Incredimail 2011 Annual Report Download - page 223

Consideration Fraction . “Consideration Fraction”
as to any Shareholder or Optionholder or Warrantholder shall mean a fraction obtained by dividing (1)
such holder’s Holder Share Amount (excluding the Holder Preferred Share Amount) by (2) the Total Share Amount (excluding the Total Preferred Share Amount).
Consideration Fraction for Preferred Stock . “Consideration Fraction for Preferred Stock”
as to any Shareholder or Warrantholder shall mean a fraction
obtained by dividing (1) such holder’s Holder Preferred Share Amount by (2) the Total Preferred Share Amount.
Contract . “Contract”
shall mean any written, oral or other agreement, contract, subcontract, lease, promise, understanding, instrument, obligation, license,
arrangement, permit, concession, franchise, purchase order, sales order contract, note, bond, warranty, mortgage, indenture, deed of trust, loan, credit agreement,
insurance policy, benefit plan or legally binding commitment or undertaking of any nature.
Currently Proposed to be Conducted . “Currently Proposed to be Conducted” shall mean the Company’
s first release of each of the Smilebox for iPhone
product and the Print and Ship to Home service for PC and Mac computers, but excluding in all cases the Search Functionality.
Damages . “Damages”
shall include any loss, damage (including incidental damages but excluding consequential damages), injury, liability, claim, demand,
settlement, judgment, award, fine, penalty, Tax, fee (including reasonable attorneys’ fees), charge, cost (including costs of investigation) or expense of any nature.
Disclosure Schedule . “Disclosure Schedule” shall mean the schedule titled “Disclosure Schedule” (
dated as of the date of the Agreement) delivered to
Parent, Purchaser and Merger Sub on behalf of the Company.
Encumbrance . “Encumbrance”
shall mean any lien, pledge, hypothecation, charge, mortgage, security interest, encumbrance, claim, conditional and
installment sale agreement, option, right of first refusal, preemptive right, call, community property interest or restriction of any nature (including any restriction on
the voting of any security (including voting trust and voting agreement), any restriction on the transfer of any security or other asset, any restriction on the receipt of
any income derived from any asset, any restriction on the use of any asset and any restriction on the possession, exercise or transfer of any other attribute of ownership
of any asset). The grant of a non-
exclusive license, in itself, under or to the Company Intellectual Property shall not be considered to be an Encumbrance, unless the
Contract containing such license grant contains other terms that would be considered to be an Encumbrance.
Entity . “Entity” shall mean any corporation (including any non-
profit corporation), general partnership, limited partnership, limited liability partnership,
joint venture, estate, trust, company (including any limited liability company), firm or other enterprise, association, organization or entity.
Escrow Agreement . “Escrow Agreement”
shall mean the Escrow Agreement among Parent, Purchaser, the Company, the Shareholder Representative and
the Paying Agent to be entered into on or prior to the Closing Date in connection with this Agreement.
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