M&A Bootcamp booklet - Flipbook - Page 97
(c) Notwithstanding anything to the contrary contained in this Section 1.7 or elsewhere in this Agreement (and without limiting any
other rights or remedies available to Parent), Parent shall, subsequent to the rendering of a final determination pursuant to Section 1.7(e)
below, be entitled, in its sole discretion, to deduct from either the Escrow Fund or any Post-Closing Payment cash equal to the Eligible
Stockholders’ portion of the Post-Closing Payment Fees and Expenses (as defined below).
(d) Promptly following the end of each fiscal quarter during the One-Year Period, but in no event more than 30 days thereafter, Parent
shall in good faith: (i) prepare or cause to be prepared a non-binding estimate of the amount of the One Year Bookings as of the end of such
fiscal quarter (the “Quarterly Statement”); and (ii) for informational purposes only, deliver or cause to be delivered such Quarterly Statement
to the Stockholders’ Agent for and on behalf of the Eligible Stockholders.
(e) On or before the 60th day following the end of the One-Year Period, Parent shall: (i) prepare or cause to be prepared a statement (the
“Bookings Statement”) setting forth the One Year Bookings, together with the dollar amounts of any Post-Closing Payment that Parent
believes is due in accordance with Section 1.7; and (ii) deliver or cause to be delivered such Bookings Statement to the Stockholders’ Agent
for and on behalf of the Eligible Stockholders.
(f) In the event that the Stockholders’ Agent objects to Parent’s calculation of the Bookings Statement or the dollar amount of any
Post-Closing Payment set forth in any Bookings Statement or requires further information in order to perform such calculations or determine
such amounts, then within 20 days after the delivery to the Stockholders’ Agent of such Bookings Statement (the “Initial Response Period”),
the Stockholders’ Agent shall deliver to Parent a written notice (an “Initial Objection Notice”): (i) describing in reasonable detail the
Stockholders’ Agent’s objections to Parent’s calculation of the amounts set forth in such statement and containing a statement setting forth
the One Year Bookings or the amount of any such Post-Closing Payment determined by the Stockholders’ Agent to be correct; or
(ii) requesting additional information from Parent that the Stockholders’ Agent deems reasonably necessary in order to perform such
calculations or determine such amounts (which information, to the extent reasonably necessary in order to perform such calculations, shall
be provided by Parent within 15 days after Parent’s receipt of such request). If the Stockholders’ Agent does not deliver an Initial Objection
Notice to Parent during the Initial Response Period, then Parent’s calculation of the amounts set forth in the Bookings Statement shall be
binding and conclusive on Parent, the Eligible Stockholders and the Stockholders’ Agent. If the Stockholders’ Agent delivers an Initial
Objection Notice to Parent accompanied by a request for additional information from Parent as described above during the Initial Response
Period, then the Stockholders’ Agent shall have an additional 20 days after receiving from Parent either: (x) all of the information requested
by the Stockholders’ Agent; or (y) written notice from Parent that no further requested information is to be provided (such 20 day period, the
“Final Response Period”) to deliver to Parent a written notice (a “Final Objection Notice”) describing in reasonable detail the Stockholders’
Agent’s objections to Parent’s calculations of the amounts set forth in such Bookings Statement accompanied by a statement setting forth
the One Year Bookings or the dollar amount of any such Post-Closing Payment determined by the Stockholders’ Agent to be correct. If the
Stockholders’ Agent has requested additional information in an Initial Objection Notice delivered during the Initial Response Period and
does not deliver a Final Objection Notice to Parent during the Final Response Period, then Parent’s calculation of the amounts set forth in
the Bookings Statement shall be binding and conclusive on Parent, the Eligible Stockholders and the
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