Small-Business Asset Purchase Agreements: Closing and Handover

The Luna agreement supports treating its material consents as closing conditions.

Each of the Material Consents shall have been obtained and shall be in full force and effect.

See §7.3

Way Law explains that a deferred closing locks in deal terms while leaving time to obtain third-party consents and approvals.

A sign-then-close arrangement allows the parties to lock in material deal points like the purchase price, the representations, and warranties based on the due diligence, and then have time to secure these third-party consents and approvals.

See Way Law PLLC, Understanding Closing: Sign and Close vs. Sign Then Close (Apr. 1, 2025).

The Grove agreement held its closing simultaneously with the execution and delivery of the agreement.

Subject to the terms and conditions of this Agreement, the closing of the purchase, sale and transactions contemplated by this Agreement (the “Closing”) shall be held simultaneously with the execution and delivery of this Agreement, which is the date of this Agreement first above set forth.

See §2.3

The Bankrate agreement defined the disclosure schedules as those delivered by the seller parties and the buyer concurrently with the execution and delivery of the agreement.

“Disclosure Schedules” means the Disclosure Schedules with respect to the representations and warranties set forth in Articles 3, 4 and 5 delivered by Seller Parties and Buyer concurrently with the execution and delivery of this Agreement.

See §1.1 (Disclosure Schedules)

The Luna agreement required the seller to deliver at closing a bill of sale for tangible personal property and an assignment and assumption agreement for intangible assets.

(c) Seller shall deliver or cause to be delivered to Buyer the following items (in form and substance reasonably satisfactory to Buyer and its counsel, unless otherwise specified below): (i) a bill of sale for all of the Purchased Assets that are Tangible Personal Property in substantially the form of Exhibit B (the “Bill of Sale”), duly executed by Seller; (ii) an assignment of all of the Purchased Assets that are intangible personal property in substantially the form of Exhibit C, which assignment shall also contain Buyer’s undertaking and assumption of the Assumed Liabilities (the “Assignment and Assumption Agreement”), duly executed by Seller;

See §2.7(c)(i)–(ii)

The Luna agreement required the buyer to deliver at closing the escrow agreement, the assignment and assumption agreement and the assignment of lease signed by the buyer, and a certificate that its closing conditions were satisfied.

(d) Buyer shall deliver, or cause to be delivered, to Seller the following items (in form and substance reasonably satisfactory to Seller and its counsel, unless otherwise specified below): (i) the Escrow Agreement, duly executed by Buyer and the Escrow Agent; (ii) the Assignment and Assumption Agreement, duly executed by Buyer; (iii) the Assignment of Lease, duly executed by Buyer; (iv) a certificate, dated as of the Closing Date, executed by Buyer stating that the conditions specified in Section 8.1 and Section 8.2 have been satisfied;

See §2.7(d)(i)–(iv)

The Grove agreement required the seller to deliver at closing assignments of patents, trademarks and copyrights and a domain name assignment, among other documents.

(ii) An Assignment of Patents, Assignment of Servicemarks and Trademarks and Assignment of Copyrights in the form of Exhibits F-1, F-2 and F-3 executed by Seller; and (iii) Non-Competition Agreements in the form of Exhibit G (the "Selling Parties’ Non-Competition Agreements") executed by each of the Selling Parties; and (iv) Employment Agreements in the form of Exhibits H-1 and H-2 executed by each of the Seller Stockholders (“the Employment Agreements”) Page 6 (v) An opinion from Seller’s legal counsel in form and substance as set forth in Exhibit I attached hereto, addressed to the Buyer; and (vi) A certificate executed by the President of Seller certifying that such President has the power and authority to enter into on behalf of Seller this Agreement and the other documents to be executed by Seller pursuant hereto, and to bind Seller hereto and thereto; and (vii) A Domain Name Assignment in the form of Exhibit J executed by Seller;

See §2.5(a)(ii)–(vii)

The Grove agreement required payoff letters from each lienholder at closing and, after closing, copies of filed UCC-3 termination statements or similar evidence of satisfaction.

