Payment of Contingent Consideration. Not later than thirty (30) days following the delivery to HBI of consolidated and consolidating audited financial statements for HBI for the year ended December 31, 2008 (or such later time as all disputes have been resolved under Section 8.2(D)), HBI shall cause written notice to be given to the Holders (the “Payment Notice”) that shall (i) state the amount of Contingent Consideration, if any, payable pursuant to this Section 8.2, (ii) request the Holder’s written election (which shall be irrevocable) (the “Holder’s Payment Election”) between receiving the Holder’s portion of the Contingent Consideration as Contingent Stock Consideration (for which purposes a share of HBI Common Stock shall be valued at $22.00) or Contingent Cash Consideration, and (iii) advise that such election shall be made by HBI in the event the Holder’s Payment Election, indicating the Holder’s election, is not returned to HBI within thirty (30) days after the date of the Payment Notice. If the Holder elects to receive Contingent Stock Consideration, he or she must make the Required Rule 506 Representations and agree to the Required Rule 506 Restrictions or the Holder will only receive Contingent Cash Consideration. Promptly after HBI’s receipt of a Holder’s Payment Election, HBI shall cause to be paid to the Holder his or her portion of the Contingent Consideration, in the form of Contingent Stock Consideration or Contingent Cash Consideration, as elected by the Holder’s Payment Election; provided, however, that no fractional shares of Contingent Stock Consideration shall be paid, such fractional shares, if any, to be paid in Contingent Cash Consideration, and provided, further, that the Contingent Consideration owed to any Holder who has failed to return his or her Payment Election within the thirty (30) day period immediately following the date of the Payment Notice may be paid by HBI, in its discretion, in the form of Contingent Stock Consideration or Contingent Cash Consideration. Notwithstanding anything else to the contrary, all Holders who are not Accredited Investors shall be deemed to have elected to receive Contingent Cash Consideration.
Appears in 1 contract
Payment of Contingent Consideration. Not As soon as practicable after the close of the Surviving Corporation's books for calendar years 1996 and 1997, but in any event, no later than thirty (30) 90 days following after the delivery to HBI end of consolidated each such calendar year, the Surviving Corporation will determine the final aggregate amount of the Contingent Consideration, if any, for such preceding calendar year based upon the Surviving Corporation's internal accounting records, and consolidating audited financial statements for HBI for the year ended December 31, 2008 (or such later time as all disputes have been resolved under Section 8.2(D)), HBI shall cause written notice to be given to the Holders (the “Payment Notice”) that shall (i) state notify Sellers in writing of the amount of Contingent Consideration, if any, payable pursuant to this Section 8.2, (ii) request the Holder’s written election (which shall be irrevocable) any (the “Holder’s Payment Election”"Contingent Notice"). Sellers may, within forty-five (45) between receiving the Holder’s portion days after receipt of the Contingent Consideration as Contingent Stock Consideration Notice, deliver to the Surviving Corporation written notice (for which purposes a share of HBI Common Stock shall be valued at $22.00the "Dispute Notice") or Contingent Cash Consideration, and (iii) advise identifying any dispute that such election shall be made by HBI Sellers may have with respect to the amount set forth in the event the Holder’s Payment Election, indicating the Holder’s election, is not returned to HBI within thirty (30) days after the date of the Payment Contingent Notice. If the Holder elects to receive Contingent Stock Consideration, he or she must make the Required Rule 506 Representations and agree a Dispute Notice is not delivered by Sellers to the Required Rule 506 Restrictions or Company within such forty-five day period, the Holder will only receive Contingent Cash Consideration. Promptly after HBI’s receipt of a Holder’s Payment Election, HBI shall cause to be paid to the Holder his or her portion amount of the Contingent Consideration, if any, set forth in the form of Contingent Stock Consideration or Contingent Cash Consideration, as elected by the Holder’s Payment Election; provided, however, that no fractional