G/ABA-MSPA-SPA-CmA/Form/SPA/0.md

/Docs/G/ABA-MSPA-SPA-CmA/Form/SPA/0.md
Source views: Source JSON(ish) on GitHub (VSCode) Doc views: Document (&k=Sale.r00t): Visual Print Technical: OpenParameters Xray

Sale and Transfer of Shares; Closing

Shares
Subject to the terms and conditions of this Agreement, and in reliance upon the representations, warranties, and covenants contained in this Agreement, at the Closing, Buyer shall purchase the Shares from Sellers, and Sellers shall sell and transfer the Shares to Buyer, free and clear of any Encumbrance.
Purchase Price
The purchase price for the Shares (the "Purchase Price") is Price.Total.Sum.$, plus or minus the Adjustment Amount. At the Closing, Buyer shall deliver as payment on account of the Purchase Price:(a) Price.Close.Sum.$ (the "Closing Payment"), which will be allocated among Sellers as set forth on Schedule 2.2, and which shall be paid by wire transfer to Sellers' Representative pursuant to written wire transfer instructions delivered to Buyer by Sellers' Representative at least three (3) Business Days prior to the Closing; (b) promissory notes executed by Buyer and payable to each Seller, in the principal amounts set forth on Schedule 2.2 (collectively, the "Promissory Notes"), in the form of Exhibit 2.2(b); and (c) Price.Escrow.Sum.$ paid by wire transfer to the Escrow Agent pursuant to the Escrow Agreement (the "Escrow Funds"). The Adjustment Amount shall be paid by Sellers or Buyer, as the case may be, in accordance with Section 2.5.
Closing
Subject to Section 10, the purchase and sale (the "Closing") provided for in this Agreement will take place at the offices of Buyer.Atty.US.N,E,A commencing at Closing.Time.cl or at such other date and time as Buyer and Sellers' Representative may otherwise agree, provided that on or prior to that date all conditions set forth in Section 8 and Section 9 have been satisfied or waived. If all conditions set forth in Section 8 and Section 9 are not satisfied or waived by Closing.Cond.SatisfactionDeadline.YMD, subject to Section 10, the Closing will take place upon the earlier of (a) five (5) Business Days following notice given by Buyer stating that all conditions set forth in Section 8 and Section 9 have been satisfied or waived (other than conditions to be satisfied on the Closing Date), and (b) the End Date. the Closing will be deemed to be effective as of the close of business on Closing.EffectiveDate.YMD for tax and accounting purposes.
Closing Obligations
At the Closing:
Sellers shall deliver to Buyer:
certificates representing the Shares, endorsed in blank (or accompanied by stock powers executed in blank) and otherwise in proper form for transfer
the Organizational Documents of each Acquired Company filed with any Governmental Body in connection with its organization, duly certified as of a recent date by the Secretary of State or other appropriate authority of the jurisdiction of its incorporation or organization, together with a certificate dated as of the Closing Date from the Secretary of each Acquired Company to the effect that no amendments to such Organizational Documents have been filed since the date referred to above
the Organizational Documents of each Acquired Company not filed with a Governmental Body in connection with its organization, certified as of the Closing Date by the Secretary of each Acquired Company
certificates dated as of a date not more than five (5) days prior to the Closing Date as to the good standing of each Acquired Company and payment of applicable state Taxes;, issued by the appropriate Governmental Body of the jurisdiction of the Acquired Company's organization and each jurisdiction in which the Acquired Company is licensed or qualified to do business as a foreign entity as specified in Part 3.1 of the Disclosure Letter
releases in the form of Exhibit 2.4(a)(v) executed by Sellers;
an employment agreement in the form of Exhibit 2.4(a)(vi), executed by Employee.Agt.Persons.cl and the Company;
an escrow agreement in the form of Exhibit 2.4(a)(vii), executed by Sellers (the "Escrow Agreement"); and
the certificate referred to in Section 8.3.
Buyer shall deliver to Sellers' Representative (or in the case of the Escrow Funds, to the Escrow Agent):
the Closing Payment;
the Promissory Notes;
the Escrow Funds;
the Escrow Agreement, executed by Buyer and the Escrow Agent; and
the certificate referred to in Section 9.3.
Adjust Amount and Payment
1. The "Adjustment Amount" will be the difference, if any, between (i) the consolidated shareholders' equity of the Company and its Subsidiaries as of the Closing Date, as shown on the Closing Balance Sheet (the "Closing Date Shareholders' Equity"), and (ii) InterimBalanceSheet.ShareholdersEquity.Sum.$ (the consolidated shareholders' equity of the Company and its Subsidiaries as shown on the Interim Balance Sheet) (the "Interim Shareholders' Equity"). If the Closing Date Shareholders' Equity is less than the Interim Shareholders' Equity, the Adjustment Amount shall be paid by Sellers to Buyer. If the Closing Date Shareholders' Equity is greater than the Interim Shareholders' Equity, subject to Section 11.7, the Adjustment Amount shall be paid by Buyer to Sellers.
2. If the Adjustment Amount or, after giving effect to Section 11.7, any portion of the Adjustment Amount is to be paid by Buyer to Sellers, the Adjustment Amount or such portion thereof shall be paid by Buyer by wire transfer to Sellers' Representative pursuant to wire transfer instructions provided to Buyer by Sellers' Representative prior to the due date for the payment set forth in Section 2.5(c). If the Adjustment Amount is to be paid by Sellers to Buyer, the Adjustment Amount shall be paid by Sellers by wire transfer to Buyer pursuant to wire transfer instructions provided by Buyer to Sellers' Representative prior to the due date for the payment set forth in Section 2.5(c).