(xi) Payoff letters from each Person who has any Lien on or affecting any or all of the Acquired Assets, which letters shall state the outstanding amount of the obligation secured by the Lien (which amount shall be paid by Seller at Closing to such Person) and, after Closing, Seller shall provide copies of executed and filed UCC-3 termination statements and/or similar or other instruments evidencing the satisfaction of such indebtedness or other obligation in each jurisdiction where evidence of such obligation is necessary to perfect such satisfaction;

See §2.5(a)(xi)

The Luna agreement required the seller to deliver a certificate that its closing conditions were satisfied and a secretary's certificate attaching approving resolutions.

(x) a certificate, dated as of the Closing Date, executed by Seller stating that the conditions specified in Section 7.1, Section 7.2 and Section 7.8 have been satisfied; (xi) a certificate of the Secretary of Seller, dated as of the Closing Date, certifying, as complete and accurate as of the Closing, attached copies of the Governing Documents of Seller, (i) certifying and attaching all requisite resolutions or actions of Seller’s board of directors and shareholders approving the execution and delivery of this Agreement and the consummation of the Contemplated Transactions and the change of name contemplated by Section 10.4 and (ii) certifying as to the incumbency and signatures of the officers of Seller executing this Agreement and any other Transaction Document;

See §2.7(c)(x)–(xi)

The Luna agreement required the buyer at closing to wire the purchase price less the escrow amount to the seller and to wire the escrow amount to the escrow agent.

In addition to any other documents or deliverables to be delivered under other provisions of this Agreement, at the Closing: (a) Buyer shall pay or cause to be paid, in cash by wire transfer of immediately available funds to an account designated in writing by Seller to Buyer, the Purchase Price less the Escrow Amount; (b) Buyer shall deliver the Escrow Amount, in cash by wire transfer of immediately available funds, to the Escrow Agent, to be held and disbursed by the Escrow Agent in accordance with the terms of this Agreement and the Escrow Agreement;

See §2.7(a)–(b)

The Luna agreement required the buyer to deliver at closing the escrow agreement signed by the buyer and the escrow agent.

(d) Buyer shall deliver, or cause to be delivered, to Seller the following items (in form and substance reasonably satisfactory to Seller and its counsel, unless otherwise specified below): (i) the Escrow Agreement, duly executed by Buyer and the Escrow Agent; (ii) the Assignment and Assumption Agreement, duly executed by Buyer; (iii) the Assignment of Lease, duly executed by Buyer; (iv) a certificate, dated as of the Closing Date, executed by Buyer stating that the conditions specified in Section 8.1 and Section 8.2 have been satisfied;

See §2.7(d)(i)–(iv)

The Chefs' Warehouse agreement required the seller parties to deliver at closing a signed closing statement setting forth the flow of funds, and the signed escrow agreements.

At the Closing, the Seller Parties shall deliver to Buyer, in addition to any other documents to be delivered under the provisions of this Agreement, all of the following documents: (i) the Closing Statement, dated as of the date hereof, setting forth the flow of funds for the transactions contemplated by this Agreement, duly executed by each of the Seller Parties (the “Closing Statement”); (ii) the Escrow Agreement A and the Escrow Agreement B, duly executed by the Seller and its Subsidiaries and the Shareholder, as applicable;

See §1.9(a)(i)–(ii)

The Grove agreement required a transition services agreement signed by the seller and countersigned by the buyer at closing.

(xiii) A Transition Services Agreement in the form of Exhibit K executed by Seller; (xiv) GS1 Company Prefix Release Letter executed by Seller; and (xv) Such other documents executed by the Selling Parties as may be reasonably requested by the Buyer. (b) The Buyer shall deliver to the Seller: (i) The Selling Parties’ Non-Competition Agreements executed by Buyer; and (ii) The Employment Agreements executed by Buyer; and (iii) The Transition Services Agreement executed by Buyer;

See §2.5(a)(xiii), (b)(iii)

The Luna agreement required the buyer to deliver a net working capital statement no later than 75 days after closing.

(a) As soon as practicable but in no event later than 75 days after the Closing Date, Buyer shall deliver to Seller a statement (the “Net Working Capital Statement”) of the Net Working Capital as of the Closing without giving effect to any of the Contemplated Transactions and determined in accordance with the Applicable Accounting Principles (as may be adjusted pursuant to Section 2.8(f) below, the “Final Net Working Capital”), together with supporting calculations.

See §2.8(a)

The Grove agreement required the selling parties, after closing and at the buyer's request, to deliver further transfer instruments needed to vest title in the buyer.