shares of Contingent Stock Consideration Notice shall be paidfinal and binding on the parties hereto. Within fifteen (15) days following the Surviving Corporation's receipt of a Dispute Notice, such fractional sharesthe Surviving Corporation and Sellers shall in good faith attempt to agree upon the Contingent Consideration, if any, for such calendar year. If the Surviving Corporation and Sellers cannot agree to the amount of the Contingent Consideration, if any, for such calendar year, they shall jointly submit their dispute to the Cincinnati, Ohio office of Coopers & Xxxxxxx (the "Arbiter") for final determination, whose determination shall be made within ninety (90) days of the date the dispute is submitted to the Arbiter. The fees and expenses of the Arbiter shall be shared equally between the Surviving Corporation and Sellers. The Arbiter's determination as to the amount of Contingent Consideration for such calendar year shall be final and binding on the parties hereto. The Contingent Consideration awarded to Sellers in respect of any particular calendar year shall be paid in to Sellers within fifteen days of the final determination of the Contingent Cash Consideration, if any, without interest. Each Seller shall be entitled to receive a pro rata portion of the aggregate amount of Contingent Consideration payable to Sellers based upon each Seller's pro rata ownership interest in the Company as set forth on EXHIBIT A attached hereto. In connection with the determination of the Contingent Consideration, Parent and providedthe Surviving Corporation shall give Sellers and the Arbiter, furtheras applicable, that reasonable access to the portion of its books and records which are relevant to the calculation of the Contingent Consideration owed to any Holder who has failed to return his or her Payment Election within the thirty (30) day period immediately following the date of the Payment Notice may be paid by HBI, in its discretion, in the form of Contingent Stock Consideration or Contingent Cash Consideration. Notwithstanding anything else to the contrary, all Holders who are not Accredited Investors shall be deemed to have elected to receive Contingent Cash Considerationduring normal business hours upon reasonable advance notice.
Appears in 1 contract
Payment of Contingent Consideration. Not As soon as practicable after the end of each Earnout Period, but in any event, no later than thirty 90 days after the end of each Earnout Period, TCP will determine the final aggregate amount of Net Revenues for such preceding Earnout Period and shall deliver to Sellers a special audit report detailing the calculation of the Net Revenues for such Earnout Period (30the "Contingent Notice"), together with a certified cheque payable to each of the Sellers in an amount equal to such Seller's portion of the Contingent Consideration for such Earnout Period as set forth on EXHIBIT A attached hereto. The Contingent Notice shall be prepared by TCP and shall be audited by Xxxxxx Xxxxxxxx, LLP (the "ACCOUNTANTS"). Any Seller may, within twenty (20) days after receipt of the Contingent Notice, deliver to TCP and each other Seller, written notice (the "Dispute Notice") identifying any dispute that such Seller may have with respect to the calculation of Net Revenues for such Earnout Period. If a Dispute Notice is not delivered by any Seller to TCP within such twenty day period, the calculation of Net Revenues as set forth in the Contingent Notice shall be final and binding on the parties hereto, excepting fraud and wilful misconduct by TCP or any of its officers, directors or agents. Within twenty (20) days following TCP's receipt of a Dispute Notice, TCP and the delivery disputing Seller(s) shall in good faith attempt to HBI of consolidated and consolidating audited financial statements for HBI for agree upon the year ended December 31, 2008 (or such later time as all disputes have been resolved under Section 8.2(D)), HBI shall cause written notice to be given to the Holders (the “Payment Notice”) that shall (i) state the amount of Contingent Consideration, if any, payable pursuant to this Section 8.2, (ii) request the Holder’s written election (which shall be irrevocable) (the “Holder’s Payment Election”) between receiving the Holder’s portion of the Contingent Consideration as Contingent Stock Consideration (for which purposes a share of HBI Common Stock shall be valued at $22.00) or Contingent Cash Consideration, and (iii) advise that such election shall be made by HBI in the event