The Asset For Share Agreement is a specialized commercial agreement used in Australian business transactions where assets are exchanged for shares rather than cash consideration. This document is particularly useful in business restructuring, corporate reorganizations, or when incorporating a business structure where existing assets need to be transferred into a company. The agreement must comply with Australian corporate and tax laws, including the Corporations Act 2001 (Cth) and relevant state legislation. It typically includes detailed provisions covering asset identification, share issuance terms, warranties about the assets and the company, tax implications, and completion mechanics. This type of agreement is commonly used in situations where business owners want to corporatize their business assets or when companies are looking to acquire assets through share-based consideration rather than cash payments.
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1. Parties: Identification of the parties to the agreement
2. Background: Context of the transaction and high-level description of the arrangement
3. Definitions and Interpretation: Key terms used throughout the agreement and interpretation rules
4. Agreement to Transfer and Issue: Core transaction terms - transfer of assets and issuance of shares
5. Consideration: Details of share consideration and any additional consideration
6. Conditions Precedent: Conditions that must be satisfied before completion
7. Pre-Completion Obligations: Obligations of parties between signing and completion
8. Completion: Mechanics and timing of completion, including actions required
9. Post-Completion Obligations: Obligations after completion, including transitional arrangements
10. Warranties: Standard warranties from both parties regarding capacity, title, and business
11. Tax Indemnities: Specific indemnities relating to tax liabilities
12. General Indemnities: Other indemnities relating to the assets and business
13. Confidentiality: Obligations regarding confidential information
14. Announcements: Requirements for public announcements about the transaction
15. Costs and Stamp Duty: Allocation of transaction costs and stamp duty
16. General Provisions: Standard boilerplate provisions including notices, governing law, etc.
1. FIRB Approval: Required when foreign investment approval is needed
2. Intellectual Property: Specific provisions for IP transfer when significant IP assets involved
3. Employee Matters: Required when employees are being transferred or retained
4. Real Property Provisions: Specific provisions when real property assets are involved
5. Earn-out Provisions: When part of consideration is contingent on future performance
6. Competition Approval: Required for transactions requiring regulatory competition approval
7. Environmental Matters: When environmental liabilities or compliance is significant
8. Third Party Consents: Detailed provisions when key contracts require consent for transfer
9. Security Interests: Provisions dealing with existing security interests over assets
10. Working Capital Adjustment: When purchase price adjusts based on working capital at completion
1. Assets Schedule: Detailed description of all assets being transferred
2. Share Details: Details of shares being issued including class, rights, and restrictions
3. Completion Steps: Detailed checklist of actions required at completion
4. Warranties: Detailed warranties given by each party
5. Excluded Assets: List of assets specifically excluded from the transfer
6. Contracts Schedule: List of contracts being transferred
7. Employee Schedule: Details of employees and their entitlements if relevant
8. Property Schedule: Details of any real property assets included
9. Intellectual Property Schedule: Details of IP assets being transferred
10. Form of Transfer Documents: Pro forma transfer documents required at completion
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