Representations and Warranties Insurance. 11.1. Each PARTY hereby represents and warrants to the other PARTY that (a) it has all requisite power and authority to enter into this AGREEMENT and to consummate the transactions contemplated hereby, and (b) this AGREEMENT has been duly and validly executed and delivered by such PARTY and constitutes its valid, legal and binding obligation, enforceable against it in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law.
11.2. MILLIPORE hereby represents and warrants to ANAPTYSBIO that as of the EFFECTIVE DATE (a) to its knowledge, neither the grant of the licenses pursuant to this AGREEMENT nor the practice of the MILLIPORE INTELLECTUAL PROPERTY or use of the MATERIALS by ANAPTYSBIO, its AFFILIATES and/or its SUBLICENSEES shall infringe or misappropriate any patent or other intellectual property rights of any THIRD PARTY and it does not know of any claim of a THIRD PARTY with respect to any such infringement or misappropriation; and (b) MILLIPORE owns or controls the entire right, title, and interest in and to the MILLIPORE INTELLECTUAL PROPERTY and the MATERIALS as of the EFFECTIVE DATE; and (c) the MATERIALS have been manufactured by or on behalf of MILLIPORE in accordance with all applicable laws.
11.3. ANAPTYSBIO warrants that it will not MANUFACTURE, use, sublicense or sell COMMERCIALIZED PRODUCT for any purpose other than those purposes for which it is authorized under Articles 3 and 5.
11.4. ANAPTYSBIO shall take out, maintain and keep current in respect of the manufacture, sale and use of COMMERCIALIZED PRODUCT all appropriate insurances, as determined by ANAPTYSBIO in good faith, including, commencing upon the first commercial SALE by ANAPTYSBIO of a COMMERCIALIZED PRODUCT, adequate product liability insurance and appropriate THIRD PARTY and other insurance.
11.5. EXCEPT AS PROVIDED HEREIN, NEITHER PARTY MAKES ANY REPRESENTATIONS AND EXTENDS NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Representations and Warranties Insurance. Prior to the Closing, subject to the other provisions of this Article V, the Seller and its Affiliates and Representatives shall reasonably cooperate with the Purchaser and its Representatives in connection with responding to any reasonable additional diligence requests by any insurer under any R&W Insurance Policy and other matters reasonably required by such insurer under such R&W Insurance Policy to bring down and finalize coverage under such R&W Insurance Policy at the Closing.
Representations and Warranties Insurance. Purchaser may, at its election, obtain a customary buy-side representations and warranties insurance policy relating to this Agreement (the “R&W Insurance Policy”). Purchaser agrees that any such R&W Insurance Policy shall expressly provide that the insurer thereunder (the “R&W Insurer”) shall not be entitled to exercise, and shall waive and not pursue any and all, subrogation, indemnification, contribution, assignment or other rights against U.S. Seller or any of U.S. Seller’s Related Parties, except in the case of Fraud committed by the Person against whom recourse is sought, and U.S. Seller and U.S. Seller’s Related Parties shall be express third party beneficiaries of such provisions. Except as set forth in the immediately preceding sentence, neither U.S. Seller nor any of U.S. Seller’s Related Parties shall have any liability to the R&W Insurer under the R&W Insurance Policy. Following the date hereof, Purchaser shall not amend or waive, nor permit the amendment or waiver of, the foregoing provisions contained in the R&W Insurance Policy or otherwise amend or modify the R&W Insurance Policy in a manner materially adverse to U.S. Seller or any of U.S. Seller’s Related Parties without U.S. Seller’s prior written consent. If Purchaser elects to obtain a R&W Insurance Policy, Purchaser shall pay 100% of the total cost attributable to the placement of the R&W Insurance Policy, including premium, underwriting fees, broker fees and commissions, Taxes and all other fees and expenses related thereto.
Representations and Warranties Insurance. Attached hereto as Exhibit D is an executed, accurate and complete copy of the Binder Agreement, which includes as an exhibit an accurate and complete copy of the R&W Insurance Policy. The Buyer has delivered to the applicable insurance broker, for release as of the Closing to the Insurer and/or managing general underwriter(s) under the R&W Insurance Policy, instructions to bind the R&W Insurance Policy in accordance with the terms and conditions set forth in the Binder Agreement. Except as expressly set forth in the Binder Agreement, there are no conditions precedent to the obligation of the Insurer to issue the R&W Insurance Policy. There are no side letters or other agreements, contracts or arrangements relating to the issuance of the R&W Insurance Policy in accordance with the Binder Agreement. To the Buyer’s Knowledge, there is no fact or occurrence as of the date of this Agreement that could reasonably be expected to cause the conditions to the issuance of the R&W Insurance Policy not to be satisfied at or before the Closing, and the Buyer has no reason to believe that it will be unable to satisfy on a timely basis any term or condition to be satisfied by it contained in the Binder Agreement. The Binder Agreement has not been amended, restated or otherwise modified or waived on or prior to the date of this Agreement and the commitments of the Insurer contained in the Binder Agreement have not been withdrawn, modified or rescinded on or prior to the date of this Agreement. On or prior to the date of this Agreement, the Buyer has delivered to the Insurer (with a copy to the Sellers) an inception no claims declaration in the form required to be delivered in accordance with the Binder Agreement, and any all costs and expenses related to the R&W Insurance Policy required to cause the R&W Insurance Policy to become effective in accordance with its terms, including the total premium, underwriting costs, brokerage commission, taxes related to such policy and other fees and expenses of such policy have been paid in full, which such premiums or other fees are to be paid one-half by the Sellers and one-half by the Buyer. Notwithstanding anything to the contrary in this Agreement, the Buyer acknowledges and agrees that issuance of the R&W Insurance Policy is not a condition to the Closing and the Buyer shall remain obligated, subject only to the conditions in Section 9.01, to consummate the transactions contemplated by this Agreement.