the Holder’s Payment Election, indicating the Holder’s election, is not returned to HBI within thirty (30) days after the date of the Payment NoticeEarnout Period. If TCP and the Holder elects to receive Contingent Stock Consideration, he or she must make the Required Rule 506 Representations and disputing Seller(s) cannot agree to the Required Rule 506 Restrictions or the Holder will only receive Contingent Cash Consideration. Promptly after HBI’s receipt of a Holder’s Payment Election, HBI shall cause to be paid to the Holder his or her portion amount of the Contingent Consideration, in if any, for such Earnout Period, they shall jointly submit their dispute to the form Edmonton office of Contingent Stock Consideration or Contingent Cash ConsiderationErnst & Young (the "Arbiter") for final determination, as elected by whose determination shall be made within ninety (90) days of the Holder’s Payment Electiondate the dispute is submitted to the Arbiter. The fees and expenses of the Arbiter shall be shared equally between TCP and the disputing Seller(s); provided, however, that no fractional shares the Arbiter shall have the discretion to award the payment of its fees and each party's costs and expenses, including, without limitation, reasonable attorneys fees, if the Arbiter determines that a party to the proceeding acted unreasonably in disputing the amount of the Contingent Consideration. The Arbiter's determination as to the amount of Contingent Stock Consideration for such Earnout Period shall be paid, such fractional sharesfinal and binding on the parties hereto. The remainder of the Contingent Consideration, if any, or the amount of Contingent Consideration to be refunded to the Company, if any, shall be paid by the Company to Sellers (in Contingent Cash Consideration, and provided, further, that proportion to each of their respective percentage interests in the Contingent Consideration owed as set forth on EXHIBIT A attached hereto) or by Sellers (severally in proportion to any Holder who has failed each of their respective interests in the Contingent Consideration and not jointly), to return his or her Payment Election within the thirty (30) day period immediately following Company, as the date case may be, upon the final determination of the Payment Notice may be paid Contingent Consideration, with interest at the prime rate of interest as announced from time to time by HBIAmerican National Bank and Trust Company of Chicago. In connection with the determination of the Contingent Consideration by the Arbiter, in its discretionTCP shall give the Sellers, in their agents and the form of Contingent Stock Consideration or Contingent Cash Consideration. Notwithstanding anything else Arbiter, as applicable, reasonable access to the contraryportion of the books and records of TCP, all Holders who the Company and their respective Subsidiaries which are not Accredited Investors shall be deemed relevant to have elected the calculation of the Contingent Consideration during normal business hours upon reasonable advance notice during the period from the delivery of the Contingent Notice to receive the final determination of the amount of the Contingent Cash ConsiderationConsideration for such Earnout Period.
Appears in 1 contract
Samples: Stock Purchase Agreement (Total Control Products Inc)
Payment of Contingent Consideration. Not later than thirty (30) days following the delivery to HBI of consolidated and consolidating audited financial statements for HBI for the year ended December 31, 2008 (or such later time as all disputes have been resolved under Section 8.2(D)), HBI shall cause written notice to be given to the Holders (the “Payment Notice”) that shall (i) state the amount of Contingent ConsiderationThe Earn-Out Payments, if any, payable pursuant to this Section 8.2and the Additional Upside Payments, if any (ii) request each, a “Contingent Consideration Payment” and collectively, the Holder’s written election (which “Contingent Consideration Payments”), shall be irrevocable) (the “Holder’s Payment Election”) between receiving the Holder’s portion paid by Buyer to Sellers in accordance with Section 1.5 within 60 days of the last day of the applicable twelve-month period (e.g., Year One, Year Two and Year Three) for which such Contingent Consideration as Contingent Stock Consideration (for which purposes a share of HBI Common Stock shall be valued at $22.00) or Contingent Cash Consideration, and (iii) advise that such election shall be made by HBI in the event