Deferred Consideration. (a) No later than fifteen (15) calendar days after the end of each calendar month following the Closing (beginning with the calendar month ending December 31, 2008) (each such calendar month period, a “Calculation Period”), Buyer shall prepare and deliver to Seller a written statement (a “Monthly Revenue Statement”) setting forth the amount of Revenue, if any, of the Company for the applicable Calculation Period (the “Monthly Revenue Amount”), together with reasonably detailed back-up information with respect to the calculation of such amount. Buyer shall, concurrently with its delivery of the Monthly Revenue Statement, pay to Seller an amount equal to the product of 0.06 multiplied by the Monthly Revenue Amount (such resulting amount, the “Preliminary Monthly Deferred Consideration”). If the Preliminary Monthly Deferred Consideration is not paid within such fifteen (15) calendar period, any such unpaid amount shall bear interest at a rate of 1% per month (or, as contemplated by Section 2.4(f), 10% per month) until paid. (b) Following any determination pursuant to Section 2.4(c) that an adjustment to the Preliminary Monthly Deferred Consideration is necessary, then (1) if the Disputed Amount is a positive number, then Buyer shall pay to Seller, no later than five (5) calendar days following the date on which the Final Monthly Revenue Amount is determined in accordance with Section 2.4(c) (such date, the “Final Monthly Revenue Determination Date”), an amount equal to the difference of (i) the product of (y) the Final Monthly Revenue Amount multiplied by (z) 0.06 minus (ii) the Preliminary Monthly Deferred Consideration (such resulting amount, the “Disputed Amount”), which is payable to Seller by means of a wire transfer of immediately available funds to an account designated in writing by Seller, and (2) if the Disputed Amount is a negative number, Seller shall pay such amount to Buyer within five (5) calendar days following the Final Monthly Revenue Determination Date. If the Disputed Amount is not paid within such five (5) calendar day period, any such unpaid amount shall bear interest at a rate of 1% per month (or, as contemplated by Section 2.4(f), 10% per month) until paid. (c) Within thirty (30) calendar days after receipt by Seller of a Monthly Revenue Statement (the “Review Period”), Seller may deliver a written notice (an “Objection Notice”) to Buyer of any good faith dispute it has with respect to the preparation or content of such Monthly Revenue Statement (it being understood that any such dispute by Seller shall relate solely to Buyer’s calculation of the Monthly Revenue Amount). During such thirty (30) calendar day period, Buyer shall promptly deliver to Seller any materials reasonably requested by Seller in order to allow Seller to verify Buyer’s calculation of the Monthly Revenue Amount. The Objection Notice shall describe in reasonable detail the items contained in such Monthly Revenue Statement that Seller disputes and the basis for any such disputes. Any items other than those disputed in the Objection Notice or arising out of or related to items disputed in the Objection Notice shall be deemed to have been accepted by Seller. If Seller does not deliver an Objection Notice with respect to a Monthly Revenue Statement within the Review Period (or if, within the Review Period, Seller informs Buyer that it has no objection to the Monthly Revenue Statement), such Monthly Revenue Statement shall be final, conclusive and binding on the Parties, except in the case of intentional misrepresentation or fraud in the preparation or presentation of any such Monthly Revenue Statement. In the event that Seller delivers a timely Objection Notice, the Parties shall negotiate in good faith to resolve the disputes. If the Parties, notwithstanding such good faith effort, fail to resolve all such disputes within fifteen (15) calendar days after Buyer receives an Objection Notice, then at any time thereafter upon the request of either Party, the Parties shall jointly engage an independent, nationally-recognized accounting firm mutually agreed to by the Parties (the “Arbitration Firm”) to resolve such dispute. As promptly as practicable thereafter (and, in any event within fifteen (15) calendar days after the Arbitration Firm’s engagement), Seller shall submit any unresolved elements of its objection to the Arbitration Firm in writing (with a copy to Buyer), supported by any documents and arguments upon which it relies. As promptly as practicable thereafter (and, in any event, within fifteen (15) calendar days after Seller’s submission of such unresolved elements), Buyer shall submit its response to the Arbitration Firm (with a copy to Seller) supported by any documents and arguments upon which it relies. The Arbitration Firm shall render its determination within fifteen (15) calendar days after its receipt of Buyer’s response. The scope of the disputes to be resolved by the Arbitration Firm shall be limited to the unresolved items on the Objection Notice. The determination of the Arbitration Firm shall be conclusive and binding on the Parties. The Monthly Revenue Amount, as finally determined pursuant to this Section 2.4(c), for a particular Calculation Period shall be referred to herein as the “Final Monthly Revenue Amount” for such Calculation Period. The costs and expenses of the Arbitration Firm’s review shall be borne by Seller unless the Final Monthly Revenue Amount exceeds the Monthly Revenue Amount specified in the Monthly Revenue Statement by 5% or more, in which case such costs and expenses shall be borne by Buyer. (d) Seller shall be entitled to receive payments pursuant to this Section 2.4 until the aggregate amount of all Final Monthly Deferred Consideration paid to Seller is equal to $5,000,000 (the “Total Deferred Consideration”). At such point, Seller shall no longer be entitled to receive any further payments pursuant to this Section 2.4. In addition, Buyer may, at any time and in its sole discretion, pay to Seller an amount equal to (A) the Total Deferred Consideration minus (B) the aggregate amount of all Final Monthly Deferred Consideration paid to Seller as of the applicable date (such resulting amount, the “Payoff Amount”). Upon Seller’s receipt of the Payoff Amount, it shall no longer be entitled to receive any further payments pursuant to this Section 2.4. (e) Except as set forth below, upon any (i) transfer, sale or assignment by Buyer of all or substantially all of the Company’s Software, (ii) transfer, sale or assignment by Buyer of all or substantially all of the assets of the Company or (iii) any Change of Control of the Company, Buyer shall pay to Seller the Payoff Amount and any Deferred Closing Amount that Buyer has not previously paid. Notwithstanding the foregoing sentence, Buyer shall be entitled to (without triggering any obligation to pay the Payoff Amount or any Deferred Closing Amount that Buyer has not previously paid) (A) enter into any of the transactions contemplated by the foregoing clauses (i)-(iii) with any Affiliate (so long as (x) such Affiliate assumes Buyer’s obligations under this Agreement and (y) any such transaction with an Affiliate is approved in advance by Seller, such approval not to be unreasonably withheld (an “Approved Transaction”)) and (B) license any of the Company’s Software in the ordinary course of business in connection with the operation of the Business by the Company and not with a view to permanently divest such Software so that it will no longer be part of the operation of the Business by the Company. For the avoidance of doubt, the transfer, sale, assignment or issuance of less than a majority of the equity interests of the Company or any Affiliate shall not trigger an obligation to pay the Payoff Amount or any Deferred Closing Amount that Buyer has not previously paid. Buyer hereby agrees that until such time as the Total Deferred Consideration is paid in full, Buyer shall cause the following legend to be included on each stock certificate representing shares of capital stock of the Company: "The securities evidenced by this certificate are subject to the terms and conditions of that certain Stock Purchase Agreement by and between ISCO International, Inc. and TAA Group Inc., dated December 5, 2008, which contains certain restrictions on transfer of the securities evidenced by this certificate. The holder of this certificate takes the same and holds it subject to the terms and conditions of such Agreement, and any transfer in conflict therewith or in derogation thereof is void and of no legal force or effect or validity whatsoever." (f) From and after a Material Payment Default, (i) the interest on past-due amounts shall be increased to 10% per month and (ii) Seller shall be entitled to exercise any and all legal remedies available to it in order to collect such past due amounts (plus the amount of interest thereon). (g) Until such time as Buyer is no longer obligated to make payments to Seller pursuant to this Section 2.4, Buyer shall not, without Seller’s consent, take any action that results in (i) avoiding amounts that would otherwise be payable to Seller pursuant to this Section 2.4, (ii) adversely affecting the monitoring or reporting of amounts payable under this Section 2.4, without a principal business objective other than the decrease of the amounts otherwise payable under this Section 2.4 or the adverse effect on the monitoring or reporting of amounts payable under this Section 2.4, as the case may be. An action will be deemed to have such a principal business objective if the projected financial results of such action are materially favorable to the Company without considering the avoidance of payments under this Section 2.4 or the adverse affect on the monitoring or reporting of amounts payable under this Section 2.4, as the case may be. Until such time as Buyer is no longer obligated to make payments to Seller pursuant to this Section 2.4, Buyer must not (A) operate or allow the Business to be operated in a manner that will, or is reasonably likely to, materially impair the ability of Buyer or its successors or assigns to make the payments provided for hereunder or (B) permit its assets to become subject to any lien, mortgage, security interest or pledge in favor of any Affiliates, officers or directors of Buyer. (h) Once per calendar year until such time as Buyer is no longer obligated to make payments to Seller pursuant to this Section 2.4, Buyer shall, and shall cause the Company to, make available to Seller, upon reasonable request and during normal business hours, copies of the books and records of Buyer and the Company for the sole purpose of determining the amounts payable pursuant to this Section 2.4 or otherwise under this Agreement. (i) Buyer’s payment obligations hereunder shall be absolute, and shall not be subject to set-off, reduction, withholding or deduction of any kind. If (i) Seller is entitled to any payments pursuant to this Section 2.4 and such payments are not paid when due and (ii) Seller successfully brings a legal action against Buyer in order to collect any such past-due amounts, then Buyer shall reimburse Seller for all legal fees incurred by Seller in connection with bringing such action.
Appears in 1 contract
Deferred Consideration. (a) No later than fifteen (15) calendar days after 4.1 At Completion or within 30 Business Days, whichever is the end of each calendar month following the Closing (beginning with the calendar month ending December 31, 2008) (each such calendar month period, a “Calculation Period”), Buyer shall prepare and deliver to Seller a written statement (a “Monthly Revenue Statement”) setting forth the amount of Revenue, if anyearlier event, of the Company Purchaser receiving evidence to its satisfaction that the Medical Products Agency in Sweden has issued a re-registration certificate ("the Re-registration Certificate") in respect of AlfaNative, the Purchaser will allot and issue to the Vendors (or their beneficiaries), credited as fully paid, such number of ordinary shares in the capital of the Purchaser which cumulatively equate to 10% of the issued share capital of the Purchaser on a fully diluted basis at the Completion Date (which for the applicable Calculation Period (the “Monthly Revenue Amount”), together with reasonably detailed back-up information with respect to the calculation avoidance of such amount. Buyer shall, concurrently with its delivery doubt shall be inclusive of the Monthly Revenue Statement, pay to Seller an amount equal to the product maximum number of 0.06 multiplied by the Monthly Revenue Amount (such resulting amount, the “Preliminary Monthly Deferred Consideration”). If the Preliminary Monthly Deferred Consideration is not paid within such fifteen (15) calendar period, any such unpaid amount shall bear interest at a rate of 1% per month (or, as contemplated by Section 2.4(f), 10% per month) until paid.
(b) Following any determination pursuant to Section 2.4(c) that an adjustment to the Preliminary Monthly Deferred Consideration is necessary, then (1) if the Disputed Amount is a positive number, then Buyer shall pay to Seller, no later than five (5) calendar days following the date on Shares which the Final Monthly Revenue Amount is determined in accordance with Section 2.4(c) (such date, the “Final Monthly Revenue Determination Date”), an amount equal to the difference of (i) the product of (y) the Final Monthly Revenue Amount multiplied by (z) 0.06 minus (ii) the Preliminary Monthly Deferred Consideration (such resulting amount, the “Disputed Amount”), which is payable to Seller by means of a wire transfer of immediately available funds to an account designated in writing by Seller, and (2) if the Disputed Amount is a negative number, Seller shall pay such amount to Buyer within five (5) calendar days following the Final Monthly Revenue Determination Date. If the Disputed Amount is not paid within such five (5) calendar day period, any such unpaid amount shall bear interest at a rate of 1% per month (or, as contemplated by Section 2.4(f), 10% per month) until paid.
(c) Within thirty (30) calendar days after receipt by Seller of a Monthly Revenue Statement (the “Review Period”), Seller may deliver a written notice (an “Objection Notice”) to Buyer of any good faith dispute it has with respect to the preparation or content of such Monthly Revenue Statement (it being understood that any such dispute by Seller shall relate solely to Buyer’s calculation of the Monthly Revenue Amount). During such thirty (30) calendar day period, Buyer shall promptly deliver to Seller any materials reasonably requested by Seller in order to allow Seller to verify Buyer’s calculation of the Monthly Revenue Amount. The Objection Notice shall describe in reasonable detail the items contained in such Monthly Revenue Statement that Seller disputes and the basis for any such disputes. Any items other than those disputed in the Objection Notice or arising out of or related to items disputed in the Objection Notice shall be deemed to have been accepted by Seller. If Seller does not deliver an Objection Notice with respect to a Monthly Revenue Statement within the Review Period (or if, within the Review Period, Seller informs Buyer that it has no objection to the Monthly Revenue Statement), such Monthly Revenue Statement shall be final, conclusive and binding on the Parties, except in the case of intentional misrepresentation or fraud in the preparation or presentation of any such Monthly Revenue Statement. In the event that Seller delivers a timely Objection Notice, the Parties shall negotiate in good faith to resolve the disputes. If the Parties, notwithstanding such good faith effort, fail to resolve all such disputes within fifteen (15) calendar days after Buyer receives an Objection Notice, then at any time thereafter upon the request of either Party, the Parties shall jointly engage an independent, nationally-recognized accounting firm mutually agreed to by the Parties (the “Arbitration Firm”) to resolve such dispute. As promptly as practicable thereafter (and, in any event within fifteen (15) calendar days after the Arbitration Firm’s engagement), Seller shall submit any unresolved elements of its objection to the Arbitration Firm in writing (with a copy to Buyer), supported by any documents and arguments upon which it relies. As promptly as practicable thereafter (and, in any event, within fifteen (15) calendar days after Seller’s submission of such unresolved elements), Buyer shall submit its response to the Arbitration Firm (with a copy to Seller) supported by any documents and arguments upon which it relies. The Arbitration Firm shall render its determination within fifteen (15) calendar days after its receipt of Buyer’s response. The scope of the disputes to be resolved by the Arbitration Firm shall be limited to the unresolved items on the Objection Notice. The determination of the Arbitration Firm shall be conclusive and binding on the Parties. The Monthly Revenue Amount, as finally determined allotted pursuant to this Section 2.4(cAgreement) being 5,866,380 shares (such shares hereinafter referred to as the "First Deferred Consideration Shares").
4.2 At Completion or within 30 Business Days, wherever is the earlier event, of the Purchaser receiving evidence to its satisfaction that the Re-registration Certificate includes indications of a second line treatment for any disease, the Purchaser will allot and issue to the Vendors (or their beneficiaries), credited as fully paid, such number of ordinary shares in the capital of the Purchaser which cumulatively equate to 5% of the issued share capital of the Purchaser, on a fully diluted basis, at the Completion Date (which for a particular Calculation Period the avoidance of doubt shall be referred to herein as the “Final Monthly Revenue Amount” for such Calculation Period. The costs and expenses inclusive of the Arbitration Firm’s review shall maximum number of Consideration Shares which may be borne by Seller unless the Final Monthly Revenue Amount exceeds the Monthly Revenue Amount specified in the Monthly Revenue Statement by 5% or more, in which case such costs and expenses shall be borne by Buyer.
(d) Seller shall be entitled to receive payments allotted pursuant to this Section 2.4 until the aggregate amount of all Final Monthly Agreement ) being 2,933,190 shares (such shares hereinafter referred to as "Second Deferred Consideration paid Shares").
