Incredimail 2012 Annual Report Download - page 303

(iii) any Tax benefit actually realized as a result of the Indemnifiable Damages, i.e., the amount of Tax then
required to be paid has been reduced below the amount of Tax that otherwise would have been payable but for the deductibility of, or other Tax
benefit arising from, such Indemnifiable Damages.
(f) Other than in the case of the Specified Litigation Matters, the Indemnifying Parties shall not be
obligated or required to make any indemnification payment nor would they be subject to any liability pursuant to clause (i)
of Section
9.1(a) until such time as the total amount of all Indemnifiable Damages that have been suffered or incurred by
any Indemnified Persons exceeds an amount equal to $200,000 (the “ Basket Amount ” ).
If the total amount of such
Indemnifiable Damages exceeds the Basket Amount, then the Indemnified Persons shall be entitled to be indemnified
against and compensated and reimbursed for the entire amount of such Indemnifiable Damages, including the Basket
Amount.
(g) Notwithstanding anything herein to the contrary, nothing in this Agreement shall limit
Purchaser's right to specific performance or injunctive relief, or any right or remedy arising by reason of any claim of
fraud or intentional misrepresentation with the respect to this Agreement or any of the other ancillary agreements.
9.3 Period for Claims by way of Set-off Right . Subject to the other provisions of this ARTICLE 9 , the Set-
off Right shall be
used to indemnify Purchaser (on behalf of itself or any other Indemnified Person) for Indemnifiable
Damages pursuant to the indemnification
obligations of the Indemnifying Parties. In the event that an Applicable Change did not take place within the 12-
month period after the Closing,
the period during which claims for Indemnifiable Damages may be made and consideration set off for Indemnifiable Damages by way of the
Set-off Right (the “ Set-off Period ”) shall commence on the Closing Date and terminate on the 12–month anniversary of the Closing Date (the “
Initial Set
-off Period ”). In the event that an Applicable Change Announcement (as defined in Schedule 1.6
), if such announcement ultimately
results in an Applicable Change (as such terms are defined in Section 1.6(c)), shall occur during the Initial Set-off Period, then the Set-
off Period
shall be extended until the 18–
month anniversary of the Closing Date. For the avoidance of doubt, the Indemnified Persons may make a claim
for Indemnifiable Damages in respect of any Fundamental Claim even after the applicable Set-
off Period, but in such event, any amounts to be
paid by the Indemnifying Parties will be paid directly by the Indemnifying Parties and not from the Set-
off Amount, subject to the provisions of
Section 9.2 and Section 10.1. Notwithstanding anything contained herein to the contrary, such portion of the Set-
off Amount as in the
reasonable judgment of Purchaser may be necessary to satisfy any unresolved or unsatisfied claims for Indemnifiable Damages specified in any
Claim Certificate delivered to the Shareholders' Agent prior to the expiration of the applicable Set-
off Period shall be held by Purchaser until
such claims for Indemnifiable Damages have been resolved or satisfied.
9.4 Claims .
(a) On or before the last day of the applicable Set-
off Period, Purchaser may in good faith deliver to
the Shareholders' Agent a certificate signed by any officer of Purchaser (a “ Claim Certificate ”):
(
i) stating that an Indemnified Person has incurred, paid, reserved or accrued (in accordance with GAAP), or in
good faith believes that it is likely to incur, pay, reserve or accrue (in accordance with GAAP), Indemnifiable Damages (or that with respect to
any Tax matters, that any Tax Authority may raise such matter in audit of Purchaser or its Subsidiaries, which could give rise to Indemnifiable
Damages);
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