Incredimail 2011 Annual Report Download - page 163

(h)
If the Company Net Working Capital as determined by the Reviewing Accountant is closer to the Company Net Working Capital as set
forth in the Notice of Objection than to the Company Net Working Capital as set forth in the Purchaser NWC Certificate, then two-
thirds of the fees and expenses of
the Reviewing Accountant shall be borne by Purchaser and one-
third thereof shall be borne by the Participating Securityholders by way of reduction of the Deferred
Payment. Otherwise, one-third of such fees and expenses shall be borne by Purchaser and two-
thirds thereof shall be borne by the Participating Securityholders by
way of reduction of the Deferred Payment.
(i) Notwithstanding the foregoing, if the Deferred Payment shall be due and payable pursuant to Section 1.9(d) hereof prior to the final
determination of Company Net Working Capital pursuant to this Section 1.12, then any amounts described in Section 1.12(g) and Section 1.12(h) as reducing the
Deferred Payment, as reasonably estimated by Purchaser, shall be held by the Paying Agent and distributed upon the final determination of Company Net Working
Capital.
1.13 Contingent Payment .
(a) As part of the Merger Consideration, if the Company meets the financial and business performance criteria described in Section 1.13(h)
hereof (the “ Milestones ”) during the Earn-
out Period, then promptly following the final determination of the amount of the Contingent Payment in accordance with
this Section 1.13, Purchaser shall deposit such amount with the Paying Agent, for the benefit of the holders of Shares in accordance with Section 1.9(e) hereof, as
follows: (A) the amount of the Contingent Payment in cash less
the Market Value of the Founder Share Consideration; and (B) a certificate representing the Founder
Share Consideration. The “ Earn-out Period ” shall mean the period from October 1, 2011 to September 30, 2012.
(b) Promptly following the expiration of the Earn-
out Period, but in no event more than 45 days thereafter, Purchaser shall deliver to the
Shareholder Representative a certificate setting forth, in reasonable detail, Purchaser’s calculation of the Company’
s performance in respect of the Milestones during
the Earn-out Period and the resulting amount of the Contingent Payment, if any (the “ Earn-out Statement ”).
(c) Following the delivery by Purchaser of the Earn-
out Statement, the Shareholder Representative and his representatives shall be given such
access as they may reasonably require during Purchaser’
s normal business hours (or such other times as the parties may agree) and upon reasonable notice to those
books and records of the Company in the possession of, and/or under the control of, Purchaser, and access to such personnel or representatives of the Company and
Purchaser as they may reasonably require for the purposes of confirming the Earn-out Statement.
(d) Within 45 days following receipt of the Earn-out Statement (the “ Milestone Objection Period ”),
the Shareholder Representative may
object to the Earn-out Statement by delivering to Purchaser a certificate executed by the Shareholder Representative setting forth the Shareholder Representative’
s
calculation of Company’s performance in respect of the Milestones and the resulting amount of the Contingent Payment (the “ Milestone Objection Notice ”).
If the
Shareholder Representative fails to deliver such Milestone Objection Notice within the Milestone Objection Period, then the calculation by Purchaser of the amount of
the Contingent Payment shall be deemed finally determined.
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