4.3 At Completion, or within 30 Business Days, whichever is the earlier event of the Purchaser receiving notification to Seller is equal its satisfaction, that the Mutual Recognition Procedures application has received the approval of the requisite national and EU regulatory authority for the use, sale and marketing of AlphaNative in certain countries which must include Germany, the Purchaser will allot and issue to $5,000,000 the Vendors (or their beneficiaries), credited as fully paid, such number of ordinary shares in the “Total Deferred Consideration”). At such pointcapital of the Purchaser as cumulatively equate to 15% of the issued share capital of the Purchaser on a fully diluted basis, Seller at the Completion Date (which for the avoidance of doubt shall no longer be entitled to receive any further payments inclusive of the maximum number of Consideration Shares which may be allotted pursuant to this Section 2.4. In addition, Buyer may, at any time and in its sole discretion, pay Agreement ) being 8,799,570 shares (such shares hereinafter referred to Seller an amount equal to (A) as the Total "Third Deferred Consideration minus (B) the aggregate amount of all Final Monthly Deferred Consideration paid to Seller as of the applicable date (such resulting amount, the “Payoff Amount”). Upon Seller’s receipt of the Payoff Amount, it shall no longer be entitled to receive any further payments pursuant to this Section 2.4.
(e) Except as set forth below, upon any (i) transfer, sale or assignment by Buyer of all or substantially all of the Company’s Software, (ii) transfer, sale or assignment by Buyer of all or substantially all of the assets of the Company or (iii) any Change of Control of the Company, Buyer shall pay to Seller the Payoff Amount and any Deferred Closing Amount that Buyer has not previously paid. Notwithstanding the foregoing sentence, Buyer shall be entitled to (without triggering any obligation to pay the Payoff Amount or any Deferred Closing Amount that Buyer has not previously paid) (A) enter into any of the transactions contemplated by the foregoing clauses (i)-(iii) with any Affiliate (so long as (x) such Affiliate assumes Buyer’s obligations under this Agreement and (y) any such transaction with an Affiliate is approved in advance by Seller, such approval not to be unreasonably withheld (an “Approved Transaction”)) and (B) license any of the Company’s Software in the ordinary course of business in connection with the operation of the Business by the Company and not with a view to permanently divest such Software so that it will no longer be part of the operation of the Business by the Company. For the avoidance of doubt, the transfer, sale, assignment or issuance of less than a majority of the equity interests of the Company or any Affiliate shall not trigger an obligation to pay the Payoff Amount or any Deferred Closing Amount that Buyer has not previously paid. Buyer hereby agrees that until such time as the Total Deferred Consideration is paid in full, Buyer shall cause the following legend to be included on each stock certificate representing shares of capital stock of the Company: Shares"The securities evidenced by this certificate are subject to the terms and conditions of that certain Stock Purchase Agreement by and between ISCO International, Inc. and TAA Group Inc., dated December 5, 2008, which contains certain restrictions on transfer of the securities evidenced by this certificate. The holder of this certificate takes the same and holds it subject to the terms and conditions of such Agreement, and any transfer in conflict therewith or in derogation thereof is void and of no legal force or effect or validity whatsoever."
(f) From and after a Material Payment Default, (i) the interest on past-due amounts shall be increased to 10% per month and (ii) Seller shall be entitled to exercise any and all legal remedies available to it in order to collect such past due amounts (plus the amount of interest thereon).
(g) Until such time as Buyer is no longer obligated to make payments to Seller pursuant to this Section 2.44.4 At Completion, Buyer shall not, without Seller’s consent, take any action that results in (i) avoiding amounts that would otherwise be payable to Seller pursuant to this Section 2.4, (ii) adversely affecting the monitoring or reporting of amounts payable under this Section 2.4, without a principal business objective other than the decrease within 30 Business Days of the amounts otherwise payable under this Section 2.4 or the adverse effect on the monitoring or reporting of amounts payable under this Section 2.4, as the case may be. An action will be deemed to have such a principal business objective if the projected financial results of such action are materially favorable to the Company without considering the avoidance of payments under this Section 2.4 or the adverse affect on the monitoring or reporting of amounts payable under this Section 2.4, as the case may be. Until such time as Buyer is no longer obligated to make payments to Seller pursuant to this Section 2.4, Buyer must not (A) operate or allow the Business to be operated in a manner that will, or is reasonably likely to, materially impair the ability of Buyer or its successors or assigns to make the payments provided for hereunder or (B) permit its assets to become subject to any lien, mortgage, security interest or pledge in favor of any Affiliates, officers or directors of Buyer.
(h) Once per calendar year until such time as Buyer is no longer obligated to make payments to Seller pursuant to this Section 2.4, Buyer shall, and shall cause the Company to, make available to Seller, upon reasonable request and during normal business hours, copies earlier of the books and records of Buyer and the Company for the sole purpose of determining the amounts payable pursuant Purchaser receiving notification to this Section 2.4 or otherwise under this Agreement.
(i) Buyer’s payment obligations hereunder shall be absoluteits satisfaction, and shall not be subject to set-off, reduction, withholding or deduction of any kind. If (i) Seller is entitled to any payments pursuant to this Section 2.4 and such payments are not paid when due and (ii) Seller successfully brings a legal action against Buyer in order to collect any such past-due amounts, then Buyer shall reimburse Seller for all legal fees incurred by Seller in connection with bringing such action.that:
Appears in 1 contract
Sources: Agreement for the Acquisition of Bionative Ab (Viragen Europe LTD)
Deferred Consideration. 7.1 In consideration for the transactions contemplated by this agreement, each Senior Manager severally agrees to the deferred payment of a proportion of the Initial Consideration to which he or she is otherwise entitled pursuant to this agreement, in accordance with this Clause 7.
7.2 Deferred Consideration Amount means, in respect of:
(a) No later than fifteen [***], an amount equal to 33% of [***] Post-Tax Consideration;
(15b) calendar days after [***], an amount equal to 25% of [***] Post-Tax Consideration;
(c) [***], an amount equal to 25% of [***] Post-Tax Consideration;
(d) [***], an amount equal to 25% of [***] Post-Tax Consideration;
(e) [***], an amount equal to 25% of [***] Post-Tax Consideration; and
(f) [***], an amount equal to 25% of [***] Post-Tax Considerations.
7.3 Subject to the end provisions of Clauses 7.7, and 7.9, each calendar month following Senior Manager hereby agrees that his or her Deferred Consideration Amount will be held back from his or her portion of the Closing Initial Consideration payable on Completion and applied by the Purchaser on his or her behalf to fund the issuance of new Etsy Shares to such Senior Manager at the prevailing Issue Price on the relevant Deferred Payment Date (beginning with the calendar month ending December 31, 2008Deferred Consideration Etsy Shares) (each such calendar month periodwith any fractional entitlement to a Deferred Consideration Etsy Share being cashed out) within 3 Business Days of the relevant Deferred Payment Date in the following proportions: First anniversary of Completion 33 1/3 %
7.4 If: (i) the Etsy Shares trade ex dividend at any point during the period for calculating the Issue Price, a “Calculation Period”)or subsequently, Buyer but before the date of issuance of the relevant Deferred Consideration Etsy Shares; and (ii) the Deferred Consideration Etsy Shares, when issued, will not be entitled to participate in the relevant dividend, then, in addition to issuing the relevant number of Deferred Consideration Etsy Shares, the Purchaser’s Parent shall prepare and deliver pay to Seller a written statement (a “Monthly Revenue Statement”) setting forth the relevant Senior Manager an amount in cash equal to the amount of Revenue, if any, of the Company for the applicable Calculation Period (the “Monthly Revenue Amount”), together with reasonably detailed back-up information dividend that would have been payable with respect to the calculation Deferred Consideration Etsy Shares issued to him or her, had they been entitled to participate in the relevant dividend.
7.5 The Deferred Consideration Etsy Shares issued in accordance with Clause 7.3 or Clause 7.8 shall be validly issued, fully paid and non-assessable, and free and clear of all Encumbrances (other than those arising under this agreement, applicable to securities laws or the Purchaser’s Parent’s Organizational Documents). The Deferred Consideration Etsy Shares delivered in accordance with Clause 7.3 or Clause 7.8 shall be freely transferable under U.S. federal securities laws or validly registered under U.S. federal securities laws, so as to permit transfer of the Deferred Consideration Etsy Shares on an unrestricted basis from the date of their issuance or delivery and will be issued without any legend or restriction on transfer.
7.6 If and when issued, the Deferred Consideration Etsy Shares shall rank pari passu with the existing Etsy Shares, including the right to receive all dividends declared with a record date on or after the their date of issue.
7.7 The parties agree and acknowledge that if at any time during the three years from Completion (the Determination Period) a Senior Manager becomes a Leaver for Cause, the Purchaser and the Purchaser’s Parent shall immediately and without notice, cease to have an obligation to pay, and the relevant Senior Manager shall cease to have a right to receive, any Deferred Consideration Amount payable to him or her pursuant to this agreement which accrues on or after at the date that such amount. Buyer Senior Manager becomes a Leaver for Cause.
7.8 The parties agree and acknowledge that if at any time during the Determination Period a Senior Manager becomes a Leaver for Good Reason, the Purchaser shall, concurrently with its delivery of the Monthly Revenue Statement, pay to Seller an amount equal to the product of 0.06 multiplied by the Monthly Revenue Amount (such resulting amount, the “Preliminary Monthly Deferred Consideration”). If the Preliminary Monthly Deferred Consideration is not paid within such fifteen (15) calendar period, any such unpaid amount shall bear interest at a rate of 1% per month (or, as contemplated by Section 2.4(f), 10% per month) until paid.
(b) Following any determination pursuant to Section 2.4(c) that an adjustment to the Preliminary Monthly Deferred Consideration is necessary, then (1) if the Disputed Amount is a positive number, then Buyer shall pay to Seller, no later than five (5) calendar days three Business Days following the date on which the Final Monthly Revenue Purchaser’s Parent receives notice that such Senior Manager is a Leaver for Good Reason (the Good Leaver Payment Date), procure that new Etsy Shares are issued to such Senior Manager (at the prevailing Issue Price on the Good Leaver Payment Date) equal in value to that part of the Deferred Consideration Amount is determined payable to such Senior Manager pursuant to this agreement that has not already been applied to fund the issuance of Deferred Consideration Etsy Shares in accordance with Section 2.4(c) (this Clause 7. Such issue shall be in full satisfaction and discharge of the payment obligations of the Purchaser in respect of the Deferred Consideration Amount payable to such date, the “Final Monthly Revenue Determination Date”), an amount equal Senior Manager pursuant to the difference of this agreement.
7.9 If (i) a Change of Control occurs in relation to the product of (y) the Final Monthly Revenue Amount multiplied by (z) 0.06 minus Purchaser’s Parent; or (ii) the Preliminary Monthly Deferred Consideration (such resulting amount, the “Disputed Amount”), which is payable to Seller by means of a wire transfer of immediately available funds to an account designated in writing by Seller, and (2) if the Disputed Amount is a negative number, Seller shall pay such amount to Buyer within five (5) calendar days following the Final Monthly Revenue Determination Date. If the Disputed Amount is not paid within such five (5) calendar day period, any such unpaid amount shall bear interest at a rate of 1% per month (or, as contemplated by Section 2.4(f), 10% per month) until paid.
(c) Within thirty (30) calendar days after receipt by Seller of a Monthly Revenue Statement (the “Review Period”), Seller may deliver a written notice (an “Objection Notice”) to Buyer of any good faith dispute it has with respect to the preparation or content of such Monthly Revenue Statement (it being understood that any such dispute by Seller shall relate solely to Buyer’s calculation of the Monthly Revenue Amount). During such thirty (30) calendar day period, Buyer shall promptly deliver to Seller any materials reasonably requested by Seller in order to allow Seller to verify Buyer’s calculation of the Monthly Revenue Amount. The Objection Notice shall describe in reasonable detail the items contained in such Monthly Revenue Statement that Seller disputes and the basis for any such disputes. Any items other than those disputed in the Objection Notice or arising out of or related to items disputed in the Objection Notice shall be deemed to have been accepted by Seller. If Seller does not deliver an Objection Notice with respect to a Monthly Revenue Statement within the Review Period (or if, within the Review Period, Seller informs Buyer that it has no objection to the Monthly Revenue Statement), such Monthly Revenue Statement shall be final, conclusive and binding on the Parties, except in the case of intentional misrepresentation or fraud in the preparation or presentation of any such Monthly Revenue Statement. In the event that Seller delivers a timely Objection Notice, the Parties shall negotiate in good faith to resolve the disputes. If the Parties, notwithstanding such good faith effort, fail to resolve all such disputes within fifteen (15) calendar days after Buyer receives an Objection Notice, then at any time thereafter upon the request of either Party, the Parties shall jointly engage an independent, nationally-recognized accounting firm mutually agreed to by the Parties (the “Arbitration Firm”) to resolve such dispute. As promptly as practicable thereafter (and, in any event within fifteen (15) calendar days after the Arbitration Firm’s engagement), Seller shall submit any unresolved elements of its objection to the Arbitration Firm in writing (with a copy to Buyer), supported by any documents and arguments upon which it relies. As promptly as practicable thereafter (and, in any event, within fifteen (15) calendar days after Seller’s submission of such unresolved elements), Buyer shall submit its response to the Arbitration Firm (with a copy to Seller) supported by any documents and arguments upon which it relies. The Arbitration Firm shall render its determination within fifteen (15) calendar days after its receipt of Buyer’s response. The scope of the disputes Etsy Shares cease to be resolved by the Arbitration Firm shall be limited admitted to the unresolved items trading on the Objection Notice. The determination of the Arbitration Firm shall be conclusive and binding on the Parties. The Monthly Revenue Amount, as finally determined pursuant to this Section 2.4(c), for a particular Calculation Period shall be referred to herein as the “Final Monthly Revenue Amount” for such Calculation Period. The costs and expenses of the Arbitration Firm’s review shall be borne by Seller unless the Final Monthly Revenue Amount exceeds the Monthly Revenue Amount specified in the Monthly Revenue Statement by 5% or more, in which case such costs and expenses shall be borne by Buyer.
(d) Seller shall be entitled to receive payments pursuant to this Section 2.4 until the aggregate amount of all Final Monthly Deferred Consideration paid to Seller is equal to $5,000,000 (the “Total Deferred Consideration”). At such point, Seller shall no longer be entitled to receive any further payments pursuant to this Section 2.4. In addition, Buyer may, at any time and in its sole discretion, pay to Seller an amount equal to (A) the Total Deferred Consideration minus (B) the aggregate amount of all Final Monthly Deferred Consideration paid to Seller as of the applicable date (such resulting amount, the “Payoff Amount”). Upon Seller’s receipt of the Payoff Amount, it shall no longer be entitled to receive any further payments pursuant to this Section 2.4.
(e) Except as set forth below, upon any (i) transfer, sale or assignment by Buyer of all or substantially all of the Company’s Software, (ii) transfer, sale or assignment by Buyer of all or substantially all of the assets of the Company least one U.S. national securities exchange; or (iii) it is or becomes unlawful or impossible for any Change reason for the Deferred Consideration Etsy Shares to be issued in accordance with this Clause 7; (iv) the Deferred Consideration Etsy Shares to be issued on the applicable Deferred Payment Date would result in the aggregate Deferred Consideration Etsy Shares issuable under this Clause 7 to exceed 19.9% of Control Purchaser Parent's common stock outstanding (within the meaning of Section 5635 of the Company, Buyer shall pay Nasdaq listing rules) or otherwise cause the issuance to Seller violate the Payoff Amount and any Deferred Closing Amount that Buyer has not previously paid. Notwithstanding the foregoing sentence, Buyer shall be entitled to (without triggering any obligation to pay the Payoff Amount applicable listing rules of Nasdaq or any other exchange on which the shares of Purchaser Parent may then be listed; or (v) Deferred Closing Consideration Etsy Shares are required to be, but have not been, issued in accordance with this Clause 7, then, in relation to each Senior Manager, the Deferred Consideration Amount (to the extent not already applied to fund the issuance of Deferred Consideration Etsy Shares in accordance with this Clause 7) shall become immediately due and payable in cash.
