exv10w31a



 





Exhibit 10.31A




Rebate addendum to the




Product License and Distribution Agreement




Between




DoubleTake, Inc. (“Provider”)




and




Dell Product, L.P. (“Dell”)




Dated November 16, 2001




This Addendum (the “Addendum”) entered into on June 13, 2007 (“Effective Date”) between
Provider and Dell supplements and amends the terms of the Product License and Distribution
Agreement between Provider and Dell dated the 16th day of November, 2001 (the
“Agreement”). Except as specifically set forth in this Addendum, all terms and conditions of the
Agreement shall remain in full force and effect. To the extent that there is any conflict or
inconsistency between this Addendum and the Agreement, this Addendum shall govern and control
solely with respect to the subject matter hereof.



Provider and Dell agree:




	(1)	 	Defined terms in this Addendum are:






“Rebate Period” means each 12 month period beginning on the Effective Date above and
continuing for 3 years.




“Dell Fiscal Year” means the 12 months period between February of one year and January of
the following year.




“Dell Fiscal Quarter” means the three month period represented by the following table.



	 	 	 	 	 	 
	 
	 	Dell Fiscal Quarter	 	 	Months	 
	 	Q1

	 	 	February-April	 
	 	Q2

	 	 	May-July	 
	 	Q3

	 	 	August-October	 
	 	Q4

	 	 	November-January	 
	 






“Rebate” means an amount to be paid by Provider to Dell as provided under this Addendum.




“Products” means all Provider and Affiliate products, services, maintenance and renewals
sold in each Worldwide region through the Dell S&P.




“Worldwide” means Dell Americas (US — Latin America — Canada) and Asia Pacific, Japan.
EMEA regions will be excluded from this agreement until Dell Q2, FY09. EMEA will be
included in the definition of Worldwide beginning in Dell Q2, FY09. New Zealand and
Australia will be excluded from this agreement until Dell Q2, FY09. New Zealand and
Australia will be included in the definition of Worldwide beginning in Dell Q2, FY09.




“Quarterly Sales” means the total dollar amount invoiced by Provider or an Affiliate either
directly to Dell or to an authorized distributor for the sale of all Products sold in each
Worldwide region through Dell S&P during a Dell Fiscal Quarter. In the event that Provider
acquires an Affiliate during the Rebate Period, the total dollar amount invoiced by
Affiliate after the date of acquisition will be included in the calculation of Quarterly
Sales.




“Quarterly Rebate” means an amount to be paid by Provider to Dell as provided under this
Addendum. Quarterly Rebate will start from dollar one and apply to all Products sold in
each Worldwide region through Dell S&P.




“Quarterly Report” means a report that includes Quarterly Sales in each Worldwide region and
the corresponding Quarterly Rebate.




“Affiliate” means companies which are under the control of a party, such control being
exercised through the ownership or control, directly or indirectly, of more than fifty
percent (50%) of all of the voting power of the shares entitled to vote for the election of
directors or other governing authority under the Agreement.



 









 






“Growth Rate” means the percent change in Quarterly Sales from one Dell Fiscal Quarter over
the Quarterly Sales in the same Dell Fiscal Quarter in the previous Dell Fiscal Year. For
example, if the Quarterly Sales in Q1 FYO7 are $120M and Quarterly Sales in Q1 FY06 were
$100M then the Growth Rate equals ($120-$100)/$100 or 20%.




	(2)	 	Quarterly Rebate Percentage






Quarterly Rebates will be calculated in each Worldwide region as the Quarterly Sales for that
region in a Dell Fiscal Quarter multiplied by the applicable Rebate Percentage below:



	 	 	 	 	 	 	 	 
	 
	 	If the Growth Rate for a Dell Fiscal	 	 	The Quarterly Rebate Percentage	 
	 	Quarter is:	 	 	Will Be:	 
	 	 	 	 	 	 
	 	Above 30%

	 	 	 	8	%	 
	 	Between 30% and 10%

	 	 	 	6	%	 
	 	Between 10% and 0%

	 	 	 	5	%	 
	 	Below 0%

	 	 	 	3	%	 
	 







	(3)	 	Quarterly Reporting and Payment






Provider shall submit the Quarterly Report which includes a calculation of Quarterly Rebate
to be paid to each Worldwide region on such Quarterly Sales within thirty (30) days of the
end of each Dell Fiscal Quarter of a Rebate Period. This report shall be emailed to the
contact list in Attachment 1: Contact list and Payment Methods.




Provider shall pay the Quarterly Rebate directly to each Worldwide region within forty five
(45) days of the end of each such Dell Fiscal Quarter. Dell shall not be obligated to
reimburse or pay any rebate amounts previously paid to Dell by Provider. Quarterly Rebate
shall be sent to each Worldwide Region as described in Attachment 1: Contact list and Payment
Methods.




	(4)	 	Renewal






The provisions of this Addendum shall automatically renew for successive one year terms
unless either party notifies the other in writing of non-renewal at least ninety (90) days
prior to the beginning of a new 12 month term.




	(5)	 	Offset of Rebate Amounts






Dell may not offset or reduce any amounts owed to Provider in anticipation of a future rebate
payment under this Addendum.



IN WITNESS WHEREOF, the parties have caused this Addendum to be executed and do each hereby warrant
and represent that their respective signatory whose signature appears below has been and is on the
date of this Addendum duly authorized by all necessary and appropriate corporate action to execute
this Addendum.



	 	 	 	 	 	 	 
	 	 	 	 	Dell Product, L.P.
	 
	 	 	 	 	 	 
	By:

	 	          /s/ Craig Huke
	 	By:
	 	          /s/ Scott Crawley
	 

	 	 
	 	 	 	 
	Name:

	 	          Craig Huke
	 	Name:
	 	          Scott Crawley
	 

	 	 
	 	 	 	 
	Title:

	 	          Chief Financial Officer
	 	Title:
	 	          Director
	 

	 	 
	 	 	 	 
	Date:

	 	          06/15/07
	 	Date:
	 	          06/26/07