Tax and purchase price allocation asset purchase agreement pdf

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tax and purchase price allocation asset purchase agreement pdf

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Asset Sale vs. Stock Sale: What's The Difference?

Exhibit Deltak Construction Services Inc. The Seller desires to sell and assign to the Buyer, and the Buyer desires to purchase and assume from the Seller, substantially all of the assets, and certain specified liabilities, of the Business upon the terms and subject to the conditions set forth in this Agreement;. As a condition and inducement to the willingness of the Seller to enter into this Agreement, Hamon has, concurrently with the execution and delivery of this Agreement by the Buyer, executed and delivered a Guarantee pursuant to which Hamon has guaranteed the payment of the Initial Purchase Price to the Seller.

In consideration of the mutual representations, warranties, covenants and agreements and upon the terms and subject to the conditions hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties, intending to be legally bound hereby, agree as follows:. The following capitalized terms used in this Agreement have the following meanings for all purposes of this Agreement:.

Each accounting term used herein that is not specifically defined herein shall have the meaning given to it under GAAP. The Excluded Liabilities shall not be assumed by the Buyer hereunder and shall include the following:. As soon as reasonably practicable upon resolution pursuant to the Escrow Agreement of any Initial Release Date Pending Claims, all of the General Escrow Fund related to such Initial Release Date Pending Claims that is not payable to the Buyer in accordance with such resolution shall be released to the Seller in accordance with the Escrow Agreement.

The procedure for claims in connection with Losses against the General Escrow Fund will be governed by the terms of the Escrow Agreement. The Warranty Escrow will be maintained and administered by the Escrow Agent pursuant to the terms of the Escrow Agreement. The procedure for claims in connection with Losses against the Warranty Escrow Fund will be governed by the terms of the Escrow Agreement. If the Seller does not timely notify the Buyer, the Closing Working Capital Statement shall be deemed agreed to by the Seller and shall be final and binding upon the parties.

Following a determination by the Accounting Expert, the Closing Working Capital Statement shall be deemed to be amended to the extent necessary to accord with such determination and, as so amended, shall constitute the Closing Working Capital Statement, which shall be final and binding upon the parties.

The fees and expenses of the Accounting Expert shall be borne by the party whose position amount claimed or disputed is furthest from the amount determined by the Accounting Expert.

All actions to be taken and all documents to be executed and delivered by the parties at the Closing shall be deemed to have been taken and executed simultaneously, and no actions shall be deemed to have been taken nor documents executed or delivered until all have been taken, executed and delivered. At the Closing, the Seller shall deliver or cause to be delivered to the Buyer the following items unless the delivery of any of the following items is waived by the Buyer :.

At the Closing, the Buyer shall deliver or cause to be delivered to the Seller or Escrow Agent, as applicable, the following items unless the delivery of any of the following items is waived by the Seller :. The Seller is a limited liability company duly organized, validly existing and in good standing under the Laws of the State of Delaware.

Schedule 4. The Seller is duly licensed or qualified to do business, and in good standing, as a foreign limited liability company under the laws of each other jurisdiction in which the character of its properties or in which the transaction of the Business makes such qualification necessary, except where the failure to be so licensed or qualified would not reasonably be expected to have a Material Adverse Effect.

The Seller has all necessary limited liability company power and authority to conduct the Business as it is presently being conducted and to own, use and lease the Purchased Assets. The Seller owns no equity interests in any other business entity. The Seller has all necessary limited liability company power and authority to execute and deliver this Agreement and to carry out the transactions contemplated hereby. The execution and delivery of this Agreement, the performance by the Seller of its obligations hereunder and the consummation of the transactions contemplated hereby have been duly authorized by all requisite limited.

The consummation of the transactions in accordance with the terms hereof do not and will not violate, or conflict with, or result in a breach of any provisions of the organizational documents of the Seller.

Except as set forth on Schedule 4. Taking into account the adjusting entries set forth on Schedule 4. The Seller has not received any written notice of the intent of any Governmental Authority responsible for the enforcement of labor or employment laws to conduct an investigation of the Business and, to the Knowledge of the Seller, no such investigation is in progress. The Seller has provided to the Buyer true, correct and complete copies of any employment agreements, severance agreements, bonus agreements or other agreements or arrangements with such employees that set forth the terms and conditions of their employment in connection with the Business.

