Incredimail 2010 Annual Report Download - page 159

c. At the Closing, following satisfaction of the terms set forth in Sections 2(b)(i) and 2(b)(ii) of this Agreement, (i) the
Escrow Agent will deliver the Transfer Documents to the Company’
s transfer agent and the Seller will cause to be delivered to each Purchaser a
facsimile copy of the certificate (in each case duly executed and dated by the Company) representing the Shares being purchased by such
Purchaser in the name of each such Purchaser (the “Certificate”)
and (ii) the Escrow Agent will deliver to the Seller, by wire transfer of
immediately available funds to such account as designated by the Seller, a United States dollar amount equal to the product of the Purchase Price
multiplied by the aggregate number of Shares sold to Purchasers hereunder (the “Sale Amount”),
minus fees payable to Roth Capital Partners,
LLC. Seller shall cause each original Certificate to be delivered to each relevant Purchaser or at such Purchaser’
s direction, within ten business
days following the Closing.
d. If the Closing shall not have occurred by the fourteenth day following the date hereof, the Seller shall return (or cause
the Escrow Agent to return) to each Purchaser such Purchaser’s portion of the Sale Amount.
Section 3. Representations and Warranties of each Purchaser
. Each Purchaser, severally and not jointly, hereby represents and
warrants to the Seller as follows:
a. Intent
. Such Purchaser is acquiring the Shares as principal for its own account (or for the account of its members)
and not with a current view to or for distributing or reselling such Shares, without prejudice, however, to such Purchaser’
s right, at all times, to
sell or otherwise dispose of all or any part of such Shares pursuant to an effective registration statement under the Securities Act or under an
exemption from such registration and in compliance with applicable federal and state securities laws. Nothing contained herein shall be deemed
a representation or warranty by any Purchaser to hold the Shares for any period of time. Such Purchaser is acquiring the Shares hereunder in the
ordinary course of its business and does not have any agreement or understanding, directly or indirectly, with any person to distribute any of the
Shares.
b. Organization; Authority
. Such Purchaser is an entity duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization with the requisite corporate, limited liability company or partnership power and authority to enter into
and to consummate the transactions contemplated hereby and otherwise to carry out its obligations hereunder. The purchase by each such
Purchaser of the Shares hereunder has been duly authorized by all necessary action on the part of such Purchaser. This Agreement has been duly
executed by each such Purchaser, and when delivered by such Purchaser in accordance with the terms hereof, will constitute the valid and legally
binding obligation of such Purchaser, enforceable against it in accordance with its terms, subject to applicable bankruptcy, reorganization,
insolvency, moratorium or similar laws affecting creditors’ rights generally.
c. Purchaser Status . Such Purchaser is an “accredited investor”
as defined in Rule 501(a) under the Securities Act, or is
not a “U.S. Person”
as such term is defined in Regulation S promulgated under the Securities Act. Such Purchaser is itself not a registered
broker-dealer under Section 15 of the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”).
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