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materials, promotional materials, studies, reports, correspondence and other similar
documents and Records and, subject to Legal Requirements, copies of all personnel Records
and other Records described in Section 2.2(g);
(h) all of the intangible rights and property of Seller, including Intellectual Property
Assets, going concern value, good-will, telephone, telecopy and e-mail addresses, websites
and listings and those items listed in Part 3.25(d), (e), (f) and (h);
(i) all insurance benefits, including rights and proceeds, arising from or relating to the
Assets or the Assumed Liabilities prior to the Effective Time, unless expended in accordance
with this Agreement;
(j) all claims of Seller against third parties relating to the Assets, whether choate or
inchoate, known or unknown, contingent or non-contingent, including all such claims listed
in Part 2.1(j); and
(k) all rights of Seller relating to deposits and prepaid expenses, claims for refunds and
rights to offset in respect thereof which are not listed in Part 2.2(d) and which are not
excluded under Section 2.2(h).
All of the foregoing property and assets are herein referred to collectively as the “Assets”.
Notwithstanding the foregoing, the transfer of the Assets pursuant to this Agreement shall not
include the assumption of any Liability in respect thereof unless the Buyer expressly assumes such
Liability pursuant to Section 2.4(a).
COMMENT
The identities of the specific assets to be transferred and the liabilities to be assumed
(see Section 2.4) are the heart of an asset purchase transaction. The acquisition agreement
and the disclosure letter should identify, with some degree of detail, those assets that are to
be acquired by the buyer. The mechanism used for this identification will depend in part
upon the amount of detail the parties desire, the nature of the assets involved, and the status
of the buyer’s due diligence at the time the acquisition agreement is finalized. The
identification could be guided by a consideration of which assets listed on the balance sheet
the buyer intends to purchase. The asset description could also be used as part of the buyer’s
due diligence investigation or to confirm that investigation. To this end, the buyer could
give the seller an exhaustive list of assets and leave it to the seller to tailor the list to fit the
assets the seller has and considers part of the assets being sold.
The Model Agreement initially describes the assets to be acquired in a general way,
followed by a categorization into the groupings listed in Section 2.1. This general
description is further supplemented, to the extent appropriate, by reference to Parts of the
Disclosure Letter to list or describe particular items within certain groupings. This method
works well when the buyer’s due diligence is well under way at the time the acquisition
agreement is finalized and allows the parties to specify, for example, which particular
contracts buyer will acquire.
Alternatively, the parties might omit any specific identification or description and
describe the acquired assets only by categorizing them into general groupings. Although the
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