The Seller has not been cited, fined, served with a Notice of Intent to Fine or with a Cease and Desist Order, nor has any action or administrative proceeding been initiated or, to the Knowledge of the Seller, threatened against the Seller by reason of any actual or alleged failure to comply with the IRCA. Each Material Contract is in full force and effect, is enforceable in accordance with its terms and constitutes a legal, valid and binding obligation of the Seller.

Neither the Seller nor, to the Knowledge of the Seller, any other party is in material breach of, or material default under, any of the Material Contracts. The Seller has not received any written notice of a threat to terminate, other than in the ordinary course of business consistent with past practice, any of the Material Contracts.

To the Knowledge of the Seller, the estimated costs to complete the Assigned Customer Contracts set forth on Schedule 4. Assets free and clear of all Encumbrances other than Permitted Encumbrances. To the Knowledge of the Seller, none of the consultants or independent contractors who have performed services that are material to the Business has any right, title or interest in or to the Intellectual Property Assets that are material to the operation of the Business.

All premiums with respect to such policies are currently paid and such policies are in full force and effect. The Seller or Global Power, as disclosed in Schedule 4. The Seller has notified the applicable insurance carriers of any and all claims known to the Seller or Global Power with respect to the operations, products or services of the Business for which the Seller is insured.

The Seller holds all material Permits necessary to conduct the Business and to own and use the Purchased Assets. The Seller is not in material default or violation of any material Law applicable to the conduct of the Business or the ownership and use of the Purchased Assets. All equipment included in the Personal Property that is used in the conduct of the Business is in good condition and repair ordinary wear and tear excepted.

All leases of the Personal Property are in full force and effect and afford the Seller peaceful and undisturbed possession and use of the subject matter of the lease. The accounts receivable on the Financial Statements represent sales actually made in the ordinary course of business consistent with past practice or are valid claims as to which performance has been rendered. The reserves on the Financial Statements against the accounts receivable for returns, allowances and bad debt have been calculated in accordance with GAAP and in a manner consistent with the past practice of the Business.

Except for the fees payable to TM Capital Corp. None of the Top 10 Customers has notified the Seller in writing that it intends to terminate, cancel or otherwise materially adversely modify its business relationship with the Seller in any material respect. No other material customer, except in the ordinary course of business, has notified the Seller that it intends to terminate, cancel or otherwise materially adversely modify its business relationship with the Seller in any material respect.

No supplier of the Business that is material to the Business has, except in the ordinary course of business, notified the Seller that it intends to terminate, cancel or otherwise materially adversely modify its business relationship with the Seller in any material respect. As of the date of this Agreement, except as set forth on Schedule 4. None of the Seller or, to the Knowledge of the Seller, any director, officer, agent, employee or other person acting on behalf of the Seller is currently subject to any U.

Treasury Department. All Contracts, commitments or transactions, including all amounts payable or receivable resulting therefrom, between Global Power and any of its Affiliates, on the one hand, and the Seller or any of its Affiliates, on the other hand, are current and have been incurred in the ordinary course of business. The representations and warranties contained in this Article IV do not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements and information contained in this Article IV not misleading.

The Buyer is a corporation duly organized, validly existing and in good standing under the Laws of the State of Delaware. The Buyer has all necessary power and authority to execute and deliver this Agreement and to carry out the transactions contemplated hereby.

The execution and delivery of this Agreement, the performance by the Buyer of its obligations hereunder and the consummation of the transactions contemplated hereby have been duly authorized by all requisite action on the part of the Buyer.

This Agreement shall when executed be duly executed and delivered by the Buyer. As of the date hereof, there is no action, suit or proceeding pending or, to the knowledge of the Buyer, threatened against the Buyer or its Affiliates that, if adversely determined, would prevent, enjoin or otherwise delay the execution, delivery and performance of this Agreement.

As of the Closing Date, the Buyer will have sufficient funds to purchase the Purchased Assets and assume the Assumed Liabilities and to pay the Purchase Price on the terms and conditions contemplated by this Agreement.

