Incredimail 2012 Annual Report Download - page 333

5.3 All fees and expenses of the Indemnified Party (including reasonable fees and expenses to the extent incurred in connection
with investigating or preparing to defend such proceeding in a manner not inconsistent with this Section) shall be paid to the Indemnified Party,
as incurred, within thirty (30) trading days of written notice thereof to the Indemnifying Party (regardless of whether it is ultimately determined
that an Indemnified Party is not entitled to indemnification hereunder; provided, that the Indemnifying Party may require such Indemnified Party
to undertake to reimburse all such fees and expenses to the extent it is finally judicially determined that such Indemnified Party is not entitled to
indemnification hereunder).
5.4 The indemnification provided for under this Agreement will remain in full force and effect regardless of any investigation
made by or on behalf of the Indemnified Party or any officer, director or controlling Person of such Indemnified Party. In addition, the
indemnification will survive the completion of any offering of Registrable Securities pursuant to this Agreement and will survive the termination
of this Agreement. Each party also agrees to make such provisions, as are reasonably requested by any Indemnified Party, for contribution to
such other party in the event the first party’
s indemnification is unavailable for any reason in such proportion as is appropriate to reflect the
relative fault of the Indemnifying Party and Indemnified Party in connection with the actions, statements or omissions that resulted in such losses
as well as any other relevant equitable considerations. The amount paid or payable by a party as a result of any losses shall be deemed to include
any reasonable attorneys' or other reasonable fees or expenses incurred by such party in connection with any proceeding to the extent such party
would have been indemnified for such fees or expenses if the indemnification provided for in this Section were available to such party in
accordance with its terms. The relative fault of such Indemnifying Party and Indemnified Party shall be determined by reference to, among other
things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission of a
material fact relates to information supplied by the Indemnifying Party or the Indemnified Party and the parties' relative intent, knowledge,
access to information, and opportunity to correct or prevent such statement or omission. Notwithstanding the provisions of this Section, no
holder of Registrable Securities shall be required to contribute, in the aggregate, any amount in excess of the amount by which the proceeds
actually received by such holder of Registrable Securities from the sale of the Registrable Securities subject to the proceeding exceeds the
amount of any damages that such holder of Registrable Securities has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. The indemnity and contribution agreements contained in this Section are in addition to any liability
that the Indemnifying Parties may have to the Indemnified Parties. The indemnification and contribution provisions of this Agreement may be
superseded by the comparable provisions of a customary underwriting agreement entered into with an underwriter selected in accordance with
the provisions of this Agreement.
6. Participation in Underwritten Registration
. No Person may participate in any registration hereunder which is underwritten unless
such Person (a) agrees to sell such Person’
s securities on the basis provided in any underwriting arrangements approved by the Company and
(b) completes and executes all customary questionnaires, powers of attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting arrangements; provided that no holder of Registrable Securities included in any underwritten
registration shall be required to make any representations or warranties to the Company or the underwriters other than representations and
warranties regarding such holder, its ownership of the securities being registered on its behalf and such holder’s intended method of distribution.
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