Following the Closing Date, at the request of the Buyer, the Selling Parties shall deliver any further instruments of transfer and shall take all such further action as may be necessary or appropriate to vest in the Buyer good title to the Acquired Assets that were to be transferred previously and to effectuate the transactions contemplated herein.

See §2.6

The Greenfield Online agreement conditioned the buyer's obligation to close on receiving all of the seller's closing deliveries and on the accuracy of the seller's representations.

The obligations of Buyer to consummate the Closing are subject to the satisfaction of each of the following conditions (any of which may be waived by Buyer, in whole or in part): (a) Buyer shall have received all of the deliveries from Seller required pursuant to Sections 2.5 hereof; -18- (b) The representations and warranties made by Seller pursuant to Section 3 shall be true and correct in all material respects (except for such representations and warranties as are already qualified by materiality concepts, which shall be true and correct as of the Closing Date) on and as of the Closing Date as though made on and as of the Closing Date or, in the case of representations and warranties made as of a specified date earlier than the Closing Date, on and as of such earlier date;

See §7.1(a)–(b)

The Luna agreement let the buyer or the seller terminate if the other's closing conditions would not be fulfilled by December 31, 2018, unless the terminating party's own failure to perform caused it.

(c) by Buyer, if any of the conditions set forth in Article 7 shall not have been, or if it becomes apparent that any of such conditions will not be, fulfilled by December 31, 2018, unless such failure shall be due to the failure of Buyer to perform or comply with any of the covenants or agreements hereof to be performed or complied with by it prior to the Closing; (d) by Seller, if any of the conditions set forth in Article 8 shall not have been, or if it becomes apparent that any of such conditions will not be, fulfilled by December 31, 2018, unless such failure shall be due to the failure of Seller

See §9.1(c)–(d)

The Luna agreement supports treating its material consents as closing conditions.

Each of the Material Consents shall have been obtained and shall be in full force and effect.

See §7.3

Jennifer M. Settles explains that anti-assignment clauses require third-party consent before the buyer can assume the contract.

These “anti-assignment clauses” trigger the need for a third-party consent before the Buyer can assume the contract.

See Jennifer M. Settles, Third-Party Consents, Law Office of Jennifer M. Settles (Apr. 25, 2025).

The Greenfield Online seller represented that, except as set forth in Schedule 3.10, it was not party to any contract requiring counterparty consent to the transaction.

Except as set forth in Schedule 3.10, Seller is not party to any contract or agreement that would require consent from the counterparty thereto to any of the transactions contemplated hereby.

See §3.10

The Luna seller represented that, except as set forth in Schedule 3.2(c), it was not required to give notice to or obtain consent from any person for the transaction.

(c) Except as set forth in Schedule 3.2(c), Seller is not required to give any notice to or obtain any Consent from any Person in connection with the execution and delivery of this Agreement or the consummation or performance of any of the Contemplated Transactions.

See §3.2(c)

The Luna agreement required the seller to use best efforts to obtain all material consents.

Seller shall use Best Efforts to obtain all Material Consents.

See §5.4

The Luna agreement required the buyer to cooperate in obtaining the consents identified in Schedule 3.2(c), without having to change its business, spend material funds or incur other burdens.

Buyer also shall cooperate, and cause its Related Persons to cooperate, with Seller (a) with respect to all filings Seller shall be required by Legal Requirements to make and (b) in obtaining all Consents identified in Schedule 3.2(c), provided, however, that Buyer shall not be required to dispose of or make any change to its business, expend any material funds or incur any other burden in order to comply with this Section 6.1.

See §6.1

The Salem agreement required both the buyer and the seller to use reasonable efforts before closing to obtain third-party consents needed to assign assumed contracts.

Between the date of this Agreement and the Closing, Buyer and Seller shall each use its reasonable efforts to obtain the consent of any third party necessary for the assignment of any Assumed Contract.

See §7.6

Imke Ratschko describes landlord consent to the lease transfer as a usual closing condition in a typical small business sale.

In a typical small business sale, there is usually the condition that the landlord of the business premises has consented to the transfer of the lease to the new owner.

See Imke Ratschko, The Basics of an Asset Purchase Agreement, Ratschko PLLC (July 25, 2022; updated July 28, 2022).

Jennifer M. Settles describes escrowing part of the purchase proceeds at closing pending receipt of necessary consents.