3. All payments under this Section 2.5 shall be made together with interest at the rate set forth in the Promissory Notes, which interest will begin accruing on the Closing Date and end on the day before the payment is made. Within three (3) Business Days after the Closing Balance Sheet and Adjustment Amount become binding on the parties pursuant to Section 2.6, Sellers or Buyer, as the case may be, shall make the payment provided for in this Section 2.5.
Adjustment Procedure
1. Buyer shall prepare a consolidated balance sheet of the Acquired Companies as of the close of business on the Business Day prior to the Closing Date (the "Closing Balance Sheet"). the Closing Balance Sheet shall be prepared using the accounting principles, policies, and practices set forth on Exhibit 2.6(a). Buyer shall deliver the Closing Balance Sheet and the determination of the Adjustment Amount to Sellers' Representative within ninety (90) days following the Closing Date.
2. Upon execution of such access letters as may be reasonably required by Buyer, Sellers' Representative and its Representatives shall, during reasonable business hours, be given reasonable access to (and copies of) all Buyer's and its Representatives' books, records, and other documents, including work papers, worksheets, notes, and schedules, used in preparation of the Closing Balance Sheet and the determination of the Adjustment Amount, for the purpose of reviewing the Closing Balance Sheet and determination of the Adjustment Amount, in each case, other than certain work papers that Buyer considers proprietary, such as internal control documentation, engagement planning, time control and audit sign off, and quality control work papers.
3. If within 30 days following delivery of the Closing Balance Sheet and the determination of the Adjustment Amount to Sellers' Representative, Sellers' Representative has not given Buyer notice of an objection as to any amounts set forth on the Closing Balance Sheet or the determination of the Adjustment Amount (which notice shall state in reasonable detail the basis of Sellers' Representative's objections and Sellers' proposed adjustments (the "Objection Notice")), the Closing Balance Sheet and the determination of the Adjustment Amount as prepared by Buyer will be final, binding, and conclusive on the parties.
4. If Sellers' Representative timely gives Buyer an Objection Notice and if Sellers' Representative and Buyer fail to resolve the issues raised in the Objection Notice within 30 days after giving the Objection Notice, Sellers' Representative and Buyer shall submit the issues remaining in dispute for resolution to Price.Adjust.Mediator.cl (or, if such person or firm is providing services to Buyer or a Seller or is otherwise unable or unwilling to serve in such capacity, a recognized national or regional independent accounting firm mutually acceptable to Buyer and Sellers' Representative) (the "Independent Accountants").
5. The parties shall negotiate in good faith in order to seek agreement on the procedures to be followed by the Independent Accountants, including procedures with regard to the presentation of evidence. If the parties are unable to agree upon procedures within 10 days of the submission to the Independent Accountants, the Independent Accountants shall establish such procedures giving due regard to the intention of the parties to resolve disputes as promptly, efficiently, and inexpensively as possible, which procedures may, but need not, be those proposed by either Buyer or Sellers' Representative. The Independent Accountants shall be directed to resolve only those issues in dispute and render a written report on their resolution of disputed issues with respect to the Closing Balance Sheet and the resulting Adjustment Amount as promptly as practicable, but no later than 60 days after the date on which the Independent Accountants are engaged. The determination by the Independent Accountants will be based solely on written submissions of Buyer, on the one hand, and Sellers' Representative, on the other hand, and will not involve independent review. Any determination of the Closing Balance Sheet or the Adjustment Amount by the Independent Accountants will not be outside the range established by the amounts in (i) the Closing Balance Sheet and the determination of the Adjustment Amount proposed by Buyer, and (ii) Sellers' Representative's proposed adjustments thereto. Such determination will be final, binding, and conclusive on the parties as of the date of the determination notice sent by the Independent Accountants.
6. If issues are submitted to the Independent Accountants for resolution:
  1. Sellers' Representative and Buyer shall execute any agreement required by the Independent Accountants to accept their engagement pursuant to Section 2.6(d);
  2. Sellers' Representative and Buyer shall promptly furnish or cause to be furnished to the Independent Accountants such work papers and other documents and information relating to the disputed issues as the Independent Accountants may request and are available to that party or its accountants or other Representatives, and shall be afforded the opportunity to present to the Independent Accountants, with a copy to the other party, any other written material relating to the disputed issues;
  3. The determination by the Independent Accountants, as set forth in a report to be delivered by the Independent Accountants to both Sellers' Representative and Buyer, will include the revised Closing Balance Sheet and Adjustment Amount, reflecting the changes required as a result of the determination made by the Independent Accountants; and
  4. Sellers and Buyer shall each bear one-half of the fees and costs of the Independent Accountants; provided, however, that the engagement agreement referred to in Section 2.6(f)(i) above may require the parties to be bound jointly and severally to the Independent Accountants for those fees and costs, and in the event Sellers or Buyer pay to the Independent Accountants any amount in excess of one-half of the fees and costs of its engagement, the other party(ies) agree(s) to reimburse Sellers or Buyer, as applicable, upon demand, to the extent required to equalize the payments made by Sellers and Buyer with respect to the fees and costs of the Independent Accountants.