Common use of Seller’s Representations; Independent Investigation Clause in Contracts

Seller’s Representations; Independent Investigation. (a) Purchaser acknowledges and agrees that, other than the representations and warranties of Seller specifically contained in Article III, there are no representations or warranties of Seller or any other person either expressed, statutory or implied with respect to the Company or the Shares, including with respect to any of the Company’s rights or assets or the Compound, or the transactions contemplated hereby or by the Ancillary Agreements (except as may be included in such Ancillary Agreements), individually or collectively (except for the representations and warranties of Purchaser in this Article IV). Purchaser, together with and on behalf of its affiliates and Representatives, specifically disclaims that it or they are relying upon or have relied upon any such other representations or warranties that may have been made by any person, and Purchaser, together with and on behalf of its affiliates and Representatives, acknowledges and agrees that Seller and its affiliates (including, before the Closing, the Company) have specifically disclaimed and do hereby specifically disclaim any such other representation or warranty made by any person. Without limiting the generality of the foregoing, Purchaser acknowledges and agrees that, except as set forth in Article III or otherwise expressly set forth in this Agreement, none of Seller, its affiliates or their respective Representatives makes any representations or warranties relating to (i) the maintenance, repair, condition, design, performance or marketability of any right or asset of the Company, including with respect to title, merchantability or fitness for a particular purpose, validity, enforceability or non-infringement, (ii) the operation of the Company or its business by Purchaser after the Closing or (iii) the probable success or profitability of the Company or its business after the Closing. (b) Except as expressly set forth in any representation or warranty in Article III or otherwise expressly set forth in this Agreement, Purchaser acknowledges and agrees that no person, including the Purchaser Indemnitees, shall have any claim (whether in warranty, contract, tort (including negligence or strict liability) or otherwise) or right to indemnification pursuant to Article VIII (or otherwise) with respect to any information, documents or materials made available or otherwise furnished to or for Purchaser, its affiliates or their respective Representatives by Seller, any of its affiliates (including the Company), or any of their respective Representatives, including any financial projections or other statements regarding future performance or the Development of the Compound, the “teaser” regarding, among other things, the Company and its business provided to Purchaser, its affiliates or their respective Representatives and any other information, documents or materials, whether oral or written, made available to Purchaser, its affiliates or their respective Representatives in any “data room,” management presentation, “break-out” discussions, responses to questions submitted on behalf of Purchaser, its affiliates or their respective Representatives or otherwise furnished to Purchaser, [***] = Portions of this exhibit have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment requested under 17 C.F.R. Sections 200.80(b)(4) and 230.406. its affiliates or their respective Representatives in any form in expectation of the transactions contemplated hereby. (c) Purchaser, its affiliates and their respective Representatives have received and may continue to receive from Seller, its affiliates (including the Company) and their respective Representatives certain estimates, projections and other forecasts for the Company and certain plan and budget information. Purchaser acknowledges that these estimates, projections, forecasts, plans and budgets, and the assumptions on which they are based, were prepared for specific purposes and may vary significantly from each other. Further, Purchaser acknowledges that there are uncertainties inherent in attempting to make such estimates, projections, forecasts, plans and budgets, that Purchaser is taking full responsibility for making its own evaluation of the adequacy and accuracy of all estimates, projections, forecasts, plans and budgets so furnished to it, its affiliates or their respective Representatives (including the reasonableness of the assumptions underlying such estimates, projections, forecasts, plans and budgets) and that Purchaser is not relying on any estimates, projections, forecasts, plans or budgets made available or otherwise furnished by Seller, its affiliates (including the Company) or their respective Representatives, and Purchaser shall not, and shall cause its affiliates and their respective Representatives not to, hold any such person liable with respect thereto (whether in warranty, contract, tort (including negligence or strict liability) or otherwise). (d) Notwithstanding anything in this Section 4.09 or otherwise in this Agreement to the contrary, nothing in this Section 4.09 or otherwise set forth in this Agreement shall in any way limit any claim by Purchaser or any Purchaser Indemnitee arising out of or relating to actual fraud.

