M&A Boot Camp booklet 2023 - Flipbook - Page 96
Stockholders’ Agent Escrow Fund with respect thereto, but excluding any amounts that may become payable pursuant to Section 1.7),
and having a denominator equal to the aggregate amount of Merger Consideration payable pursuant to Section 1.5(a) in respect of all
shares of Company Capital Stock held by Non-Dissenting Stockholders immediately prior to the Effective Time (including any amount
contributed to the Escrow Fund or Stockholders’ Agent Escrow Fund with respect thereto, but excluding any amounts that may
become payable pursuant to Section 1.7).
(c) Escrow Contributions. At the Effective Time, Parent shall cause to be delivered to the Escrow Agent in cash with respect to each
share of Company Capital Stock held by the Non-Dissenting Stockholders immediately prior to the Effective Time: (i) an amount equal to the
Escrow Contribution Amount applicable to such share of Company Capital Stock as a contribution to the Escrow Fund; and (ii) an amount
equal to the Stockholders’ Agent Escrow Contribution Amount applicable to such share of Company Capital Stock as a contribution to the
Stockholders’ Agent Escrow Fund. Each of the Escrow Fund and the Stockholders’ Agent Escrow Fund: (A) shall be held by the Escrow
Agent in accordance with the terms of this Agreement and the terms of the Escrow Agreement or the Stockholders’ Agent Escrow
Agreement, as applicable; (B) shall be held as a trust fund and shall not be subject to any lien, attachment, trustee process or other judicial
process of any creditor of any Person; and (C) shall be held and disbursed solely for the purposes and in accordance with the terms of this
Agreement and the Escrow Agreement or the Stockholders’ Agent Escrow Agreement, as applicable.
(d) Adjustments. In the event that the Company, at any time or from time to time between the date of this Agreement and the Effective
Time, declares or pays any dividend on Company Capital Stock payable in Company Capital Stock or in any right to acquire Company Capital
Stock, or effects a subdivision of the outstanding shares of Company Capital Stock into a greater number of shares of Company Capital
Stock, or in the event the outstanding shares of Company Capital Stock shall be combined or consolidated, by reclassification or otherwise,
into a lesser number of shares of Company Capital Stock, then the amounts payable in respect of shares of Company Capital Stock pursuant
to Section 1.5(a) shall be appropriately adjusted.
1.6 Treatment of Stock Options. Parent shall not assume any Company Options in connection with the transactions contemplated by this
Agreement. At the Effective Time, each Company Option, whether vested or unvested, shall, by virtue of the Merger and without any action on
the part of the holder thereof, be cancelled and extinguished without any conversion thereof, and no payment or distribution shall be made with
respect thereto.
1.7 Post-Closing Payments.
(a) For purposes of Section 1.7, the following terms shall have the following meanings:
(i) “Eligible Stockholder” shall mean a holder of shares of Company Preferred Stock immediately prior to the Effective Time that
does not perfect its dissenters’ rights;
(ii) “One Year Bookings” shall mean: (A) the bookings (net of applicable discounts and as the term “bookings” is commonly
understood and only to the extent that a purchase order and related executed customer contract exists in respect thereof) derived by
Parent or the Company solely from: (1) the sale of any of the Company’s products identified on Schedule 1.7(a)(ii) (collectively, the
“Specified Company Products”) during the One-Year Period; and (2) the sale of initial or renewal maintenance contracts during the
One-Year Period to the extent related to the sale of Specified Company Products (it being understood that with respect to multi-year
maintenance arrangements, the bookings
6.