7.10 The parties acknowledge and agree that Buyer has not previously paid) (A) enter into any the Deferred Consideration Amount is payable solely in consideration for the sale of the transactions contemplated by Senior Managers’ Shares in accordance with this agreement.
7.11 Each Senior Manager warrants that he or she: (i) is an accredited investor as defined in Rule 501(a) of Regulation D promulgated under the foregoing clauses Securities Act; (i)-(iiiii) is knowledgeable, sophisticated and experienced in making, and is qualified to make, decisions with respect to investments in securities including, to the extent applicable, the Deferred Consideration Etsy Shares; (iii) with any Affiliate (so long the assistance of such Senior Manager’s own professional advisors, to the extent that such Senior Manager has deemed appropriate, has made his or her own legal, tax, accounting and financial evaluation of the merits and risks of an investment in the Deferred Consideration Etsy Shares and has considered the suitability of the Deferred Consideration Etsy Shares as (x) an investment in light of his or her own circumstances and financial condition and such Affiliate assumes Buyer’s obligations under this Agreement and (y) any such transaction Senior Manager is able to bear the risks associated with an Affiliate is approved in advance by Seller, such approval not to be unreasonably withheld (an “Approved Transaction”)) and (B) license any of the Company’s Software investment in the ordinary course of business in connection with Deferred Consideration Etsy Shares; (iv) is acquiring, if and when issued, the operation of the Business by the Company Deferred Consideration Etsy Shares for his or her own account, not as a nominee or agent, for investment only, and not with a view to permanently divest the resale or distribution thereof, and with no present intention of selling, granting any participation in, or otherwise distributing any of such Software so shares; (v) does not presently have any contract, undertaking, agreement or arrangement with any person to sell, transfer, grant participations in or distribute to such person or to any third person such shares; and (vi) will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any such shares except in compliance with the Securities Act, applicable state securities laws and the respective rules and regulations promulgated thereunder. Each Senior Manager understands that it will no longer be part his or her acquisition of the operation of Deferred Consideration Etsy Shares, as applicable, will not be registered under the Business by the Company. For the avoidance of doubtSecurities Act, or registered or qualified under any state securities laws in reliance on specific exemptions therefrom, which exemptions depend upon, among other things, the transfer, sale, assignment or issuance bona fide nature of less than a majority such Senior Manager’s investment intent and accuracy of such Senior Manager’s representations as expressed herein. Each Senior Manager understands that the equity interests of the Company or any Affiliate shall not trigger an obligation to pay the Payoff Amount or any Deferred Closing Amount that Buyer has not previously paid. Buyer hereby agrees that until such time as the Total Deferred Consideration Etsy Shares are “restricted securities” under applicable U.S. federal and state securities laws and that, pursuant to these laws, and such Deferred Consideration Etsy Shares may not be resold without registration under the Securities Act and qualification by state authorities, or if an exemption from such registration and qualification requirements is paid in fullavailable.
7.12 This Clause 7 shall be binding on, Buyer shall cause the following legend to be included on each stock certificate representing shares of capital stock of the Company: "The securities evidenced by this certificate are subject and enure to the terms benefit of, the parties to this agreement and conditions of that certain Stock Purchase Agreement by their respective personal representatives, successors and between ISCO International, Inc. and TAA Group Inc., dated December 5, 2008, which contains certain restrictions on transfer of the securities evidenced by this certificate. The holder of this certificate takes the same and holds it subject to the terms and conditions of such Agreementpermitted assigns, and any transfer in conflict therewith or in derogation thereof is void and of no legal force or effect or validity whatsoever."
(f) From and after a Material Payment Default, (i) the interest on past-due amounts shall be increased to 10% per month and (ii) Seller shall be entitled to exercise any and all legal remedies available to it in order to collect such past due amounts (plus the amount of interest thereon).
(g) Until such time as Buyer is no longer obligated to make payments to Seller pursuant to this Section 2.4, Buyer shall not, without Seller’s consent, take any action that results in (i) avoiding amounts that would otherwise be payable to Seller pursuant to this Section 2.4, (ii) adversely affecting the monitoring or reporting of amounts payable under this Section 2.4, without a principal business objective other than the decrease of the amounts otherwise payable under this Section 2.4 or the adverse effect on the monitoring or reporting of amounts payable under this Section 2.4, as the case may be. An action will be deemed to have such a principal business objective if the projected financial results of such action are materially favorable to the Company without considering the avoidance of payments under this Section 2.4 or the adverse affect on the monitoring or reporting of amounts payable under this Section 2.4, as the case may be. Until such time as Buyer is no longer obligated to make payments to Seller pursuant to this Section 2.4, Buyer must not (A) operate or allow the Business to be operated in a manner that will, or is reasonably likely to, materially impair the ability of Buyer or its successors or assigns to make the payments provided for hereunder or (B) permit its assets to become subject references to any lienparty shall include that party’s personal representatives, mortgage, security interest or pledge in favor of any Affiliates, officers or directors of Buyersuccessors and permitted assigns.
(h) Once per calendar year until such time as Buyer is no longer obligated to make payments to Seller pursuant to this Section 2.4, Buyer shall, and shall cause the Company to, make available to Seller, upon reasonable request and during normal business hours, copies of the books and records of Buyer and the Company for the sole purpose of determining the amounts payable pursuant to this Section 2.4 or otherwise under this Agreement.
(i) Buyer’s payment obligations hereunder shall be absolute, and shall not be subject to set-off, reduction, withholding or deduction of any kind. If (i) Seller is entitled to any payments pursuant to this Section 2.4 and such payments are not paid when due and (ii) Seller successfully brings a legal action against Buyer in order to collect any such past-due amounts, then Buyer shall reimburse Seller for all legal fees incurred by Seller in connection with bringing such action.
Appears in 1 contract
Sources: Exhibit (Etsy Inc)
Deferred Consideration. (a1) No later than fifteen As further consideration for the sale of Shares the Purchaser shall (15subject to the terms of this agreement) calendar days after pay to the Sellers such sums (if any) as shall be payable pursuant to subclauses 4(6), 4(7) and 4(8).
(2) Within 3 months of the end of each calendar month following the Closing (beginning with relevant period the calendar month ending December 31, 2008) (each such calendar month period, a “Calculation Period”), Buyer Purchaser shall prepare and instruct the Accountants to audit the 1999 Accounts, the 2000 Accounts and the 2001 Accounts and to deliver to Seller a written statement (a “Monthly Revenue Statement”) setting forth the amount of Revenue, if any, of the Company for the applicable Calculation Period (the “Monthly Revenue Amount”)copy, together with reasonably detailed back-up information with respect a draft of the 1999 EBIT, 2000 EBIT or 2001 EBIT Statement (as the case may be) to the calculation of such amount. Buyer shall, concurrently with its delivery of Purchaser and the Monthly Revenue Statement, pay to Seller an amount equal to the product of 0.06 multiplied by the Monthly Revenue Amount (such resulting amount, the “Preliminary Monthly Deferred Consideration”). If the Preliminary Monthly Deferred Consideration is not paid within such fifteen (15) calendar period, any such unpaid amount shall bear interest at a rate of 1% per month (or, as contemplated by Section 2.4(f), 10% per month) until paidSellers.
(b3) Following Within 30 days of delivery of each draft EBIT Statement the Sellers shall notify the Purchaser in writing of any determination pursuant item or items they wish to Section 2.4(c) that an adjustment to the Preliminary Monthly Deferred Consideration is necessarydispute, then (1) if the Disputed Amount is a positive number, then Buyer shall pay to Seller, no later than five (5) calendar days following the date on failing which the Final Monthly Revenue Amount is determined in accordance with Section 2.4(c) (such date, the “Final Monthly Revenue Determination Date”), an amount equal to the difference of (i) the product of (y) the Final Monthly Revenue Amount multiplied by (z) 0.06 minus (ii) the Preliminary Monthly Deferred Consideration (such resulting amount, the “Disputed Amount”), which is payable to Seller by means of a wire transfer of immediately available funds to an account designated in writing by Seller, and (2) if the Disputed Amount is a negative number, Seller shall pay such amount to Buyer within five (5) calendar days following the Final Monthly Revenue Determination Date. If the Disputed Amount is not paid within such five (5) calendar day period, any such unpaid amount shall bear interest at a rate of 1% per month (or, as contemplated by Section 2.4(f), 10% per month) until paid.
(c) Within thirty (30) calendar days after receipt by Seller of a Monthly Revenue relevant draft EBIT Statement (the “Review Period”), Seller may deliver a written notice (an “Objection Notice”) to Buyer of any good faith dispute it has with respect to the preparation or content of such Monthly Revenue Statement (it being understood that any such dispute by Seller shall relate solely to Buyer’s calculation of the Monthly Revenue Amount). During such thirty (30) calendar day period, Buyer shall promptly deliver to Seller any materials reasonably requested by Seller in order to allow Seller to verify Buyer’s calculation of the Monthly Revenue Amount. The Objection Notice shall describe in reasonable detail the items contained in such Monthly Revenue Statement that Seller disputes and the basis for any such disputes. Any items other than those disputed in the Objection Notice or arising out of or related to items disputed in the Objection Notice shall be deemed to have been accepted accepted. All costs incurred by Seller. If Seller does not deliver an Objection Notice with respect to a Monthly Revenue Statement within the Review Period (or if, within the Review Period, Seller informs Buyer that it has no objection to the Monthly Revenue Statement), such Monthly Revenue Statement shall be final, conclusive and binding on the Parties, except in the case of intentional misrepresentation or fraud Accountants in the preparation or presentation of any such Monthly Revenue Statement. In the event that Seller delivers a timely Objection Notice1999 EBIT, the Parties shall negotiate in good faith to resolve 2000 EBIT and the disputes. If the Parties, notwithstanding such good faith effort, fail to resolve all such disputes within fifteen (15) calendar days after Buyer receives an Objection Notice, then at any time thereafter upon the request of either Party, the Parties shall jointly engage an independent, nationally-recognized accounting firm mutually agreed to by the Parties (the “Arbitration Firm”) to resolve such dispute. As promptly as practicable thereafter (and, in any event within fifteen (15) calendar days after the Arbitration Firm’s engagement), Seller shall submit any unresolved elements of its objection to the Arbitration Firm in writing (with a copy to Buyer), supported by any documents and arguments upon which it relies. As promptly as practicable thereafter (and, in any event, within fifteen (15) calendar days after Seller’s submission of such unresolved elements), Buyer shall submit its response to the Arbitration Firm (with a copy to Seller) supported by any documents and arguments upon which it relies. The Arbitration Firm shall render its determination within fifteen (15) calendar days after its receipt of Buyer’s response. The scope of the disputes to be resolved by the Arbitration Firm shall be limited to the unresolved items on the Objection Notice. The determination of the Arbitration Firm shall be conclusive and binding on the Parties. The Monthly Revenue Amount, as finally determined pursuant to this Section 2.4(c), for a particular Calculation Period shall be referred to herein as the “Final Monthly Revenue Amount” for such Calculation Period. The costs and expenses of the Arbitration Firm’s review 2001 EBIT Statements shall be borne by Seller unless the Final Monthly Revenue Amount Company.
(4) If the item or items disputed in accordance with subclause 4(3) are not agreed in writing between the Sellers and the Purchaser within 45 days of delivery in accordance with subclause 4(2) above the item or items in dispute shall be determined by:
(a) such firm of accountants as the parties shall agree in writing; or
(b) failing agreement of the identity of the firm of accountants within a further 10 days from the expiry of the period of 45 days referred to above, such firm of internationally reputable accountants as may be appointed for this purpose on the application of any party to this agreement by the Arbitration Board of the Finnish Central Chamber of Commerce.
(5) The accountants appointed under subclause 4(4) above (the "Independent Accountants") shall act on the following basis:
(a) their terms of reference shall be to determine an amount which in their opinion represents the item or items in dispute, as notified to them in writing by either the Sellers or the Purchaser within 10 days of their appointment and confirm the EBIT Statement following such determination which shall be final and binding between the parties;
(b) the Sellers and the Purchaser shall each provide the Independent Accountants with all information which they reasonably require and the Independent Accountants shall be entitled (to the extent they consider it appropriate) to base their opinion on such information and on the accounting and other records of the Company;
(c) the determination of the Accountants shall (in the absence of manifest error) be conclusive and final without recourse to arbitration; and
(d) their costs shall be borne by the Company.
(6) On determination of the 1999 EBIT the Purchaser shall pay to the Sellers, as further consideration for the sale of the Shares, a sum (which may be nil) which shall be calculated as follows (the "1999 Payment"): [OBJECT OMITTED]
(7) On determination of the 2000 EBIT the Purchaser shall pay to the Sellers, as further consideration for the sale of the Shares, a sum (which may be nil) which shall be calculated as follows (the "2000 Payment"): [OBJECT OMITTED]
(8) On determination of the 2001 EBIT the Purchaser shall pay to the Sellers, as further consideration for the sale of the Shares, a sum (which may be nil) which shall be calculated as follows (the "2001 Payment"): [OBJECT OMITTED]
(9) The 1999 Payment, the 2000 Payment and the 2001 Payment shall be made by the Purchaser to the Sellers within one month of the relevant EBIT Statement being finally determined in accordance with sub-clauses 4(3), 4(4) and 4(5).
(10) Subject to the terms of clause 5, the Purchaser may deduct from any amount of Additional Cash Consideration due and payable any sum due to it in respect of any breach of the obligations, Warranties and undertakings on the part of the Sellers in this agreement. If the amount claimed exceeds the Monthly Revenue Amount specified amount of Additional Cash Consideration deposited in the Monthly Revenue Statement Escrow Account at that date, the Purchaser may deduct the balance from any amount of Deferred Consideration due and payable or which becomes due and payable.
(11) The Sellers shall be entitled to the Deferred Consideration (if any) in the proportions shown in column E of Schedule 1.
