Incredimail 2011 Annual Report Download - page 151

AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this “ Agreement ”)
is made and entered into as of July 31, 2011, by and among INCREDIMAIL LTD., a
company organized under the laws of Israel (“ Parent ”), INCREDIMAIL INC., a corporation organized under the laws of Delaware wholly owned by Parent (“
Purchaser ”), SEDER MERGER INC., a corporation organized under the laws of Washington wholly owned by Purchaser (“ Merger Sub ”),
SMILEBOX, INC., a
corporation organized under the laws of Washington (the “ Company ”), ANDREW WRIGHT (“ Founder ”)
and SHAREHOLDER REPRESENTATIVE
SERVICES LLC, a Colorado limited liability company, solely in its capacity as agent of the Participating Securityholders (the “
Shareholder Representative
”). Certain other capitalized terms used in this Agreement are defined below or in Exhibit A .
W I T N E S S E T H:
WHEREAS, Parent, Purchaser, Merger Sub and the Company have approved the acquisition of the Company by Purchaser, by means of the merger of
Merger Sub with and into the Company, upon the terms and subject to the conditions set forth in this Agreement;
WHEREAS, the board of directors and the requisite shareholders of the Company (the “ Shareholders ”)
have approved the Merger upon the terms and
subject to the conditions set forth herein;
WHEREAS, Parent, Purchaser, Merger Sub, Founder and the Company desire to make certain representations, warranties, covenants and agreements in
connection with the Merger and also to prescribe various conditions to the consummation thereof; and
NOW, THEREFORE, in consideration of the foregoing and the representations, warranties, covenants and agreements herein contained, the parties hereto,
intending to be legally bound, hereby agree as follows:
1.1 The Merger
. At the Effective Time (as defined below) and upon the terms and subject to the conditions of this Agreement and in accordance
with the Washington Business Corporation Act (the “ WBCA ”), Merger Sub shall be merged with and into the Company (the “ Merger ”).
Following the Merger,
the Company shall continue as the surviving corporation (the “ Surviving Corporation ”) and the separate corporate existence of Merger Sub shall cease.
1.2 Effective Time
. Subject to the terms and conditions set forth in this Agreement, on the Closing Date (as defined below): (a) Articles of Merger
in substantially the form of Exhibit B (the “ Articles of Merger ”)
shall be duly executed and thereafter delivered to the Secretary of State of the State of Washington
for filing pursuant to Section 23B.11.050 of the WBCA; and (b) the parties shall make such other filings with the Secretary of State of the State of Washington as shall
be necessary to effect the Merger. The Merger shall become effective at such time as the Articles of Merger are duly filed with the Secretary of State of the State of
Washington in accordance with Section 23B.11.050 of the WBCA or such later time as Purchaser and the Company may agree upon and as may be set forth in the
Articles of Merger (the time the Merger becomes effective being referred to herein as the “ Effective Time ”).
Section 1.
THE MERGER.