than the Purchaser;

(II) create or incur any Encumbrance on the Asset;

(III) enter into any contract, agreement, commitment or option which involves the sale of the Asset with any party other than the Purchaser.

§ 12. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER

The Purchaser hereby represents and warrants that:

(I) the Purchaser has full power and authority to enter into, perform and carry out its obligations under this Agreement;

(II) the Purchaser is not insolvent or unable to pay its debts and has the financial capability to pay the Purchase Price;

(III) the Purchase Price for the Asset shall be paid as and when due;

(IV) the execution, delivery and performance of this Agreement is not impaired by any other valid agreement to which it is a party.

The Purchaser declares and acknowledges that it has conducted its own due diligence investigations on the business affairs of the Vendor and has not relied solely on the information contained in the Information Memorandum.

§ 13. TERMINATION

13.1 This Agreement may be terminated as follows:

(I) by either Party where they mutually agree in writing that the Agreement should be terminated;

(II) by the Vendor where the Purchaser fails to purchase the Asset on the Completion Date or fails to perform its obligations under this Agreement;

(III) by either Party if the Vendor is unable to satisfy the conditions precedent.

13.2 Any Party wishing to terminate this Agreement pursuant to (II) and (III) above shall deliver a ________ written notice of its intention to terminate this Agreement.

13.3 No Party shall be under any liability to the other by reason of a termination under (III) above. If the Purchase Price or any part thereof has been paid, the Vendor shall refund the amount paid together with interest at the rate of ________% per annum.

13.4 Following termination, no Party shall be obliged to perform any further obligations, provided that the Parties shall remain bound by the confidentiality obligations, the obligation to pay reasonable costs and expenses as agreed, and the other surviving miscellaneous provisions of this Agreement.

§ 14. CONFIDENTIALITY OBLIGATIONS

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14.2 Confidential Information includes all information or materials of whatever nature relating to the purpose of this Agreement disclosed by either Party, whether in writing, orally or otherwise, including documents, techniques, practices, tools, specifications, inventions, patents, trademarks, software, drawings and programmes, but shall not include information or data:

(I) which can be established by written records to be already known to the Receiving Party or to the public at the time of disclosure;

(II) which enters the public domain through no fault of the Receiving Party;

(III) which is given by the Disclosing Party to third parties without restriction;

(IV) which is given to the Receiving Party by a third party lawfully in possession of such information and having the legal right to disclose it; or

(V) which is required by law or by an order of a court or competent regulatory authority to be disclosed.

14.3 Trade Secret Information includes all formulae, patterns, designs, processes, methods or other information that is not known or easily ascertainable by the general public.

14.4 Each Party agrees:

(I) to take proper and reasonable measures to protect the proprietary information disclosed under this Agreement;

(II) not to make public, publish or otherwise disclose, in whole or in part, any information relating to the practices, business dealings or other matters relating to the other Party without the requisite consent;

(III) not to use the Confidential Information for any purpose other than the purpose for which this Agreement was made.

14.5 Where the performance of this Agreement involves the processing of personal data, each Party shall comply with the Nigeria Data Protection Act 2023 and any regulations made thereunder, and shall process such personal data only for the purposes of this Agreement and in accordance with applicable law.

14.6 Each Party agrees not to disclose any Trade Secret Information or Confidential Information during the subsistence of and after the termination of this Agreement for so long as it remains a trade secret or confidential.

§ 15. INDEMNITY

Each Party agrees to indemnify and hold the other Party harmless from and against all suits, actions, damages, liabilities, judgments, settlements, costs, expenses and disbursements of any kind whatsoever reasonably incurred by the other Party arising out of or in connection with the indemnifying Party's failure to comply with the obligations and warranties contained in this Agreement.

§ 16. FORCE MAJEURE

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16.2 Without prejudice to the generality of the foregoing, force majeure shall include: war, hostilities or invasion; rebellion, terrorism, revolution, insurrection, military or usurped power; riot, civil disorder; epidemic or pandemic; and acts of God which may reasonably affect the ability of a Party to fulfil its obligations under this Agreement.

§ 17. NOTICES

All notices under this Agreement shall be in writing and shall be delivered personally, sent by registered or certified mail, or by email to the Parties at the addresses set out below or such other address as a Party may notify. The addresses for service of notices are:

In the case of the Vendor to:

________

Address: ________

Attention: ________

Email: ________

In the case of the Purchaser to:

________

Address: ________

Attention: ________

Email: ________

The addresses may be changed by either Party at any time by giving written notice to the other Party.

§ 18. DISPUTE RESOLUTION

18.1 The Parties shall use their best endeavours to negotiate and amicably settle any dispute or difference arising from or in connection with this Agreement.

18.2 Any dispute that cannot be amicably resolved by the Parties within ________ shall be referred to and finally resolved by arbitration in accordance with the Arbitration and Mediation Act 2023 or any statutory re-enactment or modification thereof.

18.3 There shall be ________ arbitrator(s) who shall be appointed in the following manner:

________

18.4 The seat and venue of the arbitration shall be ________ and the proceedings shall be conducted in the English language.

18.5 Each Party shall bear its own costs and expenses in relation to the arbitration proceedings, save where an award is made by the arbitral tribunal directing that costs be borne by a particular Party.