(12) In the period from Completion to 31st August, 2001:
(a) the Purchaser shall not require that the Company buys products manufactured or distributed by 5% the Purchaser's Group unless such products are competitive in terms of price, quality and delivery time with similar products manufactured or moredistributed by third party suppliers, in which case the Company may be required to purchase the product manufactured or distributed by the Purchaser's Group unless a customer of the Company specifies otherwise;
(b) subject to the restrictions in subclause 4(12)(a) above, the Purchaser shall not restrict the Company from purchasing products and services from suppliers which are not members of the Purchaser's Group;
(c) any decision concerning:
(i) the price of goods or services sold to members of the Purchaser's Group;
(ii) the employment of new personnel the aggregate annual costs of which is in excess of FIM 500,000;
(iii) the appointment of a new Managing director;
(iv) individual investments exceeding FIM 100,000;
(v) changing the nature of or relocating the business as it is currently carried on;
(vi) division of the Company or its business; and
(vii) changing the bookkeeper of the Company, shall require the approval of both the Purchaser's representatives and at least one of the Seller's representatives on the board of directors of the Company, each such costs representative having been appointed in accordance with subclause 4(12)(g), it being acknowledged and expenses agreed by the Sellers that they shall be borne by Buyer.not act unreasonably in obstructing the Purchaser's management of the Company;
(d) Seller the Purchaser shall be entitled to receive payments pursuant to this Section 2.4 until not cease or assign the aggregate amount of all Final Monthly Deferred Consideration paid to Seller is equal to $5,000,000 (business currently carried on by the “Total Deferred Consideration”). At such point, Seller shall no longer be entitled to receive Company or any further payments pursuant to this Section 2.4. In addition, Buyer may, at any time and in its sole discretion, pay to Seller an amount equal to (A) part thereof without the Total Deferred Consideration minus (B) the aggregate amount of all Final Monthly Deferred Consideration paid to Seller as prior consent of the applicable date (Sellers, such resulting amountconsent not to be unreasonably withheld, and the “Payoff Amount”). Upon Seller’s receipt Purchaser shall not reduce the operations of the Payoff Amountbusiness currently carried on by the Company, it shall no longer be entitled except in response to receive any further payments pursuant to this Section 2.4.a decline in production requirements caused by market conditions;
(e) Except as set forth below, upon any (i) transfer, sale or assignment by Buyer of all or substantially all of The Purchaser shall not restrict the Company’s Software, (ii) transfer, sale or assignment by Buyer of all or substantially all of the assets Company from selling to customers of the Company as at the Completion Date or (iii) new customers in Finland and Norway on terms and conditions consistent with past practice, including the use of any Change of Control trade or business name currently used by the Company. The Company shall also be permitted to sell its products to new customers in Sweden, having first consulted with ▇▇▇▇▇▇▇ Hydraulik Svenska AB and, if no agreement is reached with ▇▇▇▇▇▇▇ Hydraulik Svenska AB, subject to the approval of the Company, Buyer Guarantor. The Purchaser shall pay to Seller not and the Payoff Amount and any Deferred Closing Amount Guarantor shall procure that Buyer has not previously paid. Notwithstanding the foregoing sentence, Buyer shall be entitled to (without triggering any obligation to pay the Payoff Amount or any Deferred Closing Amount that Buyer has not previously paid) (A) enter into any members of the transactions contemplated by the foregoing clauses (i)-(iii) with any Affiliate (so long as (x) such Affiliate assumes Buyer’s obligations under this Agreement and (y) any such transaction with an Affiliate is approved Purchaser's Group do not establish competing organisations in advance by SellerNorway or Finland, such approval not to be unreasonably withheld (an “Approved Transaction”)) and (B) license any it being agreed that members of the Company’s Software in the ordinary course of Purchaser's Group may continue to do business in connection with Norway or Finland on the operation same basis as business is carried on at Completion. The Purchaser represents and warrants to the Sellers that existing distribution agreements in Finland and Norway are not in respect of the Business products similar to those currently produced by the Company and the Company will not with a view be liable to permanently divest pay any costs pursuant to such Software so that it distribution agreements nor will no longer be part of the operation of the Business by the Company. For the avoidance of doubt, the transfer, sale, assignment or issuance of less than a majority of the equity interests business of the Company be restricted in Finland or Norway following Completion for any Affiliate shall not trigger an obligation to pay the Payoff Amount or any Deferred Closing Amount that Buyer has not previously paid. Buyer hereby agrees that until such time as the Total Deferred Consideration is paid in full, Buyer shall cause the following legend to be included on each stock certificate representing shares of capital stock of the Company: "The securities evidenced by this certificate are subject reason due to the terms and conditions of that certain Stock Purchase Agreement by and between ISCO International, Inc. and TAA Group Inc., dated December 5, 2008, which contains certain restrictions on transfer of the securities evidenced by this certificate. The holder of this certificate takes the same and holds it subject to the terms and conditions of such Agreement, and any transfer in conflict therewith or in derogation thereof is void and of no legal force or effect or validity whatsoever."aforementioned distribution agreements;
(f) From the Purchaser shall not restrict the Company from borrowing money from its bankers for working capital and after a Material Payment Default, capital expansion purposes as set out in the business plan approved by the board of directors of the Company (i) the interest on past-due amounts provided that such loans shall be increased without recourse to 10% per month and (ii) Seller shall be entitled to exercise any and all legal remedies available to it in order to collect such past due amounts (plus the amount Purchaser or members of interest thereonthe Purchaser's Group).;
(g) Until such time as Buyer is no longer obligated to make payments to Seller pursuant to this Section 2.4, Buyer shall not, without Seller’s consent, take any action that results in (i) avoiding amounts that would otherwise be payable to Seller pursuant to this Section 2.4, (ii) adversely affecting the monitoring or reporting board of amounts payable under this Section 2.4, without a principal business objective other than the decrease directors of the amounts otherwise payable under this Section 2.4 or Company shall consist of four members, two of whom shall be nominated by each of the adverse effect on Purchaser (Anders C H Brag and ▇▇▇▇▇ ▇ ▇▇▇▇) and the monitoring or reporting of amounts payable under this Section 2.4, as the case may be. An action will be deemed to have such a principal business objective if the projected financial results of such action are materially favorable to the Company without considering the avoidance of payments under this Section 2.4 or the adverse affect on the monitoring or reporting of amounts payable under this Section 2.4, as the case may be. Until such time as Buyer is no longer obligated to make payments to Seller pursuant to this Section 2.4, Buyer must not (A) operate or allow the Business to be operated in a manner that will, or is reasonably likely to, materially impair the ability of Buyer or its successors or assigns to make the payments provided for hereunder or (B) permit its assets to become subject to any lien, mortgage, security interest or pledge in favor of any Affiliates, officers or directors of Buyer.Sellers respectively;
(h) Once per calendar year until such time as Buyer is no longer obligated to make payments to Seller pursuant to this Section 2.4, Buyer shall, and the Purchaser shall cause nominate the Company to, make available to Seller, upon reasonable request and during normal business hours, copies chairman of the books and records board of Buyer and directors (Anders C H Brag), the Company for the sole purpose of determining the amounts payable pursuant chairman to this Section 2.4 or otherwise under this Agreement.have a casting vote; and
(i) Buyer’s payment obligations hereunder board meetings of the Company shall be absoluteheld once each calendar year at Tampere, and shall not if held more than once each calendar year, at a venue to be subject to set-off, reduction, withholding or deduction of any kind. If (i) Seller is entitled to any payments pursuant to this Section 2.4 and such payments are not paid when due and (ii) Seller successfully brings a legal action against Buyer in order to collect any such past-due amounts, then Buyer shall reimburse Seller for all legal fees incurred by Seller in connection with bringing such actionagreed.
Appears in 1 contract
Sources: Share Purchase Agreement (Denison International PLC)
Deferred Consideration. (a) No later than fifteen Within ninety (1590) calendar days after the end first anniversary of each calendar month following the Closing (beginning with Closing, the calendar month ending December 31, 2008) (each such calendar month period, a “Calculation Period”), Buyer Purchaser shall prepare and deliver delivery to Seller a written statement (a “Monthly Revenue Statement”) setting forth the amount of Revenue, if any, Owner the Purchaser’s calculation of the Company for the applicable Calculation Period (the “Monthly Revenue Amount”), together with reasonably detailed back-up information with respect to the calculation of such amount. Buyer shall, concurrently with its delivery of the Monthly Revenue Statement, pay to Seller an amount equal to the product of 0.06 multiplied by the Monthly Revenue Amount (such resulting amount, the “Preliminary Monthly Deferred Consideration”). If the Preliminary Monthly Deferred Consideration is not paid within such fifteen (15) calendar period, any such unpaid amount shall bear interest at a rate of 1% per month (or, as contemplated by Section 2.4(f), 10% per month) until paid.First Anniversary Medicare
(b) Following any determination pursuant to Section 2.4(c) that an adjustment to the Preliminary Monthly Deferred Consideration is necessary, then (1) if the Disputed Amount is a positive number, then Buyer shall pay to Seller, no later than five (5) calendar days following the date on which the Final Monthly Revenue Amount is determined in accordance with Section 2.4(c) (such date, the “Final Monthly Revenue Determination Date”), an amount equal to the difference of (i) the product of (y) the Final Monthly Revenue Amount multiplied by (z) 0.06 minus (ii) the Preliminary Monthly Deferred Consideration (such resulting amount, the “Disputed Amount”), which is payable to Seller by means of a wire transfer of immediately available funds to an account designated in writing by Seller, and (2) if the Disputed Amount is a negative number, Seller shall pay such amount to Buyer within five (5) calendar days following the Final Monthly Revenue Determination Date. If the Disputed Amount is not paid within such five (5) calendar day period, any such unpaid amount shall bear interest at a rate of 1% per month (or, as contemplated by Section 2.4(f), 10% per month) until paid.
(c) Within thirty (30) calendar days after receipt by Seller of a Monthly the final determination of the First Anniversary Medicare Advantage Revenue Statement pursuant to Section 1.10(a), in the event that the First Anniversary Medicare Advantage Revenue equals or exceeds the Baseline Medicare Advantage Revenue the Purchaser or Holdings shall pay fourteen million U.S. Dollars ($14,000,000) in cash (the “Review Period”), Seller may deliver a written notice (an “Objection NoticeDeferred Consideration”) to Buyer of any good faith dispute it has with respect to the preparation or content of such Monthly Revenue Statement Sellers (it being understood that any such dispute by Seller shall relate solely to Buyer’s calculation in the same proportions as the Closing Cash Payment was paid).
(c) The payment of the Monthly Revenue Amount). During such thirty Deferred Consideration is subject to (30i) calendar day period, Buyer shall promptly deliver to Seller any materials reasonably requested by Seller the Owner’s continued employment in order to allow Seller to verify Buyer’s calculation good standing at the Purchaser on the first anniversary of the Monthly Revenue Amount. The Objection Notice shall describe in reasonable detail the items Closing Date, (ii) each Seller Parties’ continued compliance with all restrictive covenants contained in such Monthly Revenue Statement each of the Transaction Documents, and (iii) the Owner’s execution and continued compliance with that Seller disputes and certain Compliance Attestation, attached hereto as Exhibit D. The foregoing notwithstanding, if the basis for any such disputes. Any items other than those disputed Owner’s employment is terminated by the Purchaser without Cause (as defined in the Objection Notice Owner’s Employment Agreement) or arising out of or related to items disputed with Good Reason by the Owner (as defined in the Objection Notice Owner’s Employment Agreement), the Owner shall be have been deemed to have been accepted by Seller. If Seller does not deliver an Objection Notice with respect to a Monthly Revenue Statement within satisfy the Review Period (or if, within the Review Period, Seller informs Buyer that it has no objection to the Monthly Revenue Statementrequirements of Section 1.10(d), such Monthly Revenue Statement shall be final, conclusive and binding on the Parties, except in the case of intentional misrepresentation or fraud in the preparation or presentation of any such Monthly Revenue Statement. In the event that Seller delivers a timely Objection Notice, the Parties shall negotiate in good faith to resolve the disputes. If the Parties, notwithstanding such good faith effort, fail to resolve all such disputes within fifteen (15) calendar days after Buyer receives an Objection Notice, then at any time thereafter upon the request of either Party, the Parties shall jointly engage an independent, nationally-recognized accounting firm mutually agreed to by the Parties (the “Arbitration Firm”) to resolve such dispute. As promptly as practicable thereafter (and, in any event within fifteen (15) calendar days after the Arbitration Firm’s engagement), Seller shall submit any unresolved elements of its objection to the Arbitration Firm in writing (with a copy to Buyer), supported by any documents and arguments upon which it relies. As promptly as practicable thereafter (and, in any event, within fifteen (15) calendar days after Seller’s submission of such unresolved elements), Buyer shall submit its response to the Arbitration Firm (with a copy to Seller) supported by any documents and arguments upon which it relies. The Arbitration Firm shall render its determination within fifteen (15) calendar days after its receipt of Buyer’s response. The scope of the disputes to be resolved by the Arbitration Firm shall be limited to the unresolved items on the Objection Notice. The determination of the Arbitration Firm shall be conclusive and binding on the Parties. The Monthly Revenue Amount, as finally determined pursuant to this Section 2.4(c), for a particular Calculation Period shall be referred to herein as the “Final Monthly Revenue Amount” for such Calculation Period. The costs and expenses of the Arbitration Firm’s review shall be borne by Seller unless the Final Monthly Revenue Amount exceeds the Monthly Revenue Amount specified in the Monthly Revenue Statement by 5% or more, in which case such costs and expenses shall be borne by Buyer.
(d) Seller Notwithstanding anything in this Agreement to the contrary, the Purchaser shall be entitled to receive not make any payments pursuant to this Section 2.4 until in respect of the aggregate amount of all Final Monthly Deferred Consideration paid that the Purchaser is otherwise required to Seller make, and the Purchaser may defer such payments if there exists and is equal to $5,000,000 (the “Total Deferred Consideration”). At such pointcontinuing a default or an event of default under any credit agreement, Seller shall no longer be entitled to receive any further payments pursuant to this Section 2.4. In addition, Buyer may, at any time and in its sole discretion, pay to Seller an amount equal to (A) the Total Deferred Consideration minus (B) the aggregate amount of all Final Monthly Deferred Consideration paid to Seller guarantee or other agreement existing as of the applicable date (such resulting amount, the “Payoff Amount”). Upon Seller’s receipt Closing Date under which Purchaser or any of its subsidiaries has borrowed money as of the Payoff AmountClosing Date (each, it a “Debt Agreement”) or if such payment would constitute a breach of, or result in a default or an event of default (with or without the giving of notice or passage of time or both) on the part of the Purchaser or any of its subsidiaries under any such Debt Agreement or would not be permitted under any applicable laws. If Purchaser is unable to make any payments in accordance with the preceding sentence, Purchaser shall no longer be entitled to receive any further payments pursuant to this Section 2.4.make
(e) Except as set forth belowDuring the period commencing on the date hereof and ending on the first anniversary of the Closing Date, upon any the Purchaser (i) transfer, sale or assignment by Buyer shall not change the methods of all or substantially all accounting for the Medicare Advantage Revenue in a manner that would adversely affect the calculation of the Company’s SoftwareMedicare Advantage Revenue, (ii) transfer, sale or assignment by Buyer of all or substantially all shall maintain segregated financial records of the assets of the Company or Medicare Advantage Revenue, and (iii) any Change of Control of the Company, Buyer shall pay to Seller the Payoff Amount and any Deferred Closing Amount that Buyer has not previously paid. Notwithstanding the foregoing sentence, Buyer shall be entitled to (without triggering any obligation to pay the Payoff Amount or any Deferred Closing Amount that Buyer has not previously paid) (A) enter into any of the transactions contemplated by the foregoing clauses (i)-(iii) with any Affiliate (so long as (x) such Affiliate assumes Buyer’s obligations under this Agreement and (y) any such transaction with an Affiliate is approved in advance by Seller, such approval not to be unreasonably withheld (an “Approved Transaction”)) and (B) license any of the Company’s Software in the ordinary course of business in connection with the operation of the Business by the Company and not with a view to permanently divest such Software so that it will no longer be part of the operation of the Business by the Company. For the avoidance of doubt, the transfer, sale, assignment or issuance of less than a majority of the equity interests of the Company or any Affiliate shall not trigger an obligation to pay the Payoff Amount or any Deferred Closing Amount that Buyer has not previously paid. Buyer hereby agrees that until such time as the Total Deferred Consideration is paid in full, Buyer shall cause the following legend to be included on each stock certificate representing shares of capital stock of the Company: "The securities evidenced by this certificate are subject to the terms and conditions of that certain Stock Purchase Agreement by and between ISCO International, Inc. and TAA Group Inc., dated December 5, 2008, which contains certain restrictions on transfer of the securities evidenced by this certificate. The holder of this certificate takes the same and holds it subject to the terms and conditions of such Agreement, and any transfer in conflict therewith or in derogation thereof is void and of no legal force or effect or validity whatsoever."
(f) From and after a Material Payment Default, (i) the interest on past-due amounts shall be increased to 10% per month and (ii) Seller shall be entitled to exercise any and all legal remedies available to it in order to collect such past due amounts (plus the amount of interest thereon).
