Ciber filed with the U.S. Bankruptcy Court an objection to the motion of Ciber Global (f/k/a HTC Global Ventures) to enforce the terms of the asset purchase agreement.
The objection asserts, “The Motion fundamentally misinterprets clear contractual language contained in the APA and attempts to foist upon the Debtors’ Estates obligations clearly assumed by the Purchaser. In an effort to achieve this result, the Motion ‘cherry-picks’ or outright misrepresents language in the APA or otherwise relies entirely on statements allegedly made by the Debtors and not within the four-corners of the APA….The Debtors and the Purchaser have engaged in good faith negotiations to resolve the parties’ disagreement without Court intervention, and the Debtors are currently awaiting a proposal from the Purchaser. However, the Debtors believe that the contractual language in the APA on each of these points is unambiguous. As such, Purchaser should not be permitted to avoid the identified liabilities.”
In addition, “Accordingly, the Debtors hereby cross move to compel the Purchaser to repay the Debtors for amounts paid on account of the Medical Claims. Further, the Debtors also cross move to compel the Purchaser to file required tax forms in India which give rise to the Transfer Taxes and other Taxes arising in connection with the consummation of the transactions contemplated by the APA that the Purchaser expressly assumed under the APA….Pursuant to the APA, the $14,500,000 payment required by Purchaser was neither a cap on the Assumed Employee Liabilities nor did it alter the APA’s definition of Assumed Liabilities.…Importantly, the amount of the Q2 Commissions were not even known at Closing (since the 2nd Quarter had not yet even ended) and an estimate of those Q2 Commissions was not included in the build-up of the $14,500,000. Accordingly, the Purchaser should not reasonably have expected that those amounts were satisfied through the $14,500,000 payment.”
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