Incredimail 2011 Annual Report Download - page 161

(b) The Company shall give Purchaser (i) prompt notice of any dissenters’
rights demands received by the Company for any Shares,
withdrawals of such demands and any other instruments served pursuant to the WBCA and received by the Company and (ii) the opportunity to participate in all
negotiations and proceedings with respect to such demands. The Company shall not, except with the prior written consent of Purchaser, which shall not be
unreasonably withheld, make any payment or agree to make any payment with respect to, or offer to settle or settle, any such demands. Each Dissenting Shareholder
who, pursuant to the provisions of the WBCA, becomes entitled to payment of the value of the Dissenting Shares will receive payment therefor but only after the value
therefor has been agreed upon or finally determined pursuant to such provisions. Any portion of the Share Amount that would otherwise have been payable with
respect to Dissenting Shares if such Shares were not Dissenting Shares will be retained by Purchaser.
1.12 Working Capital Adjustment .
(a)
Pursuant to Section 6.8 hereof, not less than two (2) Business Days prior to the Closing, the Company shall deliver to Purchaser a
certificate executed by the principal financial officer of the Company (in his or her capacity as such) detailing the Company’
s good faith best estimate of Company Net
Working Capital, including a draft of the Company’
s unaudited balance sheet as of the Closing Date prepared on a consistent basis with the Financial Statements (as
defined in Section 2.4 hereof) (the “ Company Net Working Capital Certificate ”).
The Company Net Working Capital Certificate shall be prepared by the
Company in accordance with GAAP consistently applied by the Company and in accordance with Schedule 1.12 and shall fairly and accurately present the Company’
s
good faith best estimate (based on reasonable assumptions) of the balance sheet of the Company and the estimated Company Net Working Capital as of the close of
business on the Closing Date. The Company Net Working Capital Certificate shall be used to reduce the Merger Consideration payable at the Closing to the extent, if
any, that the amount of Company Net Working Capital set forth therein shall be less than $346,000 (the " Working Capital Target
", and the amount of such
deficiency, if any, being referred to herein as the “ Working Capital Shortfall ”).
“ Company Net Working Capital ” means (A) the Company’
s total current assets as of the close of business on the Closing Date (as determined in
accordance with GAAP consistently applied by the Company) less (B) the Company’
s total current liabilities as of the close of business on the Closing Date (as
determined in accordance with GAAP consistently applied by the Company). The calculation of Company Net Working Capital shall be based on the Financial
Statements and the methodology relating thereto is set forth in Schedule 1.12
, which the parties agree will be the methodology used in determining the Company Net
Working Capital.
(b) Within 90 days after the Closing, Purchaser may object to the Company Net Working Capital calculations included in the Company Net
Working Capital Certificate (the “ NWC Calculations ”) by delivering to the Shareholder Representative a certificate (the “ Purchaser NWC Certificate ”)
executed
by Purchaser’s Chief Financial Officer (in his or her capacity as such), or a representative thereof, setting forth Purchaser’
s calculation of the Company Net Working
Capital as of the close of business on the Closing Date and the amount by which Company Net Working Capital as calculated by Purchaser is less than the Company
Net Working Capital set forth in the Company Net Working Capital Certificate. Any Purchaser NWC Certificate shall be prepared in accordance with GAAP and in
accordance with Schedule 1.12
and shall take into account any information not available to the parties at the time the Company Net Working Capital Certificate was
delivered.
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