(g) Until such time as Buyer is no longer obligated to make payments to Seller pursuant to this Section 2.4, Buyer shall not, without Seller’s consent, take any action or omission that results in (i) avoiding amounts that would otherwise be payable to Seller pursuant to this Section 2.4, (ii) adversely affecting the monitoring or reporting of amounts payable under this Section 2.4, without a principal business objective other than the decrease of the amounts otherwise payable under this Section 2.4 or the adverse effect on the monitoring or reporting of amounts payable under this Section 2.4, as the case may be. An action will be deemed to have such a principal business objective if the projected financial results of such action are materially favorable to the Company without considering the avoidance of payments under this Section 2.4 or the adverse affect on the monitoring or reporting of amounts payable under this Section 2.4, as the case may be. Until such time as Buyer is no longer obligated to make payments to Seller pursuant to this Section 2.4, Buyer must not (A) operate or allow the Business to be operated in a manner that will, or is reasonably likely to, materially impair the ability of Buyer or its successors or assigns to make the payments provided for hereunder or (B) permit its assets to become subject to any lien, mortgage, security interest or pledge in favor of any Affiliates, officers or directors of Buyer.
(h) Once per calendar year until such time as Buyer is no longer obligated to make payments to Seller pursuant to this Section 2.4, Buyer shall, and shall cause the Company to, make available to Seller, upon reasonable request and during normal business hours, copies of the books and records of Buyer and the Company for affects Medicare Advantage Revenue with the sole purpose of determining avoiding the amounts payable pursuant to this Section 2.4 or otherwise under this Agreementpayment of the Deferred Consideration.
(i) Buyer’s payment obligations hereunder shall be absolute, and shall not be subject to set-off, reduction, withholding or deduction of any kind. If (i) Seller is entitled to any payments pursuant to this Section 2.4 and such payments are not paid when due and (ii) Seller successfully brings a legal action against Buyer in order to collect any such past-due amounts, then Buyer shall reimburse Seller for all legal fees incurred by Seller in connection with bringing such action.
Appears in 1 contract
Deferred Consideration. 5.1 As further consideration for the sale of the Shares, the Purchaser shall, subject to the terms of this Agreement, pay to the Vendors a sum (the "Deferred Consideration"), which shall be apportioned between the Vendors as shown in Column 5 of Schedule 1, calculated according to the Net Profits as follows:
(a) No later if the Net Profits are equal to or exceed (pound)1,300,000, a sum equal to (pound)2,500,000 plus (pound)1 for each (pound)500,000 of Net Profits over (pound)1,300,000;
(b) if the Net Profits are less than fifteen (15) calendar days after the end of each calendar month following the Closing (beginning pound)1,300,000, no Deferred Consideration shall be paid.
5.2 The Net Profits shall be ascertained in accordance with the calendar month provisions of Schedule 7 and subject always to clauses 5.5 and 5.7.
5.3 Within 10 Business Days of the Net Profits being so ascertained, the Purchaser shall satisfy the Deferred Consideration by the issue of a number of shares of $0.01 each in the Purchaser's common stock equal to (pound)2,500,000 divided by the average Volume Weighted Average Price of the Purchaser's common stock for the 10 days preceding the second anniversary of Completion. The exchange rate to be used when calculating the relevant number of shares shall be the spot rate published in the Financial Times on the last Business Day prior to the second anniversary of Completion.
5.4 The Vendors and the Purchaser hereby acknowledge, undertake and declare that, having regard to the interests of the Primary Warrantors throughout the period commencing on Completion and ending December 31, 2008on the second anniversary of the Completion Date (the "Agreed Period") (each such calendar month period, a “Calculation Period”), Buyer shall prepare and deliver to Seller a written statement (a “Monthly Revenue Statement”) setting forth the amount of Revenue, if any, objective of the Company is to maximise its profitability consistent with sound commercial and financial management and to promote the orderly and profitable development of its business.
5.5 The Purchaser agrees and undertakes that throughout the Agreed Period, unless otherwise agreed with the Primary Warrantors in writing, it will:
(a) not require the Company to enter into any artificial or other transaction not being in the normal or prudent course of business as conducted at the date hereof the purpose or principal purpose of which is to reduce the net profits of the Company;
(b) save in so far as the Purchaser proposes to utilise the same in order to satisfy payment of the Deferred Consideration or any part thereof, not cause to be distributed by way of dividend or otherwise withdrawn from the Company, any of the profits or reserves of the Company;
(c) use all reasonable endeavours to ensure that the Company continues to trade save where any cessation of trade becomes necessary for reasons of insolvency;
(d) make no disposal of the whole or any material part of the assets or business of the Company;
(e) not permit trading or any form of inter-company charging or lending or borrowing between the Company on the one hand and the Purchaser or any other company on the other, save on a commercial basis and on arm's length terms;
(f) make no disposal of the beneficial ownership of the whole of the issued share capital (directly or indirectly) of the Company;
(g) not seek to move or relocate any of the existing employees or the Company;
(h) provide the Primary Warrantors with such regular financial and other information concerning the Company as they may reasonably request, having regard to their interests under this Agreement in so far as the same at any time no longer becomes available to them in their capacities as directors of the Company, if, in relation to paragraphs 5.5(a), 5.5(b), 5.5(d), 5.5(e), 5.5(f) and 5.5(g), any such thing would have a material adverse effect on the Net Profits.
5.6 The Primary Warrantors shall treat as strictly confidential all such information as is supplied to them under sub-clause 5.5(h) above and shall not disclose the same or allow the same to be disclosed to any other person except to their respective professional advisers and save to the extent that the same is already in the public domain.
5.7 The Purchaser may procure the Company to do any of the above things notwithstanding that they have or may have an adverse effect on the Net Profits if, before it does so, it confirms in writing to the Primary Warrantors that, for the applicable Calculation Period (purposes of calculating the “Monthly Revenue Amount”)Net Profits, together with reasonably detailed back-up information with an appropriate allowance or adjustment will be made in respect of the thing in question, so that the Vendors' entitlement to the calculation of such amount. Buyer shall, concurrently with its delivery of the Monthly Revenue Statement, pay to Seller an amount equal to the product of 0.06 multiplied by the Monthly Revenue Amount (such resulting amount, the “Preliminary Monthly Deferred Consideration”). If the Preliminary Monthly Deferred Consideration is not paid within adversely affected by that thing. Any such fifteen allowance or adjustment shall be identified and quantified by the Purchaser in the draft Profit and Loss Account and shall be agreed or determined as provided in Schedule 7 (15) calendar period, any such unpaid amount shall bear interest at a rate of 1% per month (or, as contemplated including by Section 2.4(freference to the Independent Accountants if necessary), 10% per month) until paid.
(b) Following any determination pursuant to Section 2.4(c) that an adjustment 5.8 In the event of a Sale of the Purchaser during the Agreed Period, the Deferred Consideration will become payable in full to the Preliminary Monthly Deferred Consideration is necessary, then (1) if the Disputed Amount is a positive number, then Buyer shall pay to Seller, no later than five (5) calendar days following the date on which the Final Monthly Revenue Amount is determined Vendors in accordance with Section 2.4(c) (such dateClause 5.9 irrespective of the level of Net Profits at the date of Sale. For the purposes of this Clause 5.8, the “Final Monthly Revenue Determination Date”), an amount equal to the difference of a "Sale" means (i) the product acquisition by any person of (y) 50 per cent or more of the Final Monthly Revenue Amount multiplied by (z) 0.06 minus issued common stock of the Purchaser or (ii) the Preliminary Monthly Deferred Consideration (such resulting amount, the “Disputed Amount”), which is payable to Seller acquisition by means of a wire transfer of immediately available funds to an account designated in writing by Seller, and (2) if the Disputed Amount is a negative number, Seller shall pay such amount to Buyer within five (5) calendar days following the Final Monthly Revenue Determination Date. If the Disputed Amount is not paid within such five (5) calendar day period, any such unpaid amount shall bear interest at a rate of 1% per month (or, as contemplated by Section 2.4(f), 10% per month) until paid.
(c) Within thirty (30) calendar days after receipt by Seller of a Monthly Revenue Statement (the “Review Period”), Seller may deliver a written notice (an “Objection Notice”) to Buyer of any good faith dispute it has with respect to the preparation or content of such Monthly Revenue Statement (it being understood that any such dispute by Seller shall relate solely to Buyer’s calculation person of the Monthly Revenue Amount). During such thirty (30) calendar day period, Buyer shall promptly deliver to Seller any materials reasonably requested by Seller in order to allow Seller to verify Buyer’s calculation whole or substantially the whole of the Monthly Revenue Amount. The Objection Notice shall describe in reasonable detail the items contained in such Monthly Revenue Statement that Seller disputes business and the basis for any such disputes. Any items other than those disputed in the Objection Notice or arising out of or related to items disputed in the Objection Notice shall be deemed to have been accepted by Seller. If Seller does not deliver an Objection Notice with respect to a Monthly Revenue Statement within the Review Period (or if, within the Review Period, Seller informs Buyer that it has no objection to the Monthly Revenue Statement), such Monthly Revenue Statement shall be final, conclusive and binding on the Parties, except in the case of intentional misrepresentation or fraud in the preparation or presentation of any such Monthly Revenue Statement. In the event that Seller delivers a timely Objection Notice, the Parties shall negotiate in good faith to resolve the disputes. If the Parties, notwithstanding such good faith effort, fail to resolve all such disputes within fifteen (15) calendar days after Buyer receives an Objection Notice, then at any time thereafter upon the request of either Party, the Parties shall jointly engage an independent, nationally-recognized accounting firm mutually agreed to by the Parties (the “Arbitration Firm”) to resolve such dispute. As promptly as practicable thereafter (and, in any event within fifteen (15) calendar days after the Arbitration Firm’s engagement), Seller shall submit any unresolved elements of its objection to the Arbitration Firm in writing (with a copy to Buyer), supported by any documents and arguments upon which it relies. As promptly as practicable thereafter (and, in any event, within fifteen (15) calendar days after Seller’s submission of such unresolved elements), Buyer shall submit its response to the Arbitration Firm (with a copy to Seller) supported by any documents and arguments upon which it relies. The Arbitration Firm shall render its determination within fifteen (15) calendar days after its receipt of Buyer’s response. The scope undertaking of the disputes to be resolved by the Arbitration Firm shall be limited to the unresolved items on the Objection Notice. The determination of the Arbitration Firm shall be conclusive and binding on the Parties. The Monthly Revenue Amount, as finally determined pursuant to this Section 2.4(c), for a particular Calculation Period shall be referred to herein as the “Final Monthly Revenue Amount” for such Calculation Period. The costs and expenses of the Arbitration Firm’s review shall be borne by Seller unless the Final Monthly Revenue Amount exceeds the Monthly Revenue Amount specified in the Monthly Revenue Statement by 5% or more, in which case such costs and expenses shall be borne by BuyerPurchaser.
(d) Seller shall be entitled to receive payments pursuant to this Section 2.4 until the aggregate amount of all Final Monthly Deferred Consideration paid to Seller is equal to $5,000,000 (the “Total Deferred Consideration”). At such point, Seller shall no longer be entitled to receive any further payments pursuant to this Section 2.4. In addition, Buyer may, at any time and in its sole discretion, pay to Seller an amount equal to (A) the Total Deferred Consideration minus (B) the aggregate amount of all Final Monthly Deferred Consideration paid to Seller as of the applicable date (such resulting amount, the “Payoff Amount”). Upon Seller’s receipt of the Payoff Amount, it shall no longer be entitled to receive any further payments pursuant to this Section 2.4.
(e) Except as set forth below, upon any (i) transfer, sale or assignment by Buyer of all or substantially all of the Company’s Software, (ii) transfer, sale or assignment by Buyer of all or substantially all of the assets of the Company or (iii) any Change of Control of the Company, Buyer shall pay to Seller the Payoff Amount and any Deferred Closing Amount that Buyer has not previously paid. Notwithstanding the foregoing sentence, Buyer shall be entitled to (without triggering any obligation to pay the Payoff Amount or any Deferred Closing Amount that Buyer has not previously paid) (A) enter into any of the transactions contemplated by the foregoing clauses (i)-(iii) with any Affiliate (so long as (x) such Affiliate assumes Buyer’s obligations under this Agreement and (y) any such transaction with an Affiliate is approved in advance by Seller, such approval not to be unreasonably withheld (an “Approved Transaction”)) and (B) license any of the Company’s Software in the ordinary course of business in connection with the operation of the Business by the Company and not with a view to permanently divest such Software so that it will no longer be part of the operation of the Business by the Company. For the avoidance of doubt, the transfer, sale, assignment or issuance of less than a majority of the equity interests of the Company or any Affiliate shall not trigger an obligation to pay the Payoff Amount or any Deferred Closing Amount that Buyer has not previously paid. Buyer hereby agrees that until such time as the Total Deferred Consideration is paid in full, Buyer shall cause the following legend to be included on each stock certificate representing shares of capital stock of the Company: "The securities evidenced by this certificate are subject to the terms and conditions of that certain Stock Purchase Agreement by and between ISCO International, Inc. and TAA Group Inc., dated December 5, 2008, which contains certain restrictions on transfer of the securities evidenced by this certificate. The holder of this certificate takes the same and holds it subject to the terms and conditions of such Agreement, and any transfer in conflict therewith or in derogation thereof is void and of no legal force or effect or validity whatsoever."
(f) From and after a Material Payment Default, (i) the interest on past-due amounts shall be increased to 10% per month and (ii) Seller shall be entitled to exercise any and all legal remedies available to it in order to collect such past due amounts (plus the amount of interest thereon).
(g) Until such time as Buyer is no longer obligated to make payments to Seller pursuant to this Section 2.4, Buyer shall not, without Seller’s consent, take any action that results in (i) avoiding amounts that would otherwise be payable to Seller pursuant to this Section 2.4, (ii) adversely affecting the monitoring or reporting of amounts payable under this Section 2.4, without a principal business objective other than the decrease of the amounts otherwise payable under this Section 2.4 or the adverse effect on the monitoring or reporting of amounts payable under this Section 2.4, as the case may be. An action will be deemed to have such a principal business objective if the projected financial results of such action are materially favorable to the Company without considering the avoidance of payments under this Section 2.4 or the adverse affect on the monitoring or reporting of amounts payable under this Section 2.4, as the case may be. Until such time as Buyer is no longer obligated to make payments to Seller pursuant to this Section 2.4, Buyer must not (A) operate or allow the Business to be operated in a manner that will, or is reasonably likely to, materially impair the ability of Buyer or its successors or assigns to make the payments provided for hereunder or (B) permit its assets to become subject to any lien, mortgage, security interest or pledge in favor of any Affiliates, officers or directors of Buyer.
(h) Once per calendar year until such time as Buyer is no longer obligated to make payments to Seller pursuant to this Section 2.4, Buyer shall, and shall cause the Company to, make available to Seller, upon reasonable request and during normal business hours, copies of the books and records of Buyer and the Company for the sole purpose of determining the amounts payable pursuant to this Section 2.4 or otherwise under this Agreement.
(i) Buyer’s payment obligations hereunder shall be absolute, and shall not be subject to set-off, reduction, withholding or deduction of any kind. If (i) Seller is entitled to any payments pursuant to this Section 2.4 and such payments are not paid when due and (ii) Seller successfully brings a legal action against Buyer in order to collect any such past-due amounts, then Buyer shall reimburse Seller for all legal fees incurred by Seller in connection with bringing such action.
