Incredimail 2012 Annual Report Download - page 300

ARTICLE 9
I NDEMNIFICATION AND SET-OFF
9.1 Indemnification .
(a) Subject to the limitations set forth in this ARTICLE 9
, from and after the Closing, the Company
Shareholders and Company Optionholders (the “ Indemnifying Parties ”),
shall severally and not jointly, in proportion to
each such Indemnifying Party’
s Pro Rata Share, indemnify and hold harmless Purchaser, the Company and the Israeli
Subsidiary and their respective Representatives, successors and permitted assigns, and each Person, if any, who controls or
may control Purchaser within the meaning of the Securities Act (each of the foregoing being referred to individually as an
“ Indemnified Person ” and collectively as “ Indemnified Persons ”)
from and against, any and all direct claims, losses,
Liabilities, damages, actions, fees, lost profit, Tax, deficiencies, assessments, judgments, awards, claim of any kind,
interest, penalties, reductions in value, costs and expenses, including, without limitation, reasonable costs of investigation
and defense and reasonable fees and expenses of lawyers, experts and other professionals, whether or not due to a third
party claim (collectively, “ Indemnifiable Damages ”),
arising out of, resulting from or in connection with (i) any failure
of any representation or warranty made by the Company, subject to the IP Infringement Qualifier, or any of the Company
Shareholders in this Agreement or the Company Disclosure Letter (including any exhibit or schedule to the Company
Disclosure Letter), or made by any Company Optionholder by way of an Optionholder Instrument, to be true and correct
as of the Agreement Date and as of the Closing Date as though such representation or warranty were made as of the
Closing Date (except in the case of representations and warranties which by their terms speak only as of a specific date or
dates, which representations and warranties shall be true and correct as of such date), (ii) any failure of any certification,
representation or warranty made by the Company in any certificate delivered to Purchaser pursuant to Section
1.2(b) of
this Agreement (other than the Closing Spreadsheet, the Company Net Working Capital Certificate, the Company Cash
Statement or the Transaction Expenses Certificate) to be true and correct as of the date such certificate is delivered to
Purchaser, (iii) any inaccuracies in the Closing Spreadsheet, the Company Net Working Capital Certificate, the Company
Cash Statement or the Transaction Expenses Certificate (without duplication to the working capital adjustment pursuant to
Section
1.5), (iv) any breach of any of the covenants or agreements made by the Company, the Israeli Subsidiary or the
Company Shareholders in this Agreement or any other agreements contemplated by this Agreement or the Share Purchase,
(v) any Indemnifiable Transaction Expenses, (vi) the Specified Litigation Matters (as defined in Schedule 1.6
), (vii) any
Taxes for which the Company or the Israeli Subsidiary is or becomes liable for any Tax period ending on or before the
Closing Date and which are not reflected in the Company Financial Statements (without duplication with Section 6.18),
(viii) any amounts that are paid to any Person pursuant to any indemnification provisions under the Charter Documents as
in effect on the Agreement Date and pursuant to any indemnification agreements listed on Schedule 2.12
of the Company
Disclosure Letter (the “ Indemnification Agreements ”),
with respect to claims arising out of matters occurring at or prior
to the Closing, (ix) any fraud of a Company Shareholder or the Company or the Israeli Subsidiary or either of such entity's
officers, directors or employees that would qualify as a breach of a representation or warranty under subsection (i) above,
(x) to the extent not covered by any of the foregoing clauses, any claim by a Person alleging to be a holder of securities of
the Company or the Israeli Subsidiary, and (xi) to the extent not covered by any of the foregoing clauses, any Legal
Proceeding commenced by any Indemnified Person for the purpose of enforcing its rights under this ARTICLE 9
. For
purposes of this ARTICLE 9
, materiality standards or qualifications, and qualifications by reference to the defined term
“Material Adverse Effect”
in any representation, warranty or covenant shall not be taken into account in determining
whether a breach of or default in connection with such representation, warranty or covenant (or failure of any
representation or warranty to be true and correct) exists, or in determining the amount of any Indemnifiable Damages with
respect to such breach, default or failure to be true and correct. No Indemnifying Parties shall have any right of
contribution, indemnification or right of advancement from the Company or Purchaser with respect to any Indemnifiable
Damages claimed by an Indemnified Person for breaches of this Agreement by such Indemnifying Party, notwithstanding
anything to the contrary in the Indemnification Agreements.
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