Working Capital True Up Is Not An End Run Around Liability Bar

By Stephen Quinlivan (July 10, 2017, 5:25 PM EDT) -- In Chicago Bridge & Iron Co. NV v. Westinghouse Electric Co. LLC (Del. 2017), the Delaware Supreme Court examined the interaction between a working capital true up and alleged breaches of financial statement representations and warranties in a purchase agreement for the sale of a subsidiary. The purchase agreement was certainly unusual. The purchase price at closing was expected to be zero, subject to a working capital true up. The representations and warranties did not survive closing. Buyer Westinghouse's sole remedy for breaches of representations and warranties was to refuse to close and seller Chicago Bridge would have no liability for monetary damages post-closing. Chicago Bridge's business of participating in the construction of nuclear power plants with Westinghouse had gone south, and it was seeking a clean exit....

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