Appears in 1 contract
Sources: Share Purchase Agreement (Neomedia Technologies Inc)
Deferred Consideration. Following the Closing:
(ai) No later than fifteen (15) calendar days after the end of each calendar month following the Closing (beginning with the calendar month ending on December 31, 2008) 2026, the Purchaser shall deliver or cause to be delivered to Indigo (each such calendar month period, a “Calculation Period”on behalf of itself and the other Seller), Buyer shall prepare and deliver to Seller a written statement (a “Monthly Revenue Statement”) setting forth the amount of Revenue, if any, of the Company for the applicable Calculation Period (the “Monthly Revenue Amount”), together with reasonably detailed back-up information with respect to the calculation of such amount. Buyer shall, concurrently with its delivery of the Monthly Revenue Statement, pay to Seller an amount equal to the product of 0.06 multiplied by the Monthly Revenue Amount (such resulting amount, the “Preliminary Monthly Deferred Consideration”). If the Preliminary Monthly Deferred Consideration is not paid within such fifteen (15) calendar period, any such unpaid amount shall bear interest at a rate of 1% per month (or, as contemplated by Section 2.4(f), 10% per month) until paid.
(b) Following any determination pursuant to Section 2.4(c) that an adjustment to the Preliminary Monthly Deferred Consideration is necessary, then (1) if the Disputed Amount is a positive number, then Buyer shall pay to Seller, no later than five (5) calendar days following the date on which the Final Monthly Revenue Amount is determined in accordance with Section 2.4(c) (such date, the “Final Monthly Revenue Determination Date”), an amount equal to the difference of (i) the product of (y) the Final Monthly Revenue Amount multiplied by (z) 0.06 minus (ii) the Preliminary Monthly Deferred Consideration (such resulting amount, the “Disputed Amount”), which is payable to Seller by means of a wire transfer of immediately available funds to an the bank account designated in writing by Indigo to the Purchaser at least three (3) Business Days prior to December 31, 2026, an amount equal to $500,000,000 (the “2026 Deferred Consideration”); provided that if, on the Closing Date, the closing price of ^SOX is at least $4,415.25, then the 2026 Deferred Consideration shall be accelerated and the Purchaser shall deliver the 2026 Deferred Consideration to Indigo (on behalf of itself and the other Seller) by wire transfer of immediately available funds to the bank account designated by Indigo to the Purchaser within ten (10) Business Days following the Closing Date; provided, further, that upon an IPO or Company Sale prior to December 31, 2026, the 2026 Deferred Consideration shall be accelerated and the Purchaser shall deliver the 2026 Deferred Consideration to Indigo (2on behalf of itself and the other Seller) by wire transfer of immediately available funds to the bank account designated by Indigo to the Purchaser no later than the consummation of such IPO or Company Sale; and
(ii) on December 31, 2027, the Purchaser shall deliver or cause to be delivered to Indigo (on behalf of itself and the other Seller), by wire transfer of immediately available funds to the bank account designated by Indigo to the Purchaser at least three (3) Business Days prior to December 31, 2027, an amount equal to $500,000,000 (the “2027 Deferred Consideration” and together with the 2026 Deferred Consideration, the “Deferred Consideration”); provided that upon an IPO or Company Sale prior to December 31, 2027, the 2027 Deferred Consideration shall be accelerated and the Purchaser shall deliver the 2027 Deferred Consideration to Indigo (on behalf of itself and the other Seller) by wire transfer of immediately available funds to the bank account designated by Indigo to the Purchaser no later than the consummation of such IPO or Company Sale; provided, however, that, if the Disputed Amount is Purchaser delivers a negative number, Seller shall pay such amount written request to Buyer within Indigo at least five (5) calendar days following Business Days prior to the Final Monthly Revenue Determination Date. If date that the Disputed Amount 2026 Deferred Consideration or 2027 Deferred Consideration is not paid within such five (5) calendar day period, any such unpaid amount shall bear interest at a rate of 1% per month (ordue, as contemplated by applicable, that a member of the Company Group pay some or all of such 2026 Deferred Consideration or 2027 Deferred Consideration, Indigo shall consider such request in good faith; provided, further, that the Purchaser may not cause one or more members of the Company Group to pay some or all of the 2026 Deferred Consideration or 2027 Deferred Consideration to Indigo in satisfaction of the Purchaser’s payment obligations under this Section 2.4(f)2.06(b) unless Indigo, 10% per month) until paid.
(c) Within thirty (30) calendar days after receipt by Seller of a Monthly Revenue Statement (the “Review Period”)in its sole and absolute discretion, Seller may deliver a provides its written notice (an “Objection Notice”) to Buyer of any good faith dispute it has with respect consent. Notwithstanding anything in this Agreement to the preparation or content of such Monthly Revenue Statement (it being understood that any such dispute by Seller shall relate solely to Buyer’s calculation of the Monthly Revenue Amount). During such thirty (30) calendar day period, Buyer shall promptly deliver to Seller any materials reasonably requested by Seller in order to allow Seller to verify Buyer’s calculation of the Monthly Revenue Amount. The Objection Notice shall describe in reasonable detail the items contained in such Monthly Revenue Statement that Seller disputes and the basis for any such disputes. Any items other than those disputed in the Objection Notice or arising out of or related to items disputed in the Objection Notice shall be deemed to have been accepted by Seller. If Seller does not deliver an Objection Notice with respect to a Monthly Revenue Statement within the Review Period (or if, within the Review Period, Seller informs Buyer that it has no objection to the Monthly Revenue Statement), such Monthly Revenue Statement shall be final, conclusive and binding on the Parties, except in the case of intentional misrepresentation or fraud in the preparation or presentation of any such Monthly Revenue Statement. In the event that Seller delivers a timely Objection Noticecontrary, the Parties shall negotiate in good faith to resolve the disputes. If the Parties, notwithstanding such good faith effort, fail to resolve all such disputes within fifteen (15) calendar days after Buyer receives an Objection Notice, then at any time thereafter upon the request of either Party, the Parties shall jointly engage an independent, nationally-recognized accounting firm mutually agreed to by the Parties (the “Arbitration Firm”) to resolve such dispute. As promptly as practicable thereafter (and, in any event within fifteen (15) calendar days after the Arbitration Firmtreat Purchaser’s engagement), Seller shall submit any unresolved elements of its objection to the Arbitration Firm in writing (with a copy to Buyer), supported by any documents and arguments upon which it relies. As promptly as practicable thereafter (and, in any event, within fifteen (15) calendar days after Seller’s submission of such unresolved elements), Buyer shall submit its response to the Arbitration Firm (with a copy to Seller) supported by any documents and arguments upon which it relies. The Arbitration Firm shall render its determination within fifteen (15) calendar days after its receipt of Buyer’s response. The scope of the disputes to be resolved by the Arbitration Firm shall be limited to the unresolved items on the Objection Notice. The determination of the Arbitration Firm shall be conclusive and binding on the Parties. The Monthly Revenue Amount, as finally determined pursuant to this Section 2.4(c), for a particular Calculation Period shall be referred to herein as the “Final Monthly Revenue Amount” for such Calculation Period. The costs and expenses of the Arbitration Firm’s review shall be borne by Seller unless the Final Monthly Revenue Amount exceeds the Monthly Revenue Amount specified in the Monthly Revenue Statement by 5% or more, in which case such costs and expenses shall be borne by Buyer.
(d) Seller shall be entitled to receive payments pursuant to this Section 2.4 until the aggregate amount of all Final Monthly Deferred Consideration paid to Seller is equal to $5,000,000 (the “Total Deferred Consideration”). At such point, Seller shall no longer be entitled to receive any further payments pursuant to this Section 2.4. In addition, Buyer may, at any time and in its sole discretion, pay to Seller an amount equal to (A) the Total Deferred Consideration minus (B) the aggregate amount of all Final Monthly Deferred Consideration paid to Seller as of the applicable date (such resulting amount, the “Payoff Amount”). Upon Seller’s receipt of the Payoff Amount, it shall no longer be entitled to receive any further payments pursuant to this Section 2.4.
(e) Except as set forth below, upon any (i) transfer, sale or assignment by Buyer of all or substantially all of the Company’s Software, (ii) transfer, sale or assignment by Buyer of all or substantially all of the assets of the Company or (iii) any Change of Control of the Company, Buyer shall pay to Seller the Payoff Amount and any Deferred Closing Amount that Buyer has not previously paid. Notwithstanding the foregoing sentence, Buyer shall be entitled to (without triggering any obligation to pay the Payoff Amount or any Deferred Closing Amount that Buyer has not previously paid) (A) enter into any of the transactions contemplated by the foregoing clauses (i)-(iii) with any Affiliate (so long as (x) such Affiliate assumes Buyer’s obligations under this Agreement and (y) any such transaction with an Affiliate is approved in advance by Seller, such approval not to be unreasonably withheld (an “Approved Transaction”)) and (B) license any of the Company’s Software in the ordinary course of business in connection with the operation of the Business by the Company and not with a view to permanently divest such Software so that it will no longer be part of the operation of the Business by the Company. For the avoidance of doubt, the transfer, sale, assignment or issuance of less than a majority of the equity interests of the Company or any Affiliate shall not trigger an obligation to pay the Payoff Amount or any Deferred Closing Amount that Buyer has not previously paid. Buyer hereby agrees that until such time as the Total Deferred Consideration is paid in full, Buyer as indebtedness for all applicable Tax purposes and shall cause the following legend to be included on each stock certificate representing shares of capital stock of the Company: "The securities evidenced by this certificate are subject file all Tax Returns consistent with such Tax treatment to the terms and conditions of that certain Stock Purchase Agreement fullest extent permitted by and between ISCO International, Inc. and TAA Group Inc., dated December 5, 2008, which contains certain restrictions on transfer of the securities evidenced by this certificate. The holder of this certificate takes the same and holds it subject to the terms and conditions of such Agreement, and any transfer in conflict therewith or in derogation thereof is void and of no legal force or effect or validity whatsoeverApplicable Law."
(f) From and after a Material Payment Default, (i) the interest on past-due amounts shall be increased to 10% per month and (ii) Seller shall be entitled to exercise any and all legal remedies available to it in order to collect such past due amounts (plus the amount of interest thereon).
(g) Until such time as Buyer is no longer obligated to make payments to Seller pursuant to this Section 2.4, Buyer shall not, without Seller’s consent, take any action that results in (i) avoiding amounts that would otherwise be payable to Seller pursuant to this Section 2.4, (ii) adversely affecting the monitoring or reporting of amounts payable under this Section 2.4, without a principal business objective other than the decrease of the amounts otherwise payable under this Section 2.4 or the adverse effect on the monitoring or reporting of amounts payable under this Section 2.4, as the case may be. An action will be deemed to have such a principal business objective if the projected financial results of such action are materially favorable to the Company without considering the avoidance of payments under this Section 2.4 or the adverse affect on the monitoring or reporting of amounts payable under this Section 2.4, as the case may be. Until such time as Buyer is no longer obligated to make payments to Seller pursuant to this Section 2.4, Buyer must not (A) operate or allow the Business to be operated in a manner that will, or is reasonably likely to, materially impair the ability of Buyer or its successors or assigns to make the payments provided for hereunder or (B) permit its assets to become subject to any lien, mortgage, security interest or pledge in favor of any Affiliates, officers or directors of Buyer.
(h) Once per calendar year until such time as Buyer is no longer obligated to make payments to Seller pursuant to this Section 2.4, Buyer shall, and shall cause the Company to, make available to Seller, upon reasonable request and during normal business hours, copies of the books and records of Buyer and the Company for the sole purpose of determining the amounts payable pursuant to this Section 2.4 or otherwise under this Agreement.
(i) Buyer’s payment obligations hereunder shall be absolute, and shall not be subject to set-off, reduction, withholding or deduction of any kind. If (i) Seller is entitled to any payments pursuant to this Section 2.4 and such payments are not paid when due and (ii) Seller successfully brings a legal action against Buyer in order to collect any such past-due amounts, then Buyer shall reimburse Seller for all legal fees incurred by Seller in connection with bringing such action.
Appears in 1 contract
Sources: Transaction Agreement (Intel Corp)
Deferred Consideration. (a) No later than fifteen Subject to Section 3.6(d)(ii) and Section 12.10, on the six (156) calendar days after the end month anniversary of each calendar month following the Closing (beginning with the calendar month ending December 31, 2008) (each such calendar month period, a “Calculation Period”)Date, Buyer shall prepare pay $15,000,000 minus (i) 50% of any retention amounts paid by Buyer under the RWI Policy on or prior to such date and deliver to Seller a written statement (a “Monthly Revenue Statement”ii) setting forth the amount of RevenueDeficit Amount, if any, of the Company for the applicable Calculation Period any (the “Monthly Revenue Amount”), together with reasonably detailed back-up information with respect to the calculation of such amount. Buyer shall, concurrently with its delivery of the Monthly Revenue Statement, pay to Seller an amount equal to the product of 0.06 multiplied by the Monthly Revenue Amount (such resulting amount, the “Preliminary Monthly Initial Deferred Consideration”). If ) in immediately available funds to the Preliminary Monthly Deferred Consideration is not paid within such fifteen Exchange Agent (15) calendar period, any such unpaid amount shall bear interest at a rate of 1% per month (or, as contemplated by Section 2.4(fand to the Surviving Corporation for payment to each Vested Optionholder), 10% per month) until paidwith such amount to be further distributed to each of the Pre-Closing Holders in accordance with each such Pre-Closing Holder’s Applicable Percentage.
(b) Following any determination pursuant Subject to Section 2.4(c3.6(d)(ii) that an adjustment to and Section 12.10, on the Preliminary Monthly Subsequent Deferred Consideration is necessaryPayment Date, then (1) if the Disputed Amount is a positive number, then Buyer shall pay $15,000,000 minus 50% of any retention amounts paid by Buyer under the RWI Policy on or prior to Seller, no later than five (5) calendar days following such date and since the date on which payment of the Final Monthly Revenue Amount is determined in accordance with Section 2.4(c) (such date, the “Final Monthly Revenue Determination Date”), an amount equal to the difference of (i) the product of (y) the Final Monthly Revenue Amount multiplied by (z) 0.06 minus (ii) the Preliminary Monthly Initial Deferred Consideration (such resulting amount, the “Disputed AmountSubsequent Deferred Consideration”), which is payable to Seller by means of a wire transfer of ) in immediately available funds to an account designated in writing by Sellerthe Exchange Agent (and to the Surviving Corporation for payment to each Vested Optionholder), and (2) if the Disputed Amount is a negative number, Seller shall pay with such amount to Buyer within five (5) calendar days following be further distributed to each of the Final Monthly Revenue Determination Date. If the Disputed Amount is not paid within Pre-Closing Holders in accordance with such five (5) calendar day period, any such unpaid amount shall bear interest at a rate of 1% per month (or, as contemplated by Section 2.4(f), 10% per month) until paidPre-Closing Holder’s Applicable Percentage.