The Buyer acknowledges that, except for the representations and warranties specifically provided in Article IV, no representation or warranty of any nature, whether express or implied, oral or written, is made to the Buyer.

The Buyer acknowledges that the Seller has not made any representation or warranty with respect to any projections, estimates except for the estimates contained in Schedule 4. Except as may be required to comply with the requirements of any applicable Law or the rules and regulations of any stock exchange or national market system upon which the securities of the Buyer or the Seller are listed, no party will issue any press release or other public announcement relating to the subject matter of this Agreement or the transactions contemplated hereby without the prior approval which approval will not be unreasonably withheld, conditioned or delayed of the other parties, and the parties shall cooperate as to the timing and contents of any such press release or other public announcement.

All Straddle Period Tax Returns with respect to the Business and the Purchased Assets that are not described in the immediately preceding sentence shall be prepared and filed by the Buyer. Tax Return. Such cooperation and information shall include providing powers of attorney, copies of all relevant portions of relevant Tax Returns, together with relevant accompanying schedules and relevant work papers, relevant documents relating to rulings and other determinations by Taxing Authorities, and relevant records concerning the ownership and Tax basis of property, which any such party may possess.

Each party will retain all Tax Returns, schedules, work papers, and all material records and other documents relating to Tax matters of the Business or the Purchased Assets for the first Post-Closing Tax Period ending after the Closing Date, for a Straddle Period and for all Pre-Closing Tax Periods until the expiration of the applicable statute of limitations and, to the extent notice is provided with respect thereto, any extensions thereof for the Tax periods to which the Tax Returns and other documents relate.

Each party shall make its employees reasonably available on a mutually convenient basis at its cost to provide explanation of any documents or information so provided.

The fees of the Accounting Expert shall be borne equally by the Buyer and the Seller. None of the Seller, the Buyer or any of their respective Affiliates shall take any action that it should be reasonably aware would have the effect of delaying, impairing or impeding the receipt of any required authorizations, consents, orders or approvals.

The Buyer shall be responsible for the filing fees associated with any such filings required in any jurisdiction. Neither the Seller nor the Buyer shall agree to participate in any meeting with any Governmental Authority in respect of any such filings or any investigation or other inquiry unless it consults with the other party in advance and, to the extent permitted by such Governmental Authority, gives the other party the opportunity to attend and participate at such meeting.

The Seller and the Buyer shall use their reasonable best efforts but without any payment of money by the Seller or the Buyer to obtain the Consent of the other parties to any such Purchased Asset or any claim or right or any benefit arising thereunder for the assignment or subcontracting thereof to the Buyer as the Buyer may request.

The Buyer shall cause any eligible expenses incurred by such Transferred Employee under an Employee Plan or a Global Power Employee Plan during the portion of the current plan year ending on the date such Transferred Employee begins participation in the corresponding medical or health plan made available by the Buyer to be taken into account under such medical or health plan for purposes of satisfying all deductible, coinsurance, and maximum out-of-pocket requirements that apply to such Transferred Employee for the applicable plan year as if such amounts had been paid in accordance with the medical or health plan made available by the Buyer to such Transferred Employee, provided the Seller furnishes the Buyer with records in a commercially reasonable format.

Such loans are set forth on Schedule 6. Nothing herein expressed or implied shall confer upon any employee of the Seller, or any legal representatives or beneficiaries thereof, any rights or remedies, including any right to employment or continued employment for any specified period or to be covered under or by any. It is expressly agreed and understood that the Buyer may terminate the employment of any Transferred Employee at any time after the Closing Date. Prior to and after the Closing Date, the Seller and the Buyer shall, and shall cause their respective Affiliates to, execute all documents and instruments and take all actions reasonably requested by the other and otherwise fully cooperate with the other in order to enable the replacement of the Letter of Credit and otherwise to facilitate a smooth transition with regard to the Letter of Credit.

Promptly following the receipt of a written notice from the Seller that an amount has been drawn on the letter of credit set forth on Schedule 6. Following the Closing, the Buyer shall execute or cause to be executed such further documents and instruments and take or cause to be taken such further actions as may reasonably be necessary to vest all right, title and interest in and to the Excluded Assets in Global Power, the Seller, Braden or their Affiliates, as applicable, and as may be reasonably necessary to convey, assign, transfer and deliver any and all Excluded Assets to Global Power, the Seller, Braden or their Affiliates, as applicable.

