Incredimail 2012 Annual Report Download - page 309

(b) Notwithstanding the provision of Section 9.7(a), the Shareholders’
Agent shall have the right in
its sole discretion, with counsel reasonably satisfactory to Purchaser, to conduct the defense of and to settle or resolve any
claim that may give rise to indemnification (i) under Section 9.1(a)(vii) and any related tax audits and (ii) under Section
9.1(a)(x) (collectively, an “ Excluded Claim ”),
provided that any settlement or compromise of an Excluded Claim shall
require the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed). Purchaser
shall promptly notify the Shareholders’
Agent of any communication made by the ITA or other Person that may
reasonably lead to an Excluded Claim. The costs and expenses incurred by Shareholders’
Agent in connection with the
defense of an Excluded Claim shall be borne by the Indemnifying Parties. Purchaser shall have the right to receive copies
of all pleadings, notices and communications with respect to an Excluded Claim and shall be entitled, at its sole option and
expense, to participate in, but not to determine or conduct, any defense of an Excluded Claim or settlement negotiations
with respect to an Excluded Claim.
9.8 Treatment of Indemnification Payments . The Indemnifying Parties, the Shareholders’
Agent and Purchaser agree to treat
(and cause their Affiliates to treat) any payment received or set-off pursuant to this ARTICLE 9
as adjustments to the Aggregate Consideration
for all Tax purposes, to the maximum extent permitted by Legal Requirements.
9.9 Form of Indemnification Payments .
(a) For any indemnification obligation of any Indemnifying Party owing to Purchaser (but not to
any other Indemnified Person) which is not satisfied by way of the Set-off Right pursuant to this ARTICLE 9
, such Indemnifying Party may, in
its sole discretion, satisfy a portion of such indemnification obligation (the " Equity Portion
") in the form of Purchaser Ordinary Shares issued
to such Indemnifying Party pursuant to this Agreement. Such Indemnifying Party's Equity Portion shall equal the portion of the consideration
paid to such Indemnifying Party (including any consideration paid to the Paying Agent for the benefit of such Indemnifying Party) in the form of
Purchaser Ordinary Shares, as set forth in the Closing Spreadsheet. The number of Purchaser Ordinary Shares that may be paid pursuant to this
Section 9.9(a) shall be determined by dividing (x) the amount of Indemnifiable Damages to be paid by such Indemnifying Party multiplied by
such Indemnifying Party's Equity Portion by (y) the Market Value; provided, however, that Seller shall pay in cash to the extent that (i) such
Indemnifiable Damages consist of out-of-
pocket expenses of Purchaser or (ii) in the reasonable opinion of counsel to Purchaser, Purchaser is
prohibited by the Israeli Companies Law, 1999 (without a court order) to repurchase its shares.
(b) Purchaser shall pay any of its indemnification obligations pursuant to Section 9.1(b) in cash.
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