the Holder’s Payment Election, indicating the Holder’s election, is not returned to HBI within thirty (30) days after the date of the Payment Notice. If the Holder elects to receive Contingent Stock Consideration, he or she must make the Required Rule 506 Representations and agree to the Required Rule 506 Restrictions or the Holder will only receive Contingent Cash Consideration. Promptly after HBI’s receipt of a Holder’s Payment Election, HBI shall cause to be paid to the Holder his or her portion of the Contingent Consideration, in the form of Contingent Stock Consideration or Contingent Cash Consideration, as elected by the Holder’s Payment Electioncalculated; provided, however, that no fractional shares the conditions for payment of such Contingent Stock Consideration shall be paid, such fractional shares, if any, Payment as set forth in this Section 1.6 have been satisfied and subject to be paid in Contingent Cash Consideration, Section 5.6; and provided, further, that any payment of the portion of the applicable Contingent Consideration owed Payment in dispute shall be appropriately delayed until such dispute has been resolved pursuant to Section 1.6(g). For the avoidance of doubt, notwithstanding any Holder who has failed to return his or her dispute that may be pending resolution in accordance with Section 1.6(g), the portion of any Contingent Consideration Payment Election not in dispute shall be paid within the thirty (30) day period immediately following the date 60 days of the last day of the applicable twelve-month period (e.g., Year One, Year Two and Year Three) for which such Contingent Consideration Payment Notice may be paid by HBIis calculated. Any portion of a disputed Contingent Consideration Payment shall bear interest at the LIBOR 30-Day Index Rate if any portion of such disputed Contingent Consideration Payment is resolved in favor of Sellers. For each fiscal month during Year One, in its discretionYear Two and Year Three, in Buyer agrees to deliver to Sellers, within 30 days after the form end of such fiscal month, a statement showing the calculation of the COH (each, a “COH Statement”) for such fiscal month and the cumulative COH for the applicable twelve-month period that includes such fiscal month. The COH Statement covering Year One, Year Two or Year Three, as applicable, shall include a calculation of the resulting Contingent Stock Consideration or Contingent Cash Consideration. Notwithstanding anything else Payment, if any, and is referred to the contrary, all Holders who are not Accredited Investors shall be deemed to have elected to receive Contingent Cash Considerationherein as an “Annual COH Statement.”
Appears in 1 contract
Payment of Contingent Consideration. Not As soon as practicable after the close of Purchaser's books for each Earn Out Period, but in any event, no later than thirty sixty (3060) days following after the delivery to HBI end of consolidated each such Earn Out Period, Purchaser will in good faith determine the final aggregate amount of the Contingent Consideration, if any, for such preceding Earn Out Period based upon Purchaser's internal accounting records, and consolidating audited financial statements for HBI for the year ended December 31, 2008 (or such later time as all disputes have been resolved under Section 8.2(D)), HBI shall cause written notice to be given to the Holders (the “Payment Notice”) that shall (i) state notify Sensor in writing of the amount of Contingent Consideration, if any, payable pursuant to this Section 8.2, (ii) request along with the Holder’s written election (which shall be irrevocable) methodology of computing such amount (the “Holder’s Payment Election”"Contingent Notice") between receiving the Holder’s portion of the Contingent Consideration as Contingent Stock Consideration (for which purposes a share of HBI Common Stock shall be valued at $22.00) or Contingent Cash Considerationwith respect to such Earn Out Period. Sensor may, and (iii) advise that such election shall be made by HBI in the event the Holder’s Payment Election, indicating the Holder’s election, is not returned to HBI within thirty (30) days after the date receipt of the Payment Contingent Notice, deliver to Purchaser written notice (the "Dispute Notice") identifying any dispute that Sensor may have with respect to the amount set forth in the Contingent Notice. If a Dispute Notice is not delivered by Sensor to Purchaser within such thirty (30) day period, the Holder elects to receive Contingent Stock Consideration, he