Citation: 2C_731/2017 E. 3.3

3.3. Zum Kaufpreis enthält das "Share Purchase Agreement" vom 1. Juni 2012 in Ziff. 2.2.1 folgende Angaben: "The consideration for the shares consists of (i) a closing payment according to the section 2.2.2; (ii) an Escrow Amount for representations and warranties according to section 2.2.3; and (iii) a holdback for sellers'engagement according to section 2.2.4 totally amounting to CHF 18'630'000.-- (the 'Purchase Price'). In addition to the Purchase Price the Sellers are entitled to an earn-out component set out in section 2.2.5 amounting to CHF 10'000'000 at the maximum (the 'Earning-Out). This amounts to a total value of the shares of CHF 28'630'000 at the maximum." Der Holdback ist in Ziff. 2.2.4. des "Share Purchase Agreement" geregelt. Ziff. 2.2.4 lautet wie folgt: "Holdback for Sellers' Engagement At Closing Date the Buyer shall be entitled to withhold an amount of CHF 3'102'750 from the Purchase Price to secure the Sellers' employment agreement as defined in Annex 13 and the reseller agreement between the Company and E.________, a company belonging to F.________ as defined in Annex 14. This holdback shall be paid to the Sellers according to the following principles: 30 % of this holdback amounting to CHF 930'825 shall be paid after 18 months from Closing Date and the remaining holdback amounting to CHF 2'171'925 shall be paid after 36 months from Closing Date by the Buyer to the Sellers, if and to the extent the Sellers are still employed by the Company and the reseller agreement between the Company and E.________, is still valid and effective. A Sellers proportion of the remaining holdback (calculating according to his proportion of the shares) under this section 2.2.4 shall be apid immediately to the Sellers in case of the respective Sellers death, disability, accident, sickness or other reasons which lead to unemployability during the 36 months from Closing, or termination by the Buyer or the Company for no cause, or if a Seller leaves the Company for cause or good reason or by mutual agreement. The same shall apply analogously to F.________ who will not be employed by the Company but will be engaged in a reseller agreement with the Company which will be entered into the Company and F.________'s company E.________. If one or more Sellers cease to work for the Company prior to the lapse of 18 months, respectively prior to the lapse of 36 months from Closing Date and none of the mentioned reasons, which would also lead to the pay out of the holdback, are met, the remaining holdback shall in this case be reduced as follows: (i) If one Seller ceases to work for the Company prior to the lapse of 18/36 months from Closing Date, the remaining holdback is reduced by the amount that equals 1.3 times of the respective Sellers' proportion of the remaining holdback (calculated according to his proportion (calculated according to his proportion of the Shares). (ii) If two of the Sellers cease to work for the Company prior to the lapse of 18/36 months from Closing Date, shall it be together or subsequently, the remaining holdback is reduced by the amount that equals 1.5 times of the respective Sellers' proportions of the remaining holdback (calculated according to their proportions of the Shares). (iii) If three or more of the Sellers cease to work for the Company prior to the lapse of 18/36 months from Closing Date, shall it be together or subsequently, the remaining holdback is reduced by the amount that equals 1.7 times of the respective Sellers' proportion of the remaining holdback (calculated according to their proportions of the Shares). For the sake of clarity, the following is a hypothetical example: Should one of the Sellers who held 10 % of the Shares cease to work for the Company two months after Closing Date, the remaining holdback (CHF 3'102'750) is reduced by 13 % (10 % x 1.3) to CHF 2'699'392.5 18 months from Closing Date 30 % of the now remaining holdback (CHF 2'699'392.5) amounting to CHF 809'817.75 shall be paid to the Sellers. Should another Seller who held 20 % of the Shares then cease to work for the Company 20 months after Closing Date, the now remaining holdback (CHF 1'889'574.75) is reduced by another 30 % (20 % x 1.5) to CHF 1'322'702.33. After the lapse of 36 months from Closing Date the now remaining holdback (CHF 1'322'702.33) shall be paid to the Sellers. The holdback amount of CHF 3'102'750 constitutes the cap for the Shareholders' potential liability for Sellers' Employment and the Reseller Agreement of F.________. The Holdback instalments shall be paid to Buyer to Sellers, by wire transfer in immediately available funds, to the bank accounts of the Sellers and broker, as specified in Annex 11."