OR
LOSS CARRY-FORWARD (PERTES ANTÉRIEURES) SHALL NOT BE TAKEN INTO ACCOUNT FOR THE
PURPOSES OF CALCULATING THE EARN OUT.
7.1.2
LESS ANY DIVIDENDS DISTRIBUTED BY THE COMPANY AFTER
JANUARY 1, 2007, OTHER THAN THE DISTRIBUTION TO BE MADE IN 2007 AND PERTAINING
TO THE PROFITS FOR FISCAL YEAR 2006.
7.2
FOR THE AVOIDANCE OF DOUBT, THE EARN OUT WILL NOT
INCLUDE ANY PROFITS MADE BEFORE JANUARY 1, 2007 AND IN THE EVENT THE COMPANY
WOULD HAVE MADE NO PROFITS DURING THE INTERIM PERIOD, THEN THE AMOUNT OF THE
EARN OUT SHALL BE EQUAL TO ZERO AND NO EARN OUT SHALL BE PAID.
7.3
IN ORDER TO BE ABLE TO CALCULATE THE EARN OUT, THE
GRANTORS WILL DRAW UP THE BALANCE SHEET (BILAN) OF THE COMPANY AS OF THE CLOSING
OF THE INTERIM PERIOD AND THE PROFIT AND LOSS ACCOUNTS FOR THE INTERIM PERIOD
(TOGETHER THE "INTERIM FINANCIAL STATEMENTS"), AS SOON AS POSSIBLE AFTER THE END
OF THE INTERIM PERIOD. THE GRANTORS SHALL PROVIDE A DRAFT OF THE INTERIM
FINANCIAL STATEMENTS TO THE BENEFICIARY TOGETHER WITH THE PROPOSED AMOUNT OF THE
EARN OUT CALCULATED AS SET FORTH ABOVE.
7
THE BENEFICIARY SHALL NOTIFY THE GRANTORS WITHIN THIRTY (30) DAYS OF RECEIPT OF
THE DRAFT INTERIM FINANCIAL STATEMENTS WHETHER OR NOT IT AGREES ON THE DRAFT
INTERIM FINANCIAL STATEMENTS PREPARED BY THE GRANTORS AND ON THE CALCULATION OF
THE EARN OUT MADE BY THE GRANTORS.
IF THE BENEFICIARY NOTIFIES THE GRANTORS ITS
DISAGREEMENT ON THE DRAFT INTERIM FINANCIAL STATEMENTS AND/OR ON THE CALCULATION
OF THE EARN OUT (THE "NOTICE OF NON-ACCEPTANCE"), THEN THE EARN OUT SHALL BE
CALCULATED BY THE EXPERT AS SET OUT IN SCHEDULE A.
7.4
WITHIN TEN (10) DAYS AFTER FINAL DETERMINATION OF THE
INTERIM FINANCE STATEMENTS AND FINAL CALCULATION OF THE EARN OUT, EITHER BY
MUTUAL CONSENT OF THE BENEFICIARY AND THE GRANTORS OR BY THE EXPERT, THE EARN
OUT WILL BE PAID TO THE GRANTORS BY CHECK OR BANK TRANSFER. THE EARN OUT SHALL
BE PAID TO THE GRANTORS PRORATA THE NUMBER OF OPTION SHARES SOLD BY EACH OF
THEM.
8
TRANSFER - OWNERSHIP
8.1
IN THE SEVENTH PARAGRAPH OF ARTICLE 7.3 OF THE
AGREEMENT, THE CLAUSE "NOTWITHSTANDING ARTICLE 7.2.2 HERE ABOVE" IS DELETED IN
ITS ENTIRETY AND REPLACED BY "NOTWITHSTANDING ARTICLE 7.2.3 HERE ABOVE."
9
GENERAL
9.1
THIS AMENDMENT SHALL BE EFFECTIVE UPON THE AMENDMENT
EFFECTIVE DATE, WHEREUPON THE AGREEMENT SHALL BE, AND HEREBY IS, AMENDED AS SET
FORTH HEREIN; PROVIDED THAT THIS AMENDMENT SHALL NOT BE EFFECTIVE, AND THE
PARTIES SHALL HAVE NO OBLIGATIONS UNDER THIS AMENDMENT, UNLESS AND UNTIL THE
DISTRIBUTION AGREEMENT AMENDMENT IS EXECUTED BY THE COMPANY AND THE BENEFICIARY.
9.2
ON AND AFTER THE AMENDMENT EFFECTIVE DATE, EACH
REFERENCE IN THE AGREEMENT TO "THIS AGREEMENT," "HEREUNDER," "HEREOF," "HEREIN"
OR WORDS OF LIKE IMPORT SHALL MEAN AND BE A REFERENCE TO THE AGREEMENT AS
AMENDED HEREBY.
9.3
EXCEPT AS EXPRESSLY AMENDED BY THIS AMENDMENT, THE
AGREEMENT SHALL REMAIN IN FULL FORCE AND EFFECT.
9.4
THIS AMENDMENT MAY BE EXECUTED IN ONE OR MORE
COUNTERPARTS,