or she must make the Required Rule 506 Representations and agree to the Required Rule 506 Restrictions or the Holder will only receive Contingent Cash Consideration. Promptly after HBI’s receipt of a Holder’s Payment Election, HBI shall cause to be paid to the Holder his or her portion amount of the Contingent Consideration, if any, set forth in the form of Contingent Stock Consideration or Contingent Cash Consideration, as elected by the Holder’s Payment Election; provided, however, that no fractional shares of Contingent Stock Consideration Notice shall be paidfinal and binding on the parties hereto and shall be paid as provided above within five (5) days thereafter. Within fifteen (15) days following Purchaser's receipt of a Dispute Notice, such fractional sharesPurchaser and Sensor shall in good faith attempt to agree upon the Contingent Consideration, if any, for such Earn Out Period. If Purchaser and Sensor cannot agree to the amount of the Contingent Consideration, if any, for such fiscal year within such fifteen (15) day period, they shall jointly submit their dispute to the Arbitrating Accountant for final determination, whose determination shall be made within forty-five (45) days of the date the dispute is submitted to the Arbitrating Accountant. The fees and expenses of the Arbitrating Accountant shall be shared equally between the Purchaser, on the one hand, and the Contract Parties, on the other hand. The Arbitrating Accountant's determination as to the amount of Contingent Consideration for such Earn Out Period shall be final and binding on the parties hereto. The Contingent Consideration awarded to Sensor in respect of any particular Earn Out Period shall be paid in by TCP and Purchaser jointly and severally to Sensor within ten (10) days of the final determination of the Contingent Cash Consideration, if any, without interest, with respect to such Earn Out Period in accordance with the provisions of Section 3.6(d) below. In connection with the determination of the Contingent Consideration, Purchaser shall give Sensor and/or the Arbitrating Accountant, as applicable, reasonable access (fax if possible) to the portion of its books and provided, further, that records which are relevant to the calculation of the Contingent Consideration owed to any Holder who has failed to return his or her Payment Election within the thirty (30) day period immediately following the date of the Payment Notice may be paid by HBI, in its discretion, in the form of Contingent Stock Consideration or Contingent Cash Consideration. Notwithstanding anything else to the contrary, all Holders who are not Accredited Investors shall be deemed to have elected to receive Contingent Cash Considerationfor such Earn Out Period during normal business hours upon reasonable advance notice.
Appears in 1 contract
Samples: Asset Purchase Agreement (Total Control Products Inc)
Payment of Contingent Consideration. Not later than thirty (30Any Contingent Consideration earned pursuant to Section 1.7(b) days following shall be paid by the delivery Purchaser to HBI the Sellers in five installments under the terms of consolidated and consolidating audited financial statements for HBI for the year ended December Contingent Consideration Note. Installment payments under the Contingent Consideration Note shall be made on or before August 31, 2008 (2009, February 28, 2010, August 31, 2010, February 28, 2011 and August 31, 2011, or such later time as date with respect to all disputes have been resolved under Section 8.2(D)), HBI shall cause written notice to be given to the Holders (the “Payment Notice”) that shall (i) state the amount of Contingent Consideration, if any, payable pursuant to this Section 8.2, (ii) request the Holder’s written election (which shall be irrevocable) (the “Holder’s Payment Election”) between receiving the Holder’s or any portion of the Contingent Consideration payable on each such date as necessary to resolve any disputes with respect to the calculation of Contingent Stock Consideration pursuant to Section 1.7(e) and to resolve any pending claims for recovery of Damages pursuant to Article 9 (for which purposes a share each, an “Installment Due Date”). On each of HBI Common Stock the first four Installment Due Dates, the Sellers shall be valued entitled to receive an amount equal to any Contingent Consideration earned by the Sellers pursuant to Section 1.7(b) during the relevant measurement period set forth in the Contingent Consideration Note (each, a “Measurement