Incredimail 2011 Annual Report Download - page 225

Legal Proceeding . “Legal Proceeding”
shall mean any claim, action, suit, litigation, arbitration, complaint, proceeding (including any civil, criminal,
administrative, investigative or appellate proceeding), hearing, inquiry, audit, examination or investigation commenced, brought, conducted or heard by or before, or
otherwise involving, any court or other Governmental Body or any arbitrator or arbitration panel.
Legal Requirement . “Legal Requirement”
shall mean any local, municipal, foreign or other law, statute, constitution, principle of common law, resolution,
ordinance, code, edict, decree, rule, regulation, ruling or requirement issued, enacted, adopted, promulgated, implemented or otherwise put into effect by or under the
authority of any Governmental Body.
Market Value . “Market Value”
of any Parent Shares shall mean (i) the average closing market price per Parent Share on the NASDAQ Stock Market for
the ten (10) trading days immediately preceding the Closing Date multiplied by (ii) such Parent Shares.
Material Adverse Effect . A “Material Adverse Effect”
on an Entity shall mean (i) a material adverse effect on the business, operations, assets, liabilities,
prospects, condition (financial or otherwise) or financial performance or results of such Entity and its subsidiaries, taken as a whole or (ii) any change, circumstance,
development, state of facts, event or effect that prevents
or materially impedes, interferes with, hinders or delays the consummation of the transactions contemplated
by this Agreement; provided, however , that none of the following shall be taken into account in determining whether there has been a “Material Adverse Effect”: (
1)
the effects of changes that are generally applicable to the industry in which the Company operates, provided
that the Company is not materially disproportionately
adversely affected thereby relative to other industry participants, (2) the effects of changes that are generally applicable to the economy in the United States,
provided
that the Company is not materially disproportionately adversely affected thereby relative to other industry participants, (3) any effects or changes directly resulting
from the public announcement of this Agreement, the transactions contemplated hereby or the consummation of such transactions, (4) the effects of the performance
by the parties hereto of their respective obligations under this Agreement or the effects of not taking any action prohibited by the terms hereof, (5) regulatory or
political conditions, or securities markets in the United States or worldwide or any outbreak of hostilities, terrorist activities or war, or any material worsening of any
hostilities, activities or war underway as of the date hereof, provided
that the Company is not materially disproportionately adversely affected thereby relative to other
industry participants, or (6) any change in Legal Requirement, provided
that the Company is not materially disproportionately adversely affected thereby relative to
other industry participants.
Net Value. “Net Value”
shall mean the excess, if any, of the Common Amount, as adjusted, over the exercise price of a Company Stock Option or Company
Warrant, as applicable.
Optionholder . “Optionholder” shall mean any Person holding a Company Stock Option.
Parent Indemnitees . “Parent Indemnitees”
shall mean each of Parent, Purchaser, the Surviving Corporation, Merger Sub, the successors and assigns of each
of the foregoing and the Representatives of each of the forgoing.
A
-
4