Incredimail 2011 Annual Report Download - page 206

(e) by Purchaser, if (i) the Company shall breach any representation, warranty, obligation or agreement hereunder such that the conditions
referred to in Section 7.1 or Section 7.2 would not be satisfied and such breach shall not have been cured within seven (7) Business Days following written notice of
such breach, provided
that the right to terminate this Agreement by Purchaser under this Section 9.1(e) shall not be available where Parent, Purchaser or Merger Sub is
at that time in breach of this Agreement, (ii) the board of directors of the Company shall have withdrawn or modified its recommendation of this Agreement or the
Merger in a manner adverse to Parent or Purchaser or recommended, endorsed, accepted or agreed to an Acquisition Transaction (except with regard to Company
Stock Options or pending Company Warrants set forth in Part 2.3
of the Disclosure Schedule) or shall have resolved to do any of the foregoing or the approval of the
Shareholders of this Agreement or the Merger shall have been rescinded or invalidated, (iii) the Company or any of its respective officers, directors, employees or
other agents, shall have failed to comply with Section 5.2 or (iv) there shall have been an event such that any of the conditions set forth in Section 7.1 would be
incapable of being satisfied; or
(f) by the Company, if (i) Parent, Purchaser or Merger Sub shall breach any representation, warranty, obligation or agreement hereunder such
that the conditions referred to in Section 8.1 or Section 8.2 would not be satisfied and such breach shall not have been cured within seven (7) Business Days following
written notice of such breach, provided
that the right to terminate this Agreement by the Company under this Section 9.1(f) shall not be available where the Company
is at that time in breach of this Agreement; (ii) the board of directors of Parent, Purchaser or Merger Sub shall have withdrawn or modified its recommendation of this
Agreement or the Merger; or (iii) there shall have been an event such that any of the conditions set forth in Section 8.1 would be incapable of being satisfied;.
9.2 Termination Procedures
. If Purchaser wishes to terminate this Agreement pursuant to Section 9.1(a), Section 9.1(b) or Section 9.1(e), Purchaser
shall deliver to the Company a written notice stating that Purchaser is terminating this Agreement and setting forth a brief description of the basis on which Purchaser
is terminating this Agreement. If the Company wishes to terminate this Agreement pursuant to Section 9.1(a), Section 9.1(c) or Section 9.1(f), the Company shall
deliver to Purchaser a written notice stating that the Company is terminating this Agreement and setting forth a brief description of the basis on which the Company is
terminating this Agreement.
9.3 Effect of Termination
. If this Agreement is terminated pursuant to Section 9.1, all further obligations of the parties under this Agreement shall
terminate; provided, however
, that: (a) no party shall be relieved of any obligation or liability arising from any prior breach by such party of any provision of this
Agreement; and (b) the parties shall, in all events, remain bound by and continue to be subject to the provisions set forth in Sections 6.2 and 11 herein.
10.1 Survival of Representations, Etc .
(a) The representations and warranties made by the Company (including the representations and warranties set forth in Section 2 and the
representations and warranties of the Company set forth in any closing certificate) are deemed to be made on the date of this Agreement and at the Closing, and shall
survive the Closing and shall expire on the 18-month anniversary of the Closing Date (the “ Termination Date ”); provided, however
, that if, at any time prior to the
Termination Date, any Parent Indemnitee delivers to the Shareholder Representative a written notice alleging the existence of an incompleteness of, inaccuracy in or a
breach of any of the representations and warranties made by the Company (and setting forth in reasonable detail the basis for such Parent Indemnitee’
s belief that such
an incompleteness, inaccuracy or breach may exist) and asserting a claim for recovery based on such alleged incompleteness, inaccuracy or breach, then the claim
asserted in such notice shall survive the Termination Date until such time as such claim is fully and finally resolved; provided , further
, that notwithstanding the
foregoing, the representations and warranties contained in Section 2.9 ( Intellectual Property) (the “ IP Representation ”),
as modified by the proviso contained in
Section 10.5(viii), shall survive the Closing and the Termination Date and shall expire on the 30-month anniversary of the Closing Date; and provided , further
, that
notwithstanding the foregoing, the representations and warranties contained in Sections 2.1(a) ( Due Organization ), 2.1(e) ( Investments ), 2.3 ( Capitalization
), 2.14
( Tax Matters ), 2.20 ( Authority ) and 2.23 ( Brokers ) (collectively, the “ Special Representations ”)
shall survive the Closing and the Termination Date and shall
expire on the expiration date of the applicable statute of limitations.
Section 10.
INDEMNIFICATION, ETC.
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