The Buyer shall cooperate affirmatively with Global Power, the Seller and Braden, as applicable, to the extent reasonably requested in writing by Global Power, the Seller or Braden, as applicable, to enforce the rights and obligations herein provided.

In the event of litigation regarding this covenant, the prevailing party in such litigation shall, in addition to any other remedies the prevailing party may obtain in such litigation, be entitled to recover from the other parties its reasonable legal fees and out of pocket costs incurred by such party in enforcing or defending its rights hereunder.

The length of time for which this covenant shall be in force shall not include and shall be extended for any period of violation or any other period required for litigation during which Global Power, the Seller or Braden seeks to enforce this covenant. In the event of litigation regarding these covenants, the prevailing party in such litigation shall, in addition to any other remedies the prevailing party may obtain in such litigation, be entitled to recover from the other parties its reasonable legal fees and out of pocket costs incurred by such party in enforcing or defending its rights hereunder.

The length of time for which these covenants shall be in force shall not include and shall be extended for any period of violation or any other period required for litigation during which the Buyer seeks to enforce these covenants. Until the Closing Date, the Seller or its Affiliates, as applicable, will pay the premiums under insurance policies that relate to the operations of the Seller prior to the Closing Date and comply with the terms of such policies in all material respects.

On or prior to the Closing Date, the Seller will purchase or cause one of its Affiliates to purchase for the benefit of the Buyer an insurance policy in respect of the Real Property described in Schedules 4. Global Power and the Seller will be named as additional insureds under the Environmental Insurance Policy. The parties hereby waive compliance with the provisions of any bulk sales, bulk transfer or similar Laws of any jurisdiction that may otherwise be applicable with respect to the sale of any or all of the Purchased Assets to the Buyer.

The Buyer will offer employment to a sufficient number of employees of the Seller, as set forth on Schedule 6. Each of the parties will use its commercially reasonable efforts to take all action and to do all things necessary in order to consummate and make effective the transactions contemplated by this Agreement including satisfaction, but not waiver, of the closing conditions set forth in Article VII.

The Title Commitment is described on Schedule 6. The Buyer has identified for the Seller those exceptions to which the Buyer objects in the Title Commitment. The Seller has agreed to. All title exceptions not listed on Exhibit E are hereby approved by the Buyer and are deemed to be Permitted Encumbrances.

The premium and any extra cost for any deletions, modifications or endorsements for the Title Policy shall be paid for by the Buyer at the Closing. Notwithstanding the foregoing, the cost of recording releases of any mortgage or other liens, or of any other instruments, that are not Permitted Encumbrances, as well as the cost of any title curative endorsements shall be borne by the Seller.

The Survey is described on Schedule 6.

Asset Purchase Agreement (Pro-Buyer Short Form) (NY)

Exhibit Exhibit Index. Disclosure Schedule Index. Schedule Index. Seller desires to sell the Business and substantially all of its assets and properties and transfer certain specified liabilities and Purchaser desires to acquire the Business and substantially all of the assets and properties, and assume certain specified liabilities, of Seller, on the terms and subject to the conditions hereinafter set forth. In addition, Mr. Matteson owns certain assets and property used by Seller in the Business, which he will convey to Purchaser in connection with the transactions contemplated hereby.


ARTICLE II Purchase and Sale, Purchase Price, Allocation and Other Related , Transfer Taxes, 20 A, Form of Set-Off Indemnity Escrow Agreement,


Asset Purchase Agreement (Pro-Buyer Short Form) (NY) | Practical Law

Exhibit Deltak Construction Services Inc. The Seller desires to sell and assign to the Buyer, and the Buyer desires to purchase and assume from the Seller, substantially all of the assets, and certain specified liabilities, of the Business upon the terms and subject to the conditions set forth in this Agreement;. As a condition and inducement to the willingness of the Seller to enter into this Agreement, Hamon has, concurrently with the execution and delivery of this Agreement by the Buyer, executed and delivered a Guarantee pursuant to which Hamon has guaranteed the payment of the Initial Purchase Price to the Seller.

