Incredimail 2012 Annual Report Download - page 291

(b) Prior to the Closing, the Company or the Israeli Subsidiary will purchase, for the benefit of the
Company Indemnified Parties, policies of directors’ and officers’ and fiduciary liability “tail” or “run-off”
insurance
providing for such coverage as the Company may determine in its sole discretion prior to the Closing; provided
,
however
, that any costs and expenses related thereto shall be considered a Transaction Expense. Purchaser shall, and
shall cause the Company to, maintain such policy in full force and effect, and continue to honor the obligations
thereunder.
(c) The provisions of clauses (a) and (b) of this Section 6.15
are intended to be for the benefit of,
and will be enforceable by, each Company Indemnified Party.
(d) The covenants under this Section 6.15
shall not provide indemnification with respect to a
Company Indemnified Party’
s liability for a claim for indemnification made by an Indemnified Person for breaches of this
Agreement by such Indemnified Person pursuant to ARTICLE 9 of this Agreement.
(e) In the event that the Company or any of its respective successors or assigns consolidates with or
merges into any other Person and is not be the continuing or surviving corporation or entity of such consolidation or
merger or transfers or conveys all or a majority of their properties and assets to any Person, then, and in each such case,
Purchaser shall cause proper provisions to be made so that the successors and assigns of the Company shall assume and
succeed to the obligations set forth in this Section 6.16 . The obligations of Purchaser and the Company under this
Section
6.15
shall not be terminated or modified in such a manner as to adversely affect any Company Indemnified Party to
whom this Section 6.16 applies without the express written consent of such affected Company Indemnified Party.
(f) Notwithstanding anything in this Section 6.15
to the contrary, no Person shall be entitled to
indemnification pursuant to this Section 6.15
for any matter involving fraud by such Person in connection with this
Agreement or the transactions contemplated thereby.
6.16 Closing Allocation Certificate; Exercise of Options; Optionholder Instrument . The Company shall cause each of the
holders of Company Options to execute (i) a Closing Allocation Certificate, in substantially the form attached hereto as Exhibit H (ii) a joinder
to this Agreement, in substantially the form attached hereto as Exhibit I , in the event such holder exercises any portion of his Company Options
prior to the Closing, and (iii) an Optionholder Instrument, in substantially the form attached hereto as Exhibit J (the “ Optionholder Instrument
”), in the event such Optionholder shall not exercise all of his Company Options prior to the Closing.
6.17 Domiciliation Ruling . The Company has filed the Domiciliation Application with the ITA on August 14, 2012, a true and
correct copy thereof is attached as Schedule 6.17 hereto. The parties will cause their respective Israeli counsel and their respective advisors and
accountants to cooperate and provide all information required and which is in their possession with respect to the Company’s preparation of any
written or oral submissions that may be necessary, proper or advisable to obtain the Domiciliation Ruling. The Company (prior to the Closing)
and the Shareholders' Agent (following the Closing), its representatives and advisors shall not make any application to, or conduct any
negotiation with, the ITA with respect to any matter relating to the subject matter of the Domiciliation Ruling without prior coordination with
Purchaser or its representatives and advisors, and will enable Purchaser's representatives and advisors to participate in all discussions and
meetings relating thereto. To the extent that Purchaser's representative and advisors elect not to participate in any meeting or discussion, the
representatives and advisors of the Company or the Shareholders' Agent, as the case may be, shall update Purchaser regarding the discussions
held. In any event, the final text of the Domiciliation Tax Ruling shall be subject to the prior written consent of Purchaser, which consent shall
not be unreasonably withheld or delayed, it being understood that Purchaser will give such consent if the Domiciliation Ruling does not affect
post-Closing tax periods Notwithstanding the foregoing, in the event that the Shareholders' Agent requests the payment of the Special Cash
Dividend prior to the receipt of the Domiciliation Ruling pursuant to Section 6.18(b), Purchaser shall be entitled to continue to pursue the
Domiciliation Ruling in its sole discretion, provided that the Domiciliation Ruling would not increase the Liability of the Company or the Israeli
Subsidiary for a pre-Closing tax period, without the prior written consent of the Shareholders' Agent, which consent will not be unreasonably
withheld or delayed.
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