One approach can involve the escrow of a portion of the purchase proceeds at closing, pending receipt of the necessary consents.

See Jennifer M. Settles, Third-Party Consents, Law Office of Jennifer M. Settles (Apr. 25, 2025).

The Salem agreement treated a contract lacking consent at closing as not assigned until consent, with the seller passing its benefits to the buyer and the buyer paying the corresponding liabilities.

In the event of a consent required with respect to the assignment of an Assumed Contract that has not been obtained before the Closing, then such Assumed Contract will be deemed not assigned until such consent shall have been obtained and, following the Closing Seller shall provide Buyer with the benefits of any such Assumed Contract until such consent is obtained, provided that Buyer shall undertake to pay or satisfy the corresponding liabilities for the enjoyment of such benefits to the extent Buyer would have been responsible therefor if such consent had been obtained and such Assumed Contract assigned and assumed by Buyer as of the Closing Date.

See §7.6

USCIS lets an acquiring or successor employer treat continuing employees either as new hires with new Forms I-9 or as continuing employees with the previously completed forms.

Employers who have acquired another company or have merged with another company may choose to treat employees who are continuing their employment with the related, successor, or reorganized employer as: - New hires, in which case employers must complete a new Form I-9, Employment Eligibility Verification; or - Continuing in employment, in which case employers must obtain and maintain the previously completed Form I-9.

See U.S. Citizenship and Immigration Services, I-9 Central, Mergers and Acquisitions (accessed Sept. 28, 2026).

A successor employer that keeps the prior Forms I-9 accepts responsibility for errors or omissions on them.

Employers who choose to keep the previously completed Form I-9 accept responsibility for any errors or omissions on those forms.

See U.S. Citizenship and Immigration Services, I-9 Central, Mergers and Acquisitions (accessed Sept. 28, 2026).

In a sale of all or part of a business, the WARN Act makes the seller responsible for notice through the sale's effective date and the purchaser afterward, and treats the seller's employees as the purchaser's employees immediately after the sale.

(1) In the case of a sale of part or all of an employer's business, the seller shall be responsible for providing notice for any plant closing or mass layoff in accordance with section 2102 of this title, up to and including the effective date of the sale. After the effective date of the sale of part or all of an employer's business, the purchaser shall be responsible for providing notice for any plant closing or mass layoff in accordance with section 2102 of this title. Notwithstanding any other provision of this chapter, any person who is an employee of the seller (other than a part-time employee) as of the effective date of the sale shall be considered an employee of the purchaser immediately after the effective date of the sale.

See 29 U.S.C. § 2101(b)(1).

The WARN Act covers employers with 100 or more employees excluding part-time employees, or 100 or more employees working at least 4,000 hours a week in total.

(1) the term "employer" means any business enterprise that employs- (A) 100 or more employees, excluding part-time employees; or (B) 100 or more employees who in the aggregate work at least 4,000 hours per week (exclusive of hours of overtime); (2) the term "plant closing" means the permanent or temporary shutdown of a single site of employment, or one or more facilities or operating units within a single site of employment, if the shutdown results in an employment loss at the single site of employment during any 30-day period for 50 or more employees excluding any part-time employees;

See 29 U.S.C. § 2101(a)(1)–(2).

An acquiring employer that chooses to complete new Forms I-9 may do so before the acquisition takes place, as long as it has offered the acquired employee a job and the employee has accepted.

Employers who choose to complete a new Form I-9 may do so before the merger or acquisition takes place as long as the employer has offered the acquired employee a job and the employee has accepted the offer.

See U.S. Citizenship and Immigration Services, I-9 Central, Mergers and Acquisitions (accessed Sept. 28, 2026).

USCIS guidance says an employer should review each retained Form I-9 with the employee and update or reverify the employee's information as necessary.

Employers should review each Form I-9 with the employee and update or reverify the employee’s information, as necessary.

See U.S. Citizenship and Immigration Services, I-9 Central, Mergers and Acquisitions (accessed Sept. 28, 2026).

WARN Act rights are in addition to, and not in lieu of, other contractual or statutory rights of employees, and the WARN notice period runs concurrently with any notice period required by contract or another statute.

The rights and remedies provided to employees by this chapter are in addition to, and not in lieu of, any other contractual or statutory rights and remedies of the employees, and are not intended to alter or affect such rights and remedies, except that the period of notification required by this chapter shall run concurrently with any period of notification required by contract or by any other statute.