Representations and Warranties Insurance. Prior to the date of this Agreement, Buyer has obtained and made available to Seller a “Buyer side” representations and warranties insurance policy from Xxxxxxx USA Services, Inc. (the “R&W Insurance Carrier”), substantially in the form attached hereto as Exhibit E, insuring Buyer for (among other things) (a) covered Losses due to breaches of representations and warranties of Seller under Article III and the Company under Article IV and (b) indemnity for certain pre-Closing Tax liabilities under Section 6.06. Buyer shall ensure that the R&W Insurance Policy is issued on or before the Closing Date. Without limiting the generality of the foregoing, Buyer shall timely pay all premiums and other amounts required to cause the R&W Insurance Policy to become effective in accordance with its terms. Seller shall deliver a copy of the Data Room hosted by Fidus on behalf of the Company to the R&W Insurance Carrier within a reasonable period of time (but no longer than ten (10) Business Days) following the Closing. Following the Closing, Buyer acknowledges and agrees that the R&W Insurance Policy shall provide that the Insurer shall waive any right or entitlement of subrogation against Seller or any of its Affiliates for any claims (other than claims arising from Fraud) paid to the Buyer under the R&W Insurance Policy. Buyer further acknowledges that the R&W Insurance Policy shall provide that Seller may enforce this waiver directly against the Insurer, and as such is an intended third-party beneficiary for purposes of subrogation claims within the scope of the waiver. Buyer shall not (and shall cause its Affiliates (including, after the Closing, the Company) to not) amend, modify, terminate or waive any subrogation provision in the R&W Insurance Policy in a manner that would adversely affect to Seller, without the prior written consent of Seller. Buyer shall be solely responsible for payment of the R&W Insurance Policy premium and R&W Insurance Carrier expense payment.
Representations and Warranties Insurance. (i) . Buyer has obtained (at its sole direction and at its sole expense) a buy-side representations and warranties insurance policy (including any excess policies, if any) (“Representations and Warranties Policy”), a true and correct final draft form of which is attached hereto as Exhibit J. It is contemplated that the Representations and Warranties Policy shall be incepted as of the date hereof. Buyer and its Affiliates shall not waive, amend, terminate, modify or otherwise revise (a) the insurer’s waiver of subrogation rights as set forth in such policy, or (b) the definition of “Fraud” as defined in such policy without Sellers’ Representative’s prior written consent; provided, however, that nothing in this Section 8.15 shall be deemed to be a limitation of the insurer’s subrogation right as set forth in such Representations and Warranties Policy (in the form attached hereto as Exhibit J) against the Sellers in the event of Fraud.
Representations and Warranties Insurance. Purchaser shall be solely responsible for and shall pay all costs and expenses in connection with the procurement of a customary buy-side representations and warranties insurance policy relating to this Agreement (the “R&W Insurance Policy”) prior to the Closing. Purchaser shall cause the R&W Insurance Policy at all times to provide that (i) the insurer thereunder may not subrogate or otherwise make or bring any Proceeding against Seller or any of its Affiliates or any past, present or future director, manager, officer, employee or advisor of any of the foregoing (collectively, the “Seller Parties”) based upon, arising out of, or related to this Agreement, or the negotiation, execution or performance of this Agreement, except in the event of Fraud by the Person against whom such Proceeding is brought, and (ii) each of the Seller Parties shall be an express third-party beneficiary of the provisions in the R&W Insurance Policy referenced in clause (i) of this Section 5.17. For the avoidance of doubt, nothing in this Agreement is intended to, nor shall it have the effect of, limiting or diminishing the Purchaser’s or any other Person’s right to seek or obtain recovery under the R&W Insurance Policy. Exhibit M sets forth the form of the R&W Insurance Policy and the binder agreement pursuant to which Purchaser has received a conditional written commitment from the insurer(s) specified therein to fully bind the R&W Insurance Policy effective as of the Closing Date. Such commitment is in full force and effect as of the date hereof.
Representations and Warranties Insurance. 10.1 Seller warrants and represents to Buyer that it has established procedures for the manufacture and supply of the Product and that all Product sold by Seller pursuant to this Agreement will conform to the quality Specifications set forth in Exhibit A and/or the QAP.
Representations and Warranties Insurance. From the Execution Date through the earlier of the termination of this Agreement pursuant to Article 10 and the Closing, Parent shall use commercially reasonable efforts obtain a representations and warranties insurance policy on customary terms, including the scope of coverage, exclusions and price, that are reasonably acceptable to Parent (“R&W Insurance”). Parent will pay or cause to be paid, at or prior to Closing, all costs and expenses related to the R&W Insurance, including the total premium, underwriting costs, brokerage commissions, and other fees and expenses of such policy, and not more than $250,000.00 of such costs shall be deemed Transaction Expenses. The Parent shall cause the R&W Insurance to include a waiver of subrogation rights, except in the case of Fraud, against the Company Holders and/or any of their respective Affiliates and/or any of their respective equity holders or Representatives, which waiver of subrogation rights shall not be amended following Closing without the Stockholders’ Representative’s prior written consent.
Representations and Warranties Insurance. Prior to the Closing, Buyer shall obtain and bind the R&W Policy. Seller Representative shall cooperate with Buyer’s efforts and provide assistance as reasonable requested by Buyer to obtain and bind the R&W Policy. At Closing, Buyer shall pay or cause to be paid all costs and expenses related to binding of the R&W Policy, including the total premium, underwriting costs, brokerage commissions and other fees and expenses of such policy.
