M&A Boot Camp booklet 2023 - Flipbook - Page 97
that shall be included in “One Year Bookings” shall be calculated by: (x) determining the aggregate maintenance bookings for the entire
term of the applicable maintenance arrangement; (y) allocating the bookings determined pursuant to clause “x” of this sentence over
the term of the maintenance arrangement on a pro-rata basis; and (z) including in “One Year Bookings” the amount allocated under
clause “(y)” of this sentence for a one year period); less (B) the sum of: (1) actual sales returns with respect to the bookings referred to
in clause “(A)” of this sentence for the period beginning on the first day of the One-Year Period and ending at 5:00 p.m. Pacific time on
the 90th day following the last day of the One-Year Period (the “Specified Period”); (2) actual write-offs of accounts receivable with
respect to the bookings referred to in clause “(A)” of this sentence for the Specified Period; (3) any accounts receivable with respect to
the bookings referred to in clause “(A)” of this sentence that are more than 90 days past due as of the end of the Specified Period; and
(4) any bookings with respect to which product revenue is not recognizable (whether during or after the One-Year Period) in
accordance with GAAP;
(iii) “One-Year Period” shall mean the period commencing at 9:00 a.m. Pacific time on April 1, 2009 and ending at 5:00 p.m. Pacific
time on March 31, 2010;
(iv) “Percentage Interest” shall mean, with respect to any particular Eligible Stockholder, the percent set forth next to such
Eligible Stockholder’s name on Schedule 1.7(a)(iv); and
(v) “Post-Closing Payment” shall mean any payment that Parent is required to make pursuant to Section 1.7.
(b) Subject to any right of setoff that Parent may be entitled to exercise (pursuant to Section 9.6 or otherwise), and subject to the other
provisions of Section 1.7:
(i) if the One Year Bookings are equal to or greater than the amount set forth in clause “(i)(1)” of Schedule 1.7(b), then Parent
shall pay to each Eligible Stockholder, on a date selected by Parent within 120 days following the end of the One-Year Period, cash
equal to such Eligible Stockholder’s Percentage Interest in the amount set forth in clause “(i)(2)” of Schedule 1.7(b);
(ii) if the One Year Bookings are at least equal to the amount set forth in clause “(ii)(1)” of Schedule 1.7(b), then Parent shall pay
to each Eligible Stockholder, on a date selected by Parent within 120 days following the end of the One-Year Period, cash equal to:
(A) the amount due under clause “(i)” of this Section 1.7(b); and (B) such Eligible Stockholder’s Percentage Interest in the amount set
forth in clause “(ii)(2)” of Schedule 1.7(b); and
(iii) if the One Year Bookings are greater than the amount set forth in clause “(iii)(1)” of Schedule 1.7(b), then Parent shall pay to
each Eligible Stockholder, on a date selected by Parent within 120 days following the end of the One-Year Period, cash equal to: (A) the
amount due under clause “(i)” of this Section 1.7(b); (B) the amount due under clause “(ii)” of this Section 1.7(b); and (C) such Eligible
Stockholder’s Percentage Interest in the amount determined by multiplying: (1) the amount set forth in clause “(iii)(2)” of Schedule 1.7
(b); by (2) the quotient of: (x) the amount by which the One Year Bookings exceed the amount set forth in clause “(iii)(1)” of Schedule
1.7(b); and (y) the amount set forth in clause “(iii)(3)” of Schedule 1.7(b).
Notwithstanding anything to the contrary contained in this Agreement: (A) in no event shall the aggregate amounts payable by Parent to the
Eligible Stockholders pursuant to this Section 1.7 exceed the amount set forth in clause “(iii)(4)” of Schedule 1.7(b); and (B) if the Stockholders’
Agent delivers an Initial Objection Notice or a Final Objection Notice to Parent in accordance with Section 1.7(e), then Parent shall make any
payments required under this Section 1.7(b) to the Eligible Stockholders within 30 days after the dispute identified in such Initial Objection Notice
or a Final Objection Notice, as the case may be, is resolved.
7.