Incredimail 2012 Annual Report Download - page 235

(b) In the event that the audited consolidated statements of income of Purchaser, prepared in
accordance with GAAP consistently with past practice, for the year ended December 31, 2013 (the "
2013 Financial
Statements
") shall not have been approved by Purchaser's board of directors prior to the Contingent Payment Date, then
(i) if there shall have been no Applicable Change prior to the Contingent Payment Date, then the Applicable Change
Payment shall be paid by Purchaser to the Paying Agent on the Contingent Payment Date and shall be distributed to the
Company Securityholders pursuant to Section
1.3(c) and (ii) if either the Lower Milestone or the Higher Milestone (each,
a " Milestone
") is reasonably likely to be satisfied (based on Purchaser's internal financial information presented to
Purchaser’
s board of directors), Purchaser shall pay either the Higher Milestone Payment (less the amount of the
Applicable Change Payment, if applicable) or the Lower Milestone Payment, as applicable (each, a "
Milestone Payment
") to the Paying Agent, and shall instruct the Paying Agent to distribute the applicable Milestone Payment to the Company
Securityholders. Promptly following the approval of the 2013 Financial Statements, Purchaser and the Securityholders
shall conduct a final accounting to implement the terms of Section 1.6(a), to the extent necessary.
1.7 Waiver and Release of Claims .
(a) Effective for all purposes as of the Closing, each Company Shareholder acknowledges and
agrees on behalf of itself and each of its agents, trustees, beneficiaries, directors, officers, affiliates, subsidiaries, estate,
successors and assigns (each, a “ Releasing Party ”)
that each hereby releases and forever discharges the Company, each
Company Securityholder and Purchaser (each a “ Beneficiary ”) and each of such Beneficiary’
s respective subsidiaries,
affiliates, directors, officers, employees, representatives, agents, members, shareholders, successors, predecessors and
assigns (each, a “ Released Party ” and collectively, the “ Released Parties ”)
from any and all Shareholder Claims such
Releasing Party may have or assert against any of the Released Parties, from the beginning of time through the time of the
Closing, in each case whether known or unknown, or whether or not the facts that could give rise to or support a
Shareholder Claim are known or should have been known, except with regard to its rights pursuant to this Agreement and
the transactions contemplated hereby. In this Agreement a “ Shareholder Claim ”
shall mean: (i) any claim or right to
receive any Company Shares or Company Options other than the Company Shares or Company Options set forth next to
such Person's name on the Signature Page of this Agreement and on the Signing Spreadsheet, as updated by the Closing
Spreadsheet and such Person’
s Closing Allocation Certificate; (ii) any claim or right to receive any portion of the
Aggregate Consideration pursuant to the terms of this Agreement (or a different allocation between cash and Purchaser
Ordinary Shares, including the possibility to receive only cash without any Purchaser Ordinary Shares), other than as
specifically set forth in the Closing Spreadsheet and in such Person’
s Closing Allocation Certificate and applicable to such
Company Shareholder; (iii) any claim with respect to the authority or enforceability to enter into this Agreement, the
Share Purchase or any of the transactions contemplated hereby; or (iv) any rights, licenses, claims or interest whatsoever,
including without limitation, to royalties, fees or other compensation with respect to any Intellectual Property developed
for the Company or the Israeli Subsidiary.
15