Incredimail 2012 Annual Report Download - page 302

(b) If the Share Purchase is consummated, recovery by way of the Set-
off Right shall constitute the
sole and exclusive monetary remedy of the Indemnified Persons for the indemnity obligations under this Agreement for
the matters listed in Section 9.1(a)(i) and (ii) (the “ General Indemnification Cap ”),
except (i) any failure of any of the
representations and warranties contained in Section 2.1 (Organization, Standing, Power and Subsidiaries), Section 2.2
(Capital Structure), Section 2.3 (Authority; Noncontravention), Section 2.9 (Intellectual Property), subject to the IP
Infringement Qualifier, Section 2.10 (Taxes), Section 3.1 (Power and Capacity), Section 3.2 (Enforceability;
Noncontravention), Section 3.3 (Title to Shares and Section 3.5 (Securities Laws) (to the extent such failure would
negatively impact an exemption from registration of the issuance of Purchaser Ordinary Shares pursuant to applicable
securities laws) (collectively, the “ Special Representations ”)
to be true and correct as aforesaid and (ii) the matters listed
in clauses (iii) – (xi) of Section 9.1(a) (clauses (i) and (ii) collectively, the “ Fundamental Claims ”),
for which the
Indemnified Persons shall first have the right to obtain indemnification by way of the Set-
off Right, and second, bring a
claim against the Indemnifying Parties, all in accordance with this ARTICLE 9 .
(c) In the case of any Fundamental Claim and subject to Section
9.1(b), after Purchaser (on behalf
of itself or other Indemnified Persons) shall have set off the Maximum Set-off Amount by way of the Set-
off Right (after
taking into account all other claims made by way of the Set-off Right) (in the case of a Fundamental Claim during the Set-
off Period), each Indemnifying Party shall be liable for such Person’
s Pro Rata Share of the amount of any Indemnifiable
Damages resulting therefrom; provided, however, that such liability shall be limited to: (i) in case of breach of the
representations and warranties contained in Section 2.9, 60% of such Person’
s Pro Rata Share of the Aggregate
Consideration actually received by such Indemnifying Party, and (ii) in case of other Fundamental Claims, such Person’
s
Pro Rata Share of the Aggregate Consideration actually received by such Indemnifying Party, except that in the case of a
breach of any of the representations and warranties contained in Section 3.3 (Title to Shares), such Person’
s Pro Rata
Share of the Aggregate Consideration plus the reasonable fees and expenses and other costs incurred by Purchaser to cure
such breach.
(d) Notwithstanding anything contained herein to the contrary and subject to limitations set forth in
clauses (b) and (c) above, in no event shall the maximum aggregate liability of all the Indemnifying Parties together under
this Agreement exceed the Aggregate Consideration actually paid to the Indemnifying Parties (other than, with respect to
such Indemnifying Party, for any fraud committed by such Indemnifying Party or as a result of the final clause of Section
9.2(c)).
(e) Notwithstanding anything contained herein to the contrary, for purposes of computing the
amount of any Indemnifiable Damages incurred, there shall be deducted an amount equal to the amount of:
(i) any insurance proceeds actually received from any third-
party insurer in connection with such
Indemnifiable Damages prior to the end of the applicable Set-off Period;
(ii) indemnity or contribution amounts actually received from third parties (net of applicable costs of recovery
or collection thereof) prior to the end of the applicable Set-off Period; and
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