18.6 The award of the arbitral tribunal shall be final and binding on the Parties and may be enforced by any court of competent jurisdiction.

§ 19. CUMULATIVE RIGHTS

The rights of the Parties under this Agreement are cumulative and shall not be construed as exclusive of one another except as otherwise provided by law.

§ 20. ENTIRE AGREEMENT

This Agreement and any other agreement referred to herein constitute the entire agreement between the Parties and supersede all prior written or oral agreements, understandings and representations made between the Parties relating to its subject matter.

§ 21. ASSIGNMENT

Neither Party may assign, transfer, charge or otherwise deal with all or any of its rights and obligations under this Agreement, nor grant, declare, create or dispose of any right or interest in it, in whole or in part, without the prior written consent of the other Party.

§ 22. WAIVER

No failure or delay by either Party in exercising any right, power or remedy under this Agreement shall operate as a waiver of that right, power or remedy, nor shall any single or partial exercise of any right, power or remedy preclude any further exercise of it or the exercise of any other right, power or remedy. Any waiver must be in writing and signed by the waiving Party to be effective.

§ 23. GOVERNING LAW

This Agreement shall be governed by and construed in accordance with the laws of the Federal Republic of Nigeria.

§ 24. SEVERABILITY

If any provision of this Agreement is held to be invalid, illegal or unenforceable, the remaining provisions shall continue in full force and effect.

§ 25. STAMP DUTY

The Parties acknowledge that this Agreement and any instrument of transfer executed pursuant to it are liable to stamp duty under the Stamp Duties Act, Cap S8, Laws of the Federation of Nigeria 2004 (as amended). The cost of stamping shall be borne by ________.

§ 26. COUNTERPARTS

This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original, and all of which together shall constitute one and the same agreement.

IN WITNESS WHEREOF the Parties hereto have executed this Agreement the day and year first above written.

SIGNED, SEALED AND DELIVERED by the within named Vendor,

________:

________________________
DIRECTOR

Name: ________

________________________
DIRECTOR/SECRETARY

Name: ________

SIGNED, SEALED AND DELIVERED by the within named Purchaser,

________:

________________________
DIRECTOR

Name: ________

________________________
DIRECTOR/SECRETARY

Name: ________

SCHEDULE A

DESCRIPTION OF THE ASSET

The Asset subject to this Agreement is as follows:

________

SCHEDULE B

WARRANTIES

1. Title to the Asset

The Vendor has legal title to the Asset and has full right, power and authority to transfer its title in the Asset to the Purchaser, free from Encumbrances, together with all rights attached to the Asset. The Vendor is not party to any commitment or contract that will create an Encumbrance on the Asset, and upon Completion title to the Asset shall be transferred to the Purchaser.

2. Condition of the Asset

The Vendor warrants that the Asset is in good and proper condition, save for reasonable wear and tear, and is suitable for the purpose for which the Purchaser intends to use it at the conclusion of this Transaction.

3. Organisation, Authority and Capacity

The Vendor is a private company limited by shares, duly incorporated under the laws of the Federal Republic of Nigeria. The Vendor has the power to conduct its Business and to enter into and comply with its obligations under this Agreement.

4. Corporate Authority

The Vendor has full power, capacity, authority and legal right to own, lease and sell its assets and to perform its obligations under this Agreement.

The execution, delivery and performance of this Agreement and any related agreement, and the consummation of the Transaction, are within the Vendor's corporate powers and have been duly authorised by all requisite corporate action in accordance with CAMA, and the persons executing and delivering this Agreement have been duly authorised to do so.

The Vendor has obtained all requisite authorisations necessary to execute, perform and comply with its obligations under this Agreement, and upon Completion the Asset will be transferred to the Purchaser free from Encumbrances.

5. Books and Records

The books and records of the Vendor, including its register of members, register of directors and secretaries, and minute books, are complete and correct in all material respects and accurately and fairly reflect all meetings and corporate actions of its shareholders, board of directors and company secretary and the nature of the transactions of the company.

6. No Conflict

The Vendor's execution and performance of its obligations under this Agreement does not:

(I) conflict with the terms of any other agreement to which the Vendor is a party or by which it is bound;

(II) violate the provisions of its Articles or other rules regulating its affairs and business;

(III) violate any authorisation, judgment, order, statute or regulation applicable to the Vendor;

(IV) result in the creation or imposition of any Encumbrance upon the Asset of the Vendor.

7. Material Adverse Change

No event or condition which could constitute a Material Adverse Change on the Vendor has occurred.

8. Litigation

There is no claim, action, suit, proceeding, arbitration or investigation pending or, to the knowledge of the Vendor, threatened against or affecting the Vendor or the Asset before any court, tribunal, arbitrator or governmental or regulatory authority.

The Vendor is not in default in respect of any judgment, order, decree or award of any court, tribunal, arbitrator or governmental or regulatory authority that may affect the Asset or its ability to perform its obligations under this Agreement.

9. Compliance with Law

The Vendor is in compliance with all applicable laws and has not received any advice or notice of any non-compliance with any law or administrative order.

10. Disclosures

This Agreement and any certificate or document delivered in connection with this Transaction contains a true statement of material fact and does not omit any material fact necessary to make the statements contained therein not misleading.