(ci) Within thirty (30) calendar days after receipt by Seller As soon as reasonably practicable following the finalization of a Monthly Revenue Statement (the “Review Period”), Seller may deliver a written notice (an “Objection Notice”) to Buyer of any good faith dispute it has with respect to the preparation or content of such Monthly Revenue Statement (it being understood that any such dispute by Seller shall relate solely to Buyer’s calculation of the Monthly Revenue Amount). During such thirty (30) calendar day periodaudited financial statements for 2018, Buyer shall promptly deliver to Seller any materials reasonably requested by Seller in order to allow Seller to verify Buyer’s calculation of the Monthly Revenue Amount. The Objection Notice shall describe in reasonable detail the items contained in such Monthly Revenue Statement that Seller disputes and the basis for any such disputes. Any items other than those disputed in the Objection Notice or arising out of or related to items disputed in the Objection Notice shall be deemed to have been accepted by Seller. If Seller does not deliver an Objection Notice with respect to a Monthly Revenue Statement within the Review Period (or if, within the Review Period, Seller informs Buyer that it has no objection to the Monthly Revenue Statement), such Monthly Revenue Statement shall be final, conclusive and binding on the Parties, except in the case of intentional misrepresentation or fraud in the preparation or presentation of any such Monthly Revenue Statement. In the event that Seller delivers a timely Objection Notice, the Parties shall negotiate in good faith to resolve the disputes. If the Parties, notwithstanding such good faith effort, fail to resolve all such disputes within fifteen (15) calendar days after Buyer receives an Objection Notice, then at any time thereafter upon the request of either Party, the Parties shall jointly engage an independent, nationally-recognized accounting firm mutually agreed to by the Parties (the “Arbitration Firm”) to resolve such dispute. As promptly as practicable thereafter (and, in any event within fifteen (15) calendar days after the Arbitration Firm’s engagement), Seller shall submit any unresolved elements of its objection to the Arbitration Firm in writing (with a copy to Buyer), supported by any documents and arguments upon which it relies. As promptly as practicable thereafter (and, in any event, within fifteen (15) calendar days after Seller’s submission of such unresolved elements)thereof, Buyer shall submit its response prepare and deliver to the Arbitration Firm Holder Representative a certificate of the CFO of Buyer setting forth the calculation of the 2018 Company Sales Amount. Following the delivery of such certificate, Buyer shall provide the Holder Representative and its representatives reasonable access during normal business hours and upon reasonable prior notice to the records, properties, personnel and (subject to the execution of customary work paper access letters if requested) auditors of the Company and its Subsidiaries relating to the calculation of the 2018 Company Sales Amount; provided, that such access and cooperation shall be granted under the condition that they shall not unreasonably interfere with the business and operations of the Company and its Subsidiaries.
(ii) In the event of a copy dispute with respect to Seller) supported by any documents and arguments upon which it reliesthe calculation of the 2018 Company Sales Amount, the Holder Representative shall deliver a notice of disagreement to Buyer. The Arbitration Firm notice of disagreement shall render its determination set forth the basis and amount for each dispute of any such calculation in reasonable detail together with relating supporting documentation and calculations, as well as the alternative calculation with respect to the 2018 Company Sales Amount. Buyer and the Holder Representative shall work in good faith to resolve the disagreement. If Buyer and the Holder Representative are unable to reach a mutually acceptable resolution of any such dispute within fifteen thirty (1530) calendar days after its receipt (and do not choose to mutually agree in writing to extend such period of Buyer’s response. The scope of negotiations), the disputes to be resolved by the Arbitration Firm dispute shall be limited submitted to the unresolved items on the Objection NoticeAuditor for resolution consistent with Section 3.6. The determination of the Arbitration Firm shall Auditor shall, in the absence of manifest error, be conclusive final and binding on the Parties. The Monthly Revenue Amount, as finally determined pursuant to this Section 2.4(c), for a particular Calculation Period shall be referred to herein as the “Final Monthly Revenue Amount” for such Calculation Period. The costs and expenses of the Arbitration Firm’s review shall be borne by Seller unless the Final Monthly Revenue Amount exceeds the Monthly Revenue Amount specified in the Monthly Revenue Statement by 5% or more, in which case such costs and expenses shall be borne by Buyerparties hereto.
(d) Seller shall be entitled to receive payments pursuant to this Section 2.4 until the aggregate amount of all Final Monthly Deferred Consideration paid to Seller is equal to $5,000,000 (the “Total Deferred Consideration”). At such point, Seller shall no longer be entitled to receive any further payments pursuant to this Section 2.4. In addition, Buyer may, at any time and in its sole discretion, pay to Seller an amount equal to (A) the Total Deferred Consideration minus (B) the aggregate amount of all Final Monthly Deferred Consideration paid to Seller as of the applicable date (such resulting amount, the “Payoff Amount”). Upon Seller’s receipt of the Payoff Amount, it shall no longer be entitled to receive any further payments pursuant to this Section 2.4.
(e) Except as set forth below, upon any (i) transfer, sale or assignment by Buyer of all or substantially all of the Company’s Software, (ii) transfer, sale or assignment by Buyer of all or substantially all of the assets of the Company or (iii) any Change of Control of the Company, Buyer shall pay to Seller the Payoff Amount and any Deferred Closing Amount that Buyer has not previously paid. Notwithstanding the foregoing sentence, Buyer shall be entitled to (without triggering any obligation to pay the Payoff Amount or any Deferred Closing Amount that Buyer has not previously paid) (A) enter into any of the transactions contemplated by the foregoing clauses (i)-(iii) with any Affiliate (so long as (x) such Affiliate assumes Buyer’s obligations under this Agreement and (y) any such transaction with an Affiliate is approved in advance by Seller, such approval not to be unreasonably withheld (an “Approved Transaction”)) and (B) license any of the Company’s Software in the ordinary course of business in connection with the operation of the Business by the Company and not with a view to permanently divest such Software so that it will no longer be part of the operation of the Business by the Company. For the avoidance of doubt, the transfer, sale, assignment or issuance of less than a majority of the equity interests of the Company or any Affiliate shall not trigger an obligation to pay the Payoff Amount or any Deferred Closing Amount that Buyer has not previously paid. Buyer hereby agrees that until such time as the Total Deferred Consideration is paid in full, Buyer shall cause the following legend to be included on each stock certificate representing shares of capital stock of the Company: "The securities evidenced by this certificate are subject to the terms and conditions of that certain Stock Purchase Agreement by and between ISCO International, Inc. and TAA Group Inc., dated December 5, 2008, which contains certain restrictions on transfer of the securities evidenced by this certificate. The holder of this certificate takes the same and holds it subject to the terms and conditions of such Agreement, and any transfer in conflict therewith or in derogation thereof is void and of no legal force or effect or validity whatsoever."
(f) From and after a Material Payment Default, (i) the interest on past-due amounts shall be increased to 10% per month and (ii) Seller shall be entitled to exercise any and all legal remedies available to it in order to collect such past due amounts (plus the amount of interest thereon).
(g) Until such time as Buyer is no longer obligated to make payments to Seller pursuant to this Section 2.4, Buyer shall not, without Seller’s consent, take any action that results in (i) avoiding amounts that would otherwise be payable to Seller pursuant to this Section 2.4, (ii) adversely affecting the monitoring or reporting of amounts payable under this Section 2.4, without a principal business objective other than the decrease of the amounts otherwise payable under this Section 2.4 or the adverse effect on the monitoring or reporting of amounts payable under this Section 2.4, as the case may be. An action will be deemed to have such a principal business objective if the projected financial results of such action are materially favorable to the Company without considering the avoidance of payments under this Section 2.4 or the adverse affect on the monitoring or reporting of amounts payable under this Section 2.4, as the case may be. Until such time as Buyer is no longer obligated to make payments to Seller pursuant to this Section 2.4, Buyer must not (A) operate or allow the Business to be operated in a manner that will, or is reasonably likely to, materially impair the ability of Buyer or its successors or assigns to make the payments provided for hereunder or (B) permit its assets to become subject to any lien, mortgage, security interest or pledge in favor of any Affiliates, officers or directors of Buyer.
(h) Once per calendar year until such time as Buyer is no longer obligated to make payments to Seller pursuant to this Section 2.4, Buyer shall, and shall cause the Company to, make available to Seller, upon reasonable request and during normal business hours, copies of the books and records of Buyer and the Company for the sole purpose of determining the amounts payable pursuant to this Section 2.4 or otherwise under this Agreement.
(i) Buyer’s payment obligations hereunder shall be absolute, and shall not be subject to set-off, reduction, withholding or deduction of any kind. If (i) Seller is entitled to any payments pursuant to this Section 2.4 and such payments are not paid when due and (ii) Seller successfully brings a legal action against Buyer in order to collect any such past-due amounts, then Buyer shall reimburse Seller for all legal fees incurred by Seller in connection with bringing such action.
Appears in 1 contract
Deferred Consideration. Additional purchase consideration shall be payable to the Sellers of Ordinary Sale Shares if the Company's Operating Profit for the 1998/99 Fiscal Year is equal to or in excess of eight hundred ninety one thousand pounds sterling ((pound)891,000).
(a) No later than fifteen The additional purchase consideration payable pursuant to this Section 2.3 shall be calculated and paid to each Seller of Ordinary Sale Shares in additional Buyer's Shares (15the "Deferred Shares") calendar days after with a value calculated in accordance with the end following (the "Deferred Consideration"):
(i) the lesser of the Company's Operating Profit for the 1998/99 Fiscal Year or one million seven hundred forty nine thousand pounds sterling ((pound)1,749,000);
(ii) multiplied by seven (7);
(iii) multiplied by 0.85;
(iv) minus (pound)5,300,000; and
(v) multiplied by the Ordinary Seller's Ratio of each calendar month following the Closing Seller of Ordinary Sale Shares.
(beginning with the calendar month ending December 31, 2008b) (each such calendar month period, a “Calculation Period”), The Buyer shall prepare use reasonable efforts to procure that the Board of Directors of the Company and deliver to Seller a written statement (a “Monthly Revenue Statement”) setting forth those of the amount of RevenueSellers who are such Directors at that time shall, if anyacting reasonably, procure that such Board approves the final audited accounts of the Company for the applicable Calculation Period 1998/99 Fiscal Year on or before 30 June 1999. The Deferred Shares shall be issued within thirty (30) days after such approval (unless such day is not a business day in which case on the “Monthly Revenue Amount”)next following business day) unless the dispute resolution procedure set forth in Section 2.8 is activated, together with reasonably detailed back-up information with respect to in which case the calculation Deferred Shares shall be issued immediately upon the determination of such amount. Buyer shall, concurrently with its delivery of the Monthly Revenue Statement, pay to Seller an amount equal to the product of 0.06 multiplied by the Monthly Revenue Amount (such resulting amount, the “Preliminary Monthly Deferred Consideration”). If the Preliminary Monthly Deferred Consideration is not paid within such fifteen (15) calendar period, any such unpaid amount shall bear interest at a rate of 1% per month (or, as contemplated by Section 2.4(f), 10% per month) until paid.
(b) Following any determination pursuant to Section 2.4(c) that an adjustment to the Preliminary Monthly Deferred Consideration is necessary, then (1) if the Disputed Amount is a positive number, then Buyer shall pay to Seller, no later than five (5) calendar days following the date on which the Final Monthly Revenue Amount is determined in accordance with Section 2.4(c) (such date, the “Final Monthly Revenue Determination Date”), an amount equal to the difference of (i) the product of (y) the Final Monthly Revenue Amount multiplied by (z) 0.06 minus (ii) the Preliminary Monthly Deferred Consideration (such resulting amount, the “Disputed Amount”), which is payable to Seller by means of a wire transfer of immediately available funds to an account designated in writing by Seller, and (2) if the Disputed Amount is a negative number, Seller shall pay such amount to Buyer within five (5) calendar days following the Final Monthly Revenue Determination Date. If the Disputed Amount is not paid within such five (5) calendar day period, any such unpaid amount shall bear interest at a rate of 1% per month (or, as contemplated by Section 2.4(f), 10% per month) until paidprocedure.
(c) Within thirty (30) calendar days after receipt by Seller of a Monthly Revenue Statement (the “Review Period”), Seller may deliver a written notice (an “Objection Notice”) to Buyer of any good faith dispute it has with respect to the preparation or content of such Monthly Revenue Statement (it being understood that any such dispute by Seller shall relate solely to Buyer’s calculation of the Monthly Revenue Amount). During such thirty (30) calendar day period, Buyer shall promptly deliver to Seller any materials reasonably requested by Seller in order to allow Seller to verify Buyer’s calculation of the Monthly Revenue Amount. The Objection Notice shall describe in reasonable detail the items contained in such Monthly Revenue Statement that Seller disputes and the basis for any such disputes. Any items other than those disputed in the Objection Notice or arising out of or related to items disputed in the Objection Notice shall be deemed to have been accepted by Seller. If Seller does not deliver an Objection Notice with respect to a Monthly Revenue Statement within the Review Period (or if, within the Review Period, Seller informs Buyer that it has no objection to the Monthly Revenue Statement), such Monthly Revenue Statement shall be final, conclusive and binding on the Parties, except in the case of intentional misrepresentation or fraud in the preparation or presentation of any such Monthly Revenue Statement. In the event that Seller delivers a timely Objection Notice, the Parties shall negotiate in good faith to resolve the disputes. If the Parties, notwithstanding such good faith effort, fail to resolve all such disputes within fifteen (15) calendar days after Buyer receives an Objection Notice, then at any time thereafter upon the request of either Party, the Parties shall jointly engage an independent, nationally-recognized accounting firm mutually agreed to by the Parties (the “Arbitration Firm”) to resolve such dispute. As promptly as practicable thereafter (and, in any event within fifteen (15) calendar days after the Arbitration Firm’s engagement), Seller shall submit any unresolved elements of its objection to the Arbitration Firm in writing (with a copy to Buyer), supported by any documents and arguments upon which it relies. As promptly as practicable thereafter (and, in any event, within fifteen (15) calendar days after Seller’s submission of such unresolved elements), Buyer shall submit its response to the Arbitration Firm (with a copy to Seller) supported by any documents and arguments upon which it relies. The Arbitration Firm shall render its determination within fifteen (15) calendar days after its receipt of Buyer’s response. The scope of the disputes to be resolved by the Arbitration Firm shall be limited to the unresolved items on the Objection Notice. The determination of the Arbitration Firm shall be conclusive and binding on the Parties. The Monthly Revenue Amount, as finally determined pursuant to this Section 2.4(c), for a particular Calculation Period shall be referred to herein as the “Final Monthly Revenue Amount” for such Calculation Period. The costs and expenses of the Arbitration Firm’s review shall be borne by Seller unless the Final Monthly Revenue Amount exceeds the Monthly Revenue Amount specified in the Monthly Revenue Statement by 5% or more, in which case such costs and expenses shall be borne by Buyer.
(d) Seller shall be entitled to receive payments pursuant to this Section 2.4 until the aggregate amount of all Final Monthly Deferred Consideration paid to Seller is equal to $5,000,000 (the “Total Deferred Consideration”). At such point, Seller shall no longer be entitled to receive any further payments pursuant to this Section 2.4. In addition, Buyer may, at any time and in its sole discretion, pay to Seller an amount equal to (A) the Total Deferred Consideration minus (B) the aggregate amount of all Final Monthly Deferred Consideration paid to Seller as of the applicable date (such resulting amount, the “Payoff Amount”). Upon Seller’s receipt of the Payoff Amount, it shall no longer be entitled to receive any further payments pursuant to this Section 2.4.
(e) Except as set forth below, upon any (i) transfer, sale or assignment by Buyer of all or substantially all of the Company’s Software, (ii) transfer, sale or assignment by Buyer of all or substantially all of the assets of the Company or (iii) any Change of Control of the Company, Buyer shall pay to Seller the Payoff Amount and any Deferred Closing Amount that Buyer has not previously paid. Notwithstanding the foregoing sentence, Buyer shall be entitled to (without triggering any obligation to pay the Payoff Amount or any Deferred Closing Amount that Buyer has not previously paid) (A) enter into any of the transactions contemplated by the foregoing clauses (i)-(iii) with any Affiliate (so long as (x) such Affiliate assumes Buyer’s obligations under this Agreement and (y) any such transaction with an Affiliate is approved in advance by Seller, such approval not to be unreasonably withheld (an “Approved Transaction”)) and (B) license any of the Company’s Software in the ordinary course of business in connection with the operation of the Business by the Company and not with a view to permanently divest such Software so that it will no longer be part of the operation of the Business by the Company. For the avoidance of doubt, the transfer, sale, assignment or issuance of less than a majority of the equity interests of the Company or any Affiliate shall not trigger an obligation to pay the Payoff Amount or any Deferred Closing Amount that Buyer has not previously paid. Buyer hereby agrees that until such time as the Total Deferred Consideration is paid in full, Buyer shall cause the following legend to be included on each stock certificate representing shares of capital stock of the Company: "The securities evidenced by this certificate are subject to the terms and conditions of that certain Stock Purchase Agreement by and between ISCO International, Inc. and TAA Group Inc., dated December 5, 2008, which contains certain restrictions on transfer of the securities evidenced by this certificate. The holder of this certificate takes the same and holds it subject to the terms and conditions of such Agreement, and any transfer in conflict therewith or in derogation thereof is void and of no legal force or effect or validity whatsoever."
