Incredimail 2012 Annual Report Download - page 304

(ii) stating the amount of such Indemnifiable Damages (which, in the case of Indemnifiable Damages not yet
incurred, paid, reserved or accrued, is likely to be the maximum amount believed by Purchaser (acting in good faith) to be incurred, paid,
reserved or accrued (in accordance with GAAP); and
(iii) specifying in reasonable detail (based upon the information then possessed by Purchaser) the individual
items of such Indemnifiable Damages included in the amount so stated and the nature of the claim to which such Indemnifiable Damages are
related.
(b) If Purchaser shall have delivered a Claim Certificate to the Shareholders' Agent, Purchaser may
set off from the Deferred Payment, or in the event that an Applicable Change shall have occurred during the Initial Set-
off
Period, from the Contingent Payment, if any, an amount of cash equal to the amount of any Indemnifiable Damages
corresponding to such claim or claims as set forth in such Claim Certificate, provided , however
, that Purchaser may not
hold back more than the Maximum Set-
off Amount from the Deferred Payment or more than two million five hundred
thousand U.S. Dollars ($2,500,000) from the Contingent Payment, if any, provided , further
, that in any case Purchaser
may not set off pursuant to the Set-off Right an aggregate amount in excess of the Maximum Set-off Amount.
(c) The Shareholders’ Agent may object in a written statement signed by the Shareholders’
Agent
(an “ Objection Certificate ”)
to any claim or claims made in a Claim Certificate, provided that such written Objection
Certificate shall have been delivered to Purchaser prior to the expiration of 20 Business Days following the delivery of
such Claim Certificate (the " Objection Period "). Failure of the Shareholders’
Agent to deliver such Objection Certificate
within such Objection Period shall be deemed consent of Shareholders' Agent to Purchaser's set off of the Set-
off
Amount. Shareholders' Agent may not deliver an Objection Certificate after the Objection Period. Claims specified in any
Claim Certificate to which there is no Objection Certificate delivered by the Shareholders' Agent by the expiration of the
Objection Period, shall be deemed final and binding.
(d) In the case of any claim in excess of the Maximum Set-off Amount or made after the Set-
off
Period, if Purchaser believes it is entitled to indemnification pursuant to this ARTICLE 9
, Purchaser may make an
indemnification claim by delivering a Claim Certificate to the Shareholders' Agent, which Claim Certificate shall include
the information set forth in subsections 9.4(a)(i)-(
iii). The Shareholders' Agent may object in an Objection Certificate to
any claim or claims made in a Claim Certificate, provided that such written Objection Certificate shall have been delivered
to Purchaser prior to the expiration of the Objection Period. Failure of the Shareholders’
Agent to deliver such Objection
Certificate within such Objection Period shall be deemed consent of Shareholders' Agent to Purchaser's
claim. Shareholders' Agent may not deliver an Objection Certificate after the Objection Period. Claims specified in any
Claim Certificate to which there is no Objection Certificate delivered by the Shareholders' Agent by the expiration of the
Objection Period, shall be deemed final and binding. If the Shareholders’
Agent delivers such Objection Certificate
within the Objection Period, Purchaser and the Shareholders’
Agent shall attempt in good faith for 45 days after
Purchaser’
s receipt of such Objection Certificate to resolve such objection. If they shall succeed in reaching agreement on
their respective rights with respect to any of such claims, Purchaser and the Shareholders' Agent shall promptly prepare
and sign a memorandum setting forth such agreement. If Purchaser and the Shareholders' Agent reach an agreement with
respect to any claim brought by Purchaser, the Shareholders' Agent shall instruct each Indemnifying Party to pay
Purchaser such Person’
s Pro Rata Share of the amount of Indemnifiable Damages agreed upon or, if the claim is covered
by Section 9.1(b), the Shareholders' Agent shall instruct the Breaching Shareholder to pay the amount of Indemnifiable
Damages agreed upon. Should they be unable to agree as to any particular item or items or amount or amounts within
such time period, then such dispute shall be resolved in accordance with Section 9.5 below.
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