Seller’s Representations; Independent Investigation. (a) Purchaser acknowledges and agrees that, other than the representations and warranties of Seller specifically contained in Article III, there are no representations or warranties of Seller or any other person either expressed, statutory expressed or implied with respect to the Company or Transferred Assets, the Shares, including with respect to any of the Company’s rights or assets or the CompoundAssumed Liabilities, or the transactions contemplated hereby or by the Ancillary Agreements (except as may be included in such Ancillary Agreements)hereby, individually or collectively (except for the representations and warranties of Purchaser in this Article IV)collectively. Purchaser, together with and on behalf of its affiliates and Representatives, specifically disclaims that it or they are relying upon or have relied upon any such other representations or warranties that may have been made by any person, and Purchaser, together with and on behalf of its affiliates and Representatives, acknowledges and agrees that Seller and its affiliates (including, before the Closing, the Company) have specifically disclaimed and do hereby specifically disclaim any such other representation or warranty made by any person. Without limiting the generality of the foregoing, Purchaser acknowledges and agrees that, except as set forth in Article III or otherwise expressly set forth in this Agreement, that none of Seller, its affiliates or their respective its Representatives makes any representations or warranties relating to (i) the maintenance, repair, condition, design, performance or marketability of any right or asset of the CompanyTransferred Asset, including with respect to title, merchantability or of fitness for a particular purpose, validity, enforceability or non-infringement, (ii) the operation Exploitation of the Company Products by Seller on or its business prior to the Closing, (iii) the ownership, use, sale, license or lease of the Transferred Assets by Purchaser after the Closing or (iiiiv) the Exploitation of the Transferred Assets by Purchaser after the Closing, including the probable success or profitability of the Company or its business Exploitation of the Products after the Closing. Except as set forth in the representations and warranties in Article III, Purchaser acknowledges and agrees that it shall obtain rights in the Transferred Assets in their present condition and state of repair, “as is” and “where is.” Nothing in this Section 4.06 or otherwise in this Agreement shall limit any claim for fraud or intentional misrepresentation. (b) Purchaser acknowledges that Purchaser, its affiliates and their respective Representatives have been permitted full access to the books and records, facilities, equipment, personnel and other properties and assets relating to the Transferred Assets that Purchaser, its affiliates and their respective Representatives have desired or requested to see and review, and that Purchaser, its affiliates and their respective Representatives have had a full opportunity to conduct and complete a due diligence investigation of the Transferred Assets and the Assumed Liabilities. Except as expressly set forth in any representation or warranty in Article III or otherwise expressly set forth in this AgreementIII, Purchaser acknowledges and agrees that no person, including the Purchaser Indemnitees, shall have any claim (whether in warranty, contract, tort (including negligence or strict liability) or otherwise) or right to indemnification pursuant to Article VIII VII (or otherwise) with respect to any information, documents or materials made available or otherwise furnished to or for Purchaser, its affiliates or their respective Representatives by Seller, Hikma, any of its affiliates (including the Company)their respective affiliates, or any of their respective Representatives, including any financial projections or other statements regarding future performance or the Development of the Compound, the “teaser” regarding, among other things, the Company and its business provided to Purchaser, its affiliates or their respective Representatives and any other information, documents or materialsmaterial, whether oral or written, made available to Purchaser, its affiliates or their respective Representatives in any “data room,” management presentation, “break-out” discussionsdiscussions or meetings, responses to questions submitted on behalf of Purchaser, its affiliates or their respective Representatives or otherwise furnished to Purchaser, [***] = Portions of this exhibit have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment requested under 17 C.F.R. Sections 200.80(b)(4) and 230.406. its affiliates or their respective Representatives in any form in expectation of the transactions contemplated hereby, except, for avoidance of doubt, insofar as such claim or indemnification relates to a Retained Liability or an Excluded Asset. (c) Purchaser, its affiliates and their respective Representatives may have received and may continue to receive from Seller, its Hikma, their respective affiliates (including the Company) and their respective Representatives certain estimates, projections and other forecasts for the Company and certain plan and budget information. Purchaser acknowledges that these estimates, projections, forecasts, plans and budgets, and the assumptions on which they are based, were prepared for specific purposes and may vary significantly from each other. Further, Purchaser acknowledges that there are uncertainties inherent in attempting to make such estimates, projections, forecasts, plans and budgets, that Purchaser is taking full responsibility for making its own evaluation of the adequacy and accuracy of all estimates, projections, forecasts, plans and budgets so furnished to it, its affiliates or their respective Representatives (including the reasonableness of the assumptions underlying such estimates, projections, forecasts, plans and budgets) and that Purchaser is not relying on on, and Seller and its affiliates have not made and are not making any representations or warranties with respect to, any estimates, projections, forecasts, plans or budgets made available or otherwise furnished by Seller, its Hikma, their respective affiliates (including the Company) or their respective Representatives, and Purchaser shall not, and shall cause its affiliates and their respective Representatives not to, hold any such person liable with respect thereto (whether in warranty, contract, tort (including negligence or strict liability) or otherwise). (d) Notwithstanding anything in this Purchaser, its affiliates and their respective Representatives acknowledge that any dispute regarding Section 4.09 or otherwise in this Agreement 3.08 (API), Seller reserves the right to perform its own API testing. Should there be any disputes regarding the contraryAPI test results, nothing in this Section 4.09 or otherwise set forth in this Agreement shall in any way limit any claim both parties agree to contract with an independent third party laboratory to perform the API testing. Both parties agree to accept test result as provided by Purchaser or any Purchaser Indemnitee arising out of or relating to actual fraudthe third party laboratory.

Seller’s Representations; Independent Investigation. Without limiting in any way the representations and warranties expressly set forth in Article III and Article IV as well as Buyer’s right to rely thereon: (a) Purchaser Buyer acknowledges and agrees that, other than the representations and warranties of Seller specifically contained expressly set forth in Article IIIIII and Article IV, there are no representations or warranties of any Seller or any other person either expressed, statutory or implied with respect to the Company or the SharesCompany Units, including with respect to any of the Company’s rights or assets