(f) From and after a Material Payment Default, (i) the interest on past-due amounts shall be increased to 10% per month and (ii) Seller shall be entitled to exercise any and all legal remedies available to it in order to collect such past due amounts (plus the amount of interest thereon).
(g) Until such time as Buyer is no longer obligated to make payments to Seller pursuant to this Section 2.4, Buyer shall not, without Seller’s consent, take any action that results in (i) avoiding amounts that would otherwise be payable to Seller pursuant to this Section 2.4, (ii) adversely affecting the monitoring or reporting of amounts payable under this Section 2.4, without a principal business objective other than the decrease of the amounts otherwise payable under this Section 2.4 or the adverse effect on the monitoring or reporting of amounts payable under this Section 2.4, as the case may be. An action will be deemed to have such a principal business objective if the projected financial results of such action are materially favorable to the Company without considering the avoidance of payments under this Section 2.4 or the adverse affect on the monitoring or reporting of amounts payable under this Section 2.4, as the case may be. Until such time as Buyer is no longer obligated to make payments to Seller pursuant to this Section 2.4, Buyer must not (A) operate or allow the Business to be operated in a manner that will, or is reasonably likely to, materially impair the ability of Buyer or its successors or assigns to make the payments provided for hereunder or (B) permit its assets to become subject to any lien, mortgage, security interest or pledge in favor of any Affiliates, officers or directors of Buyer.
(h) Once per calendar year until such time as Buyer is no longer obligated to make payments to Seller pursuant to this Section 2.4, Buyer shall, and shall cause the Company to, make available to Seller, upon reasonable request and during normal business hours, copies of the books and records of Buyer and the Company for the sole purpose of determining the amounts payable pursuant to this Section 2.4 or otherwise under this Agreement.:
(i) Buyer’s payment obligations hereunder no Deferred Shares shall be absolute, and shall not be subject payable to set-off, reduction, withholding or deduction the Sellers of any kind. If (i) Seller is entitled to any payments pursuant to this Section 2.4 and such payments are not paid when due and Preference Sale Shares;
(ii) Seller successfully brings a legal action against no Deferred Shares shall be payable at all in the event the Company's Operating Profit for the 1998/99 Fiscal Year is less than eight hundred ninety one thousand pounds sterling ((pound)891,000);
(iii) the total maximum amount of Deferred Shares paid to all Sellers of Ordinary Sale Shares shall not exceed five million one hundred six thousand five hundred fifty pounds sterling ((pound)5,106,550); and
(iv) Cairnie, Bassett, Cook, Gage and ▇▇▇▇▇▇ irrevocably agree and direct the Buyer to pay to ECI the first such Deferred Consideration otherwise payable to them in order the maximum amounts set forth in Schedule 2 and Buyer agrees to collect make such payment and receipt by ECI of such Deferred Consideration shall constitute complete satisfaction of any obligation by the Buyer otherwise to make such past-due amounts, then Buyer shall reimburse Seller for all legal fees incurred by Seller in connection with bringing such actionpayment to them.
Appears in 1 contract
Sources: Purchase and Sale of Share Capital (Applied Cellular Technology Inc)
Deferred Consideration. 4.1 The Purchaser shall procure that the auditors (afrom time to time) No later than fifteen (15) calendar days after of the end of each calendar month following Company shall:
4.1.1 in addition to preparing the Closing (beginning with the calendar month ending December 31, 2008) (each such calendar month period, a “Calculation Period”), Buyer shall prepare and deliver to Seller a written statement (a “Monthly Revenue Statement”) setting forth the amount of Revenue, if any, audited accounts of the Company for the applicable Calculation Period (financial year ended 31 December 1999 and no later than 31 March 2000, prepare a certificate of the “Monthly Revenue Amount”)Relevant 1999 Profits;
4.1.2 as soon as practicable following 30 June 2001 but no later than 30 September 2001, together with reasonably detailed back-up information with respect prepare a certificate of the Relevant 2001 Profits.
4.2 The certificates delivered pursuant to this clause 4.1 above shall be binding on all parties, unless within 15 Business Days of the calculation of such amount. Buyer shall, concurrently with its delivery of the Monthly Revenue Statementsame by the auditors, pay any of the Vendors notifies the Purchaser in writing of any matters of disagreement with the same in sufficient detail to Seller an amount equal enable the Purchaser to consider them.
4.3 In the event that a notice is served under clause 4.2 the parties shall attempt to resolve the dispute, but in default of agreement as to the product amount of 0.06 multiplied the Relevant 1999 Profits and/or the Relevant 2001 Profits within 15 Business Days of such notice being delivered, the dispute shall be determined by a single independent accountant to be appointed jointly by the Monthly Revenue Amount parties, or in default of agreement, within 5 Business Days after request by the Vendors or the Purchaser, appointed (such resulting amount, on the “Preliminary Monthly Deferred Consideration”). If application of any of the Preliminary Monthly Deferred Consideration is not paid within such fifteen (15parties) calendar period, any such unpaid amount shall bear interest at a rate by the President for the time being of 1% per month (or, as contemplated by Section 2.4(f), 10% per month) until paidthe Institute of Chartered Accountants in England and Wales.
4.4 The said accountant shall be instructed (b) Following any determination pursuant as appropriate):
4.4.1 to Section 2.4(c) give his decision on the adjustments in dispute referred to him as soon as practicable;
4.4.2 to ensure that an adjustment his decision is consistent with the requirements of this clause 4 and the principles and bases in this agreement as relevant; and
4.4.3 to consider only the Preliminary Monthly Deferred Consideration is necessary, then (1) if the Disputed Amount is a positive number, then Buyer shall pay to Seller, no later than five (5) calendar days following the date on which the Final Monthly Revenue Amount is determined adjustments in accordance with Section 2.4(c) (such date, the “Final Monthly Revenue Determination Date”), an amount equal to the difference of (i) the product of (y) the Final Monthly Revenue Amount multiplied by (z) 0.06 minus (ii) the Preliminary Monthly Deferred Consideration (such resulting amount, the “Disputed Amount”), which is payable to Seller by means of a wire transfer of immediately available funds to an account designated in writing by Seller, and (2) if the Disputed Amount is a negative number, Seller shall pay such amount to Buyer within five (5) calendar days following the Final Monthly Revenue Determination Date. If the Disputed Amount is not paid within such five (5) calendar day period, any such unpaid amount shall bear interest at a rate of 1% per month (or, as contemplated by Section 2.4(f), 10% per month) until paiddispute.
(c) Within thirty (30) calendar days after receipt by Seller of a Monthly Revenue Statement (the “Review Period”), Seller may deliver a written notice (4.5 The said accountant shall act as expert and not as an “Objection Notice”) to Buyer of arbitrator and his decision on any good faith dispute it has with respect to the preparation or content of such Monthly Revenue Statement (it being understood that any such dispute by Seller shall relate solely to Buyer’s calculation of the Monthly Revenue Amount). During such thirty (30) calendar day period, Buyer shall promptly deliver to Seller any materials reasonably requested by Seller in order to allow Seller to verify Buyer’s calculation of the Monthly Revenue Amount. The Objection Notice shall describe in reasonable detail the items contained in such Monthly Revenue Statement that Seller disputes and the basis for any such disputes. Any items other than those disputed in the Objection Notice or arising out of or related to items disputed in the Objection Notice matter shall be deemed to have been accepted by Seller. If Seller does not deliver an Objection Notice with respect to a Monthly Revenue Statement within the Review Period (or if, within the Review Period, Seller informs Buyer that it has no objection to the Monthly Revenue Statement), such Monthly Revenue Statement shall be final, conclusive final and binding on the PartiesVendors and the Purchaser. His fees shall be payable between the Vendors and the Purchaser as may be determined by him.
4.6 The parties shall each procure (so far as they are able) that they, except in their respective accountants and the case Company will afford each other and their respective accountants and (if applicable) any independent accountant appointed pursuant to clause 4.4 all facilities and full and prompt access to the Company's premises, papers, books of intentional misrepresentation or fraud in the preparation or presentation of any account, records, returns, directors and employees and such Monthly Revenue Statement. In the event that Seller delivers a timely Objection Notice, the Parties shall negotiate in good faith to resolve the disputes. If the Parties, notwithstanding such good faith effort, fail to resolve all such disputes within fifteen other relevant documents (15) calendar days after Buyer receives an Objection Notice, then at any time thereafter upon the request of either Party, the Parties shall jointly engage an independent, nationally-recognized accounting firm mutually agreed to including working papers prepared by the Parties (Purchaser's Accountants which support their calculations) as are in their respective possession to enable the “Arbitration Firm”) to resolve such dispute. As promptly as practicable thereafter (and, in any event within fifteen (15) calendar days after the Arbitration Firm’s engagement), Seller shall submit any unresolved elements of its objection to the Arbitration Firm in writing (with a copy to Buyer), supported by any documents and arguments upon which it relies. As promptly as practicable thereafter (and, in any event, within fifteen (15) calendar days after Seller’s submission of such unresolved elements), Buyer shall submit its response to the Arbitration Firm (with a copy to Seller) supported by any documents and arguments upon which it relies. The Arbitration Firm shall render its determination within fifteen (15) calendar days after its receipt of Buyer’s response. The scope of the disputes to be resolved by the Arbitration Firm shall be limited to the unresolved items on the Objection Notice. The determination of the Arbitration Firm Relevant 1999 Profits and/or the Relevant 2001 Profits in accordance with this clause 4.
4.7 Subject to clause 3.5, the Purchaser shall be conclusive enter into the Deferred Consideration Loan Note Instrument and binding pay to the Vendors the First Deferred Payment in the form of definitive certificates in respect of the Second Tranche Loan Notes in the percentages set out opposite their respective names in column 4 of Schedule 1 on the Parties. The Monthly Revenue Amount, as finally determined pursuant to this Section 2.4(c), for a particular Calculation Period shall be referred to herein as the “Final Monthly Revenue Amount” for such Calculation Period. The costs and expenses of the Arbitration Firm’s review shall be borne by Seller unless the Final Monthly Revenue Amount exceeds the Monthly Revenue Amount specified in the Monthly Revenue Statement by 5% or more, in which case such costs and expenses shall be borne by Buyer.
(d) Seller shall be entitled to receive payments pursuant to this Section 2.4 until the aggregate amount of all Final Monthly Deferred Consideration paid to Seller is equal to $5,000,000 (the “Total Deferred Consideration”). At such point, Seller shall no longer be entitled to receive any further payments pursuant to this Section 2.4. In addition, Buyer may, at any time and in its sole discretion, pay to Seller an amount equal to (A) the Total Deferred Consideration minus (B) the aggregate amount of all Final Monthly Deferred Consideration paid to Seller as of the applicable date (such resulting amount, the “Payoff Amount”). Upon Seller’s receipt of the Payoff Amount, it shall no longer be entitled to receive any further payments pursuant to this Section 2.4.
(e) Except as set forth below, upon any (i) transfer, sale or assignment by Buyer of all or substantially all of the Company’s Software, (ii) transfer, sale or assignment by Buyer of all or substantially all of the assets of the Company or (iii) any Change of Control of the Company, Buyer shall pay to Seller the Payoff Amount and any Deferred Closing Amount that Buyer has not previously paid. Notwithstanding the foregoing sentence, Buyer shall be entitled to (without triggering any obligation to pay the Payoff Amount or any Deferred Closing Amount that Buyer has not previously paid) (A) enter into any of the transactions contemplated by the foregoing clauses (i)-(iii) with any Affiliate (so long as (x) such Affiliate assumes Buyer’s obligations under this Agreement and (y) any such transaction with an Affiliate is approved in advance by Seller, such approval not to be unreasonably withheld (an “Approved Transaction”)) and (B) license any of the Company’s Software in the ordinary course of business in connection with the operation of the Business by the Company and not with a view to permanently divest such Software so that it will no longer be part of the operation of the Business by the Company. For the avoidance of doubt, the transfer, sale, assignment or issuance of less than a majority of the equity interests of the Company or any Affiliate shall not trigger an obligation to pay the Payoff Amount or any Deferred Closing Amount that Buyer has not previously paid. Buyer hereby agrees that until such time as the Total Deferred Consideration is paid in full, Buyer shall cause the following legend to be included on each stock certificate representing shares of capital stock of the Company: "The securities evidenced by this certificate are subject to the terms and conditions of that certain Stock Purchase Agreement by and between ISCO International, Inc. and TAA Group Inc., dated December 5, 2008, which contains certain restrictions on transfer of the securities evidenced by this certificate. The holder of this certificate takes the same and holds it subject to the terms and conditions of such Agreement, and any transfer in conflict therewith or in derogation thereof is void and of no legal force or effect or validity whatsoever."
(f) From and after a Material Payment Default, (i) the interest on past-due amounts shall be increased to 10% per month and (ii) Seller shall be entitled to exercise any and all legal remedies available to it in order to collect such past due amounts (plus the amount of interest thereon).
(g) Until such time as Buyer is no longer obligated to make payments to Seller pursuant to this Section 2.4, Buyer shall not, without Seller’s consent, take any action that results in (i) avoiding amounts that would otherwise be payable to Seller pursuant to this Section 2.4, (ii) adversely affecting the monitoring or reporting of amounts payable under this Section 2.4, without a principal business objective other than the decrease of the amounts otherwise payable under this Section 2.4 or the adverse effect on the monitoring or reporting of amounts payable under this Section 2.4, as the case may be. An action will be deemed to have such a principal business objective if the projected financial results of such action are materially favorable to the Company without considering the avoidance of payments under this Section 2.4 or the adverse affect on the monitoring or reporting of amounts payable under this Section 2.4, as the case may be. Until such time as Buyer is no longer obligated to make payments to Seller pursuant to this Section 2.4, Buyer must not (A) operate or allow the Business to be operated in a manner that will, or is reasonably likely to, materially impair the ability of Buyer or its successors or assigns to make the payments provided for hereunder or (B) permit its assets to become subject to any lien, mortgage, security interest or pledge in favor of any Affiliates, officers or directors of Buyer.
(h) Once per calendar year until such time as Buyer is no longer obligated to make payments to Seller pursuant to this Section 2.4, Buyer shall, and shall cause the Company to, make available to Seller, upon reasonable request and during normal business hours, copies of the books and records of Buyer and the Company for the sole purpose of determining the amounts payable pursuant to this Section 2.4 or otherwise under this Agreement.
(i) Buyer’s payment obligations hereunder shall be absolute, and shall not be subject to set-off, reduction, withholding or deduction of any kind. If (i) Seller is entitled to any payments pursuant to this Section 2.4 and such payments are not paid when due and (ii) Seller successfully brings a legal action against Buyer in order to collect any such past-due amounts, then Buyer shall reimburse Seller for all legal fees incurred by Seller in connection with bringing such action.later of:
Appears in 1 contract
Sources: Agreement for the Sale and Purchase of Share Capital (Healthworld Corp)