See 29 U.S.C. § 2105.

California's plant-closing statute defines a covered establishment as an industrial or commercial facility that employs, or has employed within the preceding 12 months, 75 or more persons.

(a) “Covered establishment” means any industrial or commercial facility or part thereof that employs, or has employed within the preceding 12 months, 75 or more persons.

See Cal. Lab. Code § 1400.5(a).

The Jeffs Brands agreement supports distinguishing its defined migration milestone from delivery of remaining assets.

It is possible that some portion of the Assets will continue to be transferred to Buyer after the Completed Migration.

See Migration Process, paragraph (b)

The Jeffs Brands agreement gave the buyer fourteen days after migration to inspect the assets while operating them as close as possible to the seller's operation.

Buyer shall have a period of fourteen (14) days from the Completed Migration to fully inspect the Assets (“Inspection Period”) upon the following terms and conditions: (a) During the Inspection Period, Buyer shall operate the Assets in a manner as close as possible to Seller’s operation and shall not make any material changes, including addition of new expenses, without Seller’s prior written consent.

See Inspection Period, ¶8

1Password states that sharing an item creates a unique link whose expiry and permitted recipients the sender chooses.

When you share an item, you’ll get a unique link that you can send to others. Choose when the link expires and who it’s available to: anyone with the link or only specific people.

See Introduction; accessed September 29, 2026

1Password states that a shared item is a copy and that later changes are not shared until a new link is shared.

To change an item’s details after you’ve already shared a copy, update the item then share a new link. Your changes won’t be shared until you share the item again.

See Share an item; accessed September 29, 2026

GitHub states that its support team cannot restore access to a two-factor-protected account whose two-factor credentials or recovery methods are lost.

For security reasons, GitHub Support will not be able to restore access to accounts with two-factor authentication enabled if you lose your two-factor authentication credentials or lose access to your account recovery methods.

See Warning; accessed September 29, 2026

GitHub states that regaining access through a one-time password can take up to three business days.

For security reasons, regaining access to your account by authenticating with a one-time password can take up to three business days.

See Authenticating with a verified device, SSH token, or personal access token; accessed September 29, 2026

GitHub states that the original owner is added as a collaborator on a transferred repository.

The original owner of the repository is added as a collaborator on the transferred repository. Other collaborators to the transferred repository remain intact.

See Prerequisites for repository transfers; accessed September 29, 2026

TrustMRR's FAQ says the seller transfers the agreed assets and escrow releases the funds once both sides confirm the transfer is complete.

The buyer pays the full purchase price into escrow, the seller transfers the agreed assets (code, domain, accounts, etc.), and escrow releases the funds once both sides confirm the transfer is complete.

See Deals, Legal Docs, and Payments; accessed September 29, 2026

TrustMRR's FAQ says escrow needs verifiable asset details, including URLs for public assets in the APA.

Escrow needs verifiable asset details. If you’re transferring public assets (domains, social accounts, repos, etc.), include their URLs in the APA. Missing or vague asset details can lead to rejection.

See Deals, Legal Docs, and Payments; accessed September 29, 2026

The Jeffs Brands agreement had the broker release the purchase price, less the broker's retained commission, after the inspection period expired.

Within a commercially reasonable time after expiration of the Inspection Period, Broker will release ninety-two percent (92%) of the Purchase Price to Seller and Broker will retain the remaining eight percent (8%) as a portion of its Commission.

See Release of the Purchase Price, ¶9(a)

The Jeffs Brands agreement deemed a buyer that gave no written termination notice within the inspection period to have waived all contingencies, including changes in the assets' performance.

If Buyer fails to provide written notification of his request to terminate this Agreement within the Inspection Period, Buyer is deemed to have freely and voluntarily waived any and all contingencies in connection with the purchase of the Assets, including any discrepancies, fluctuations, or changes in the performance of the Assets and specifically its gross revenue, net revenue, expenses, traffic, and other metrics of performance, including any discrepancies, fluctuations, or changes in the performance of the Assets during the Migration Process and/or during the Inspection Period

See Inspection Period, ¶8(j)

GitHub states that an account holder who cannot use any recovery method has permanently lost access to the account.

If you cannot use any recovery methods, you have permanently lost access to your account.

See Introduction; accessed September 29, 2026