Purchase Price Allocation. Sellers and Purchaser agree to and agree to cause their respective Affiliates to allocate the Purchase Price and any assumed liabilities treated as amount realized, for Tax purposes, among the assets and shares deemed sold for U. If Parent and Purchaser are unable to reach such agreement, they shall promptly thereafter cause the Independent Accounting Firm to resolve any remaining disputes. Any allocation of the Purchase Price and other relevant amounts determined pursuant to the decision of the Independent Accounting Firm shall incorporate, reflect and be consistent with the Purchase Price Allocation. All fees and expenses relating to the work, if any, to be performed by the Independent Accounting Firm shall be borne equally by Sellers, on the one hand, and Purchaser, on the other hand.

Allocation of Purchase Price. The Company may make reasonable inquiries of Purchaser and its accountants and employees relating to the Initial Allocation, and Purchaser shall use reasonable efforts to cause any such accountants and employees to cooperate with, and provide such requested information to, the Company in a timely manner. Such determination by the Arbitrating Accountant shall be i in writing, ii furnished to Purchaser and the Company as soon as practicable and in no event later than thirty 30 days after the items in dispute have been referred to the Arbitrating Accountant , iii made in accordance with the principles set forth in this Section The Allocation shall b

Related Content. A short-form asset purchase agreement for the purchase and sale of all or substantially all of the assets of a private New York corporation, drafted in favor of the buyer. This Standard Document is based on New York law, assumes a single corporate buyer and a single corporate seller, and assumes that the signing and closing of the transaction are simultaneous. This Standard Document has integrated notes with important explanations and drafting and negotiating tips. Close Drafting Note Read This Before Using Document Asset purchase agreements vary in length and complexity depending on a variety of factors, such as:.

This resource is continually monitored and revised for any necessary changes due to legal, market, or practice developments. Any significant developments affecting this resource will be described below. What's on Practical Law? Show less Show more. Ask a question. Related Content.

Dated as of July 9, Disclosure Schedule. Kelly, Jr. The Seller wishes to sell and assign to the Buyer Sub, and the Buyer Sub wishes to purchase and assume from the Seller, substantially all of the assets and liabilities of the Seller as more fully described herein , on the terms and subject to the conditions set forth in this Agreement;. Definitions and Defined Terms. The following terms will have the following meanings in this Agreement:. If the Buyer Parent and the Seller Representative are unable to mutually agree upon such a firm, then the American Arbitration Association shall select a firm of nationally recognized independent public accountants that shall have no conflict of interest with respect to either the Buyer Parent or the Seller to serve as the Appointed Arbiter.


This ASSET PURCHASE AGREEMENT (this “Agreement”), dated as of July 29, , “Post-Closing Tax Period” means any taxable period beginning after the to Seller a schedule allocating the Purchase Price, as adjusted in accordance.


Parties to the Agreement

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:. For purposes of this section, a group shall be determined in accordance with Section 13 d of the Exchange Act. An updated Schedule 2. Such updated Schedule 2. Control Act of , as amended, 15 U. Bank, National Association.

Every business transaction is unique, and buyers and sellers should always consult with the appropriate professionals attorneys and accountants when considering a business sale structure. While there are many considerations when negotiating the type of transaction, tax implications and potential liabilities are the primary concerns. If the business in question is a sole proprietorship, a partnership, or a limited liability company LLC , the transaction cannot be structured as a stock sale since none of these entity structures have stock. Instead, owners of these entity types can sell their partnership or membership interests as opposed to the entity selling its assets. If the business is incorporated, either as a regular C-corporation or as a sub-S corporation, the buyer and seller must decide whether to structure the deal as an asset sale or a stock sale.

Бринкерхофф почувствовал, как его лицо заливается краской. Двадцатисемилетняя Кармен Хуэрта была поваром-кондитером в столовой АН Б. Бринкерхофф провел с ней наедине несколько приятных и, как ему казалось, тайных встреч в кладовке. Мидж злорадно подмигнула. - Никогда не забывай, Чед, что Большой Брат знает. Большой Брат.

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