Incredimail 2011 Annual Report Download - page 165

(iv) Search Functionality : The Company shall have maintained Search Functionality throughout the Earn-out Period. “
Search
Functionality ” shall mean that each new Windows PC Direct User of the Company’s product in English, during the process of download thereof, is offered Parent’
s
search service, as described in Schedule 1.13(h) attached hereto; provided, however, that during the first thirty days following the Effective Time, the Search
Functionality shall be required to be maintained for the MSN channel only, and provided further that Search Functionality shall be implemented (i) for the Company's
other channels as soon as practicable during such thirty-
day period and (ii) in other languages and for Mac Direct Users of the Company's product as soon as
practicable after being made available by Parent. This milestone shall be deemed to be not satisfied if (A) Search Functionality does not function for three consecutive
days and the Company fails to restore Search Functionality within seven days after it becomes aware of such problem or (B) Search Functionality does not function for
an aggregate of 21 days during the Earn-out Period.
(i) If all four of the Milestones shall have been met by the Company, then the amount of the Contingent Payment shall be the amount
determined as follows: the product of (x) eight million U.S. Dollars ($8,000,000), and (y) one minus a fraction, the numerator of which shall be *** minus the Net
Revenue rounded to the nearest dollar (provided that the numerator shall not be lower than zero), and the denominator of which shall be ***; provided that the
maximum Contingent Payment Amount shall be eight million U.S. Dollars ($8,000,000). For the avoidance of doubt, if any of the four Milestones is not met by the
Company, then the amount of the Contingent Payment shall be zero.
1.14 Parent’s Undertakings . Parent undertakes that:
(a) During the Earn-
out Period, it shall provide resources to the Company to enable the Company to meet the Milestones consistent with the
Business Plan, provided, however, that if (i) the Company’s actual cumulative Net Revenue for any period of three consecutive calendar months during the Earn-
Out
Period is less than *** of the projected Net Revenue for such period set forth in the Business Plan or (ii) the Company's actual cumulative Net Revenue from the
commencement of the Earn-
out Period through the end of any calendar month shall be *** or more lower than the projected Net Revenue for such period set forth in
the Business Plan, Parent shall be entitled to make changes to the Business Plan in its sole discretion, even if such changes adversely affect the Company's ability to
meet the Milestones.
(b) During the Earn-
out Period, it shall use its best efforts to ensure that no covenants in its credit agreements or indentures will restrict its
ability to pay the Deferred Amount or the Contingent Payment.
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