Period”) (subject to the limitations set forth in this Section 1.7(d)). All calculations of the number of pSel Hybrid Display units sold and delivered at $22.00) or any time and the related calculation of any Contingent Cash Consideration, and (iii) advise that such election Consideration due pursuant to the Contingent Consideration Note shall be net of any applicable returns (including returns for warranty claims) without duplication; provided, that Purchaser shall be entitled to withhold an amount from the installment payment to be made by HBI in on February 28, 2011 equal to the event Estimated Remaining Return Amount. Purchaser shall pay the Holder’s Payment Election, indicating Excess Warranty Holdback Amount (to the Holder’s election, extent such amount is not returned a positive number) pursuant to HBI within thirty (30) days after the date terms of the Payment NoticeContingent Consideration Note on the August 31, 2011 Installment Due Date. If the Holder elects Excess Warranty Holdback Amount is zero or a negative number, Purchaser shall have no obligation to receive Contingent Stock Consideration, he or she must make pay the Required Rule 506 Representations and agree to the Required Rule 506 Restrictions or the Holder will only receive Contingent Cash Consideration. Promptly after HBI’s receipt of a Holder’s Payment Election, HBI shall cause to be paid to the Holder his or her Sellers any portion of the Contingent ConsiderationEstimated Remaining Return Amount. In the event that any Purchaser Party shall incur any Damages for which it is entitled to recovery under this Agreement, the Purchaser shall be entitled to offset in the form manner described in Article 9 the aggregate amount of such Damages (converted into U.S. dollars in accordance with Section 9.4, if necessary) against any Contingent Stock Consideration otherwise payable to the Sellers under the Contingent Consideration Note pursuant to this Section 1.7 to the extent such Damages exceed the then-outstanding balance under the Sellers Promissory Notes (including accrued interest). In addition, if any Purchaser Party has any pending claim pursuant to Article 9 of this Agreement for the recovery of Damages under this Agreement on an Installment Due Date in excess of the then-outstanding balance under the Sellers Promissory Notes (including accrued interest), then the Purchaser shall be entitled to withhold from the Contingent Consideration otherwise payable to the Sellers under the Contingent Consideration Note an amount equal to the amount by which the Claimed Amount or Contingent Cash ConsiderationContested Amount, as elected by applicable (converted into U.S. dollars in accordance with Section 9.4, if necessary), exceeds the Holder’s Payment Election; providedthen-outstanding balance under the Sellers Promissory Notes (including accrued interest), and the Purchaser shall not be obligated to deliver any of such withheld Contingent Consideration to the Sellers pursuant to the Contingent Consideration Note until the related claim for recovery of Damages is finally resolved in accordance with the terms of this Agreement, at which time such Contingent Consideration shall be delivered to the Sellers together with any accrued interest thereon, less any setoff in accordance with Section 9.4 of this Agreement. For the avoidance of doubt, however, that no fractional shares Purchaser’s withholding of amounts from payment on the February 28, 2011 Installment Due Date with respect to the Estimated Remaining Return Amount shall not extend the period for which Purchaser’s recourse for Damages is available pursuant to Article 9 or increase the amount available for recovery of Damages. Any payment of Contingent Stock Consideration shall be paid, such fractional shares, if any, to be paid in Contingent Cash Consideration, and provided, further, that the Sellers under the Contingent Consideration owed Note pursuant to any Holder who has failed to return his or her Payment Election within the thirty (30this Section 1.7(d) day period immediately following the date of the Payment Notice may be paid by HBI, in its discretion, in the form of Contingent Stock Consideration or Contingent Cash Consideration. Notwithstanding anything else to the contrary, all Holders who are not Accredited Investors shall be deemed to have elected to receive Contingent Cash Considerationdistributed in accordance with Section 1.1(a)(ii) of this Agreement.
Appears in 1 contract
Samples: Share Purchase Agreement (Multi Fineline Electronix Inc)
