M&A Boot Camp booklet 2023 - Flipbook - Page 99
Stockholders’ Agent. If the Stockholders’ Agent delivers an Initial Objection Notice or Final Objection Notice, as the case may be,
accompanied by 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 to Parent during either the Initial Response Period or the Final Response Period in accordance with this
Section 1.7(f), and if the Stockholders’ Agent and Parent are unable to agree upon the calculation of the amounts set forth in the Bookings
Statement within 30 days after such Initial Objection Notice or Final Objection Notice, as the case may be, is delivered to Parent, the dispute
shall be finally settled by a “Big Four” accounting firm selected by Parent and reasonably acceptable to the Stockholders’ Agent (other than
Parent’s auditing firm at the time). The determination by the independent accounting firm of the disputed amounts and the Post-Closing
Payments, if any, shall be conclusive and binding on Parent, the Eligible Stockholders and the Stockholders’ Agent. Parent and the
Stockholders’ Agent (on behalf of the Eligible Stockholders) shall each bear and pay 50% of the fees and other expenses of such
independent accounting firm (the “Post-Closing Payment Fees and Expenses”).
(g) No rights or interest of any Eligible Stockholder under this Section 1.7 may be assigned, transferred or otherwise disposed of, in
whole or in part, other than pursuant to the laws of descent and distribution or by will or, in the case of an Eligible Stockholder that is an
entity organized for the purpose of making venture capital investments, to any entity under common investment management with such
Eligible Stockholder.
(h) At reasonable times during normal business hours and upon reasonable notice provided to Parent, Parent shall permit the
Stockholders’ Agent, to examine the financial books and records of the Surviving Corporation and/or Parent, only to the extent necessary for
the exercise of the Stockholders’ Agent’s right to object to Parent’s calculation of the amounts set forth in the Bookings Statement. The
Stockholders’ Agent agrees that he shall hold all information acquired during such examination in strict confidence and shall use such
information only for purposes of making calculations under Section 1.7; provided, however, that such information may be provided to agents
and independent contractors of the Stockholders’ Agent that are subject to contractual (or, with respect to counsel, professional)
confidentiality obligations in favor of (and for the benefit of) Parent in respect of such information for use in furtherance of an engagement to
assist the Stockholders’ Agent in making such calculations as provided for herein.
(i) While Parent currently believes that it is in its best interest that it and the Company use commercially reasonable efforts to generate
One Year Bookings, it is understood and agreed that: (i) neither Parent nor the Company has any obligation to use any specified efforts to
generate One Year Bookings (or to sell or license Specified Company Products or enter into or renew related maintenance contracts); and
(ii) Parent (on behalf of itself and on behalf of any of its Subsidiaries, including the Surviving Corporation) may discontinue the sale or
license of Specified Company Products and the entering into or renewal of related maintenance contracts at any time without penalty (it
being understood, however, that Parent will act in good faith in connection with the foregoing).
1.8 Dissenting Shares.
(a) Effect on Dissenting Shares. Notwithstanding any provisions of this Agreement to the contrary, shares of Company Capital Stock
held by a holder who has demanded and perfected such demand for appraisal of such holder’s shares of Company Capital Stock in
accordance with Section 262 of the DGCL and as of the Closing has neither effectively withdrawn nor lost such holder’s right to such
appraisal (the “Dissenting Shares”) shall not be converted into the applicable Merger Consideration, but shall be entitled to only such rights
as are granted by the DGCL. Parent shall be entitled to retain any Merger Consideration not paid on account of such Dissenting Shares
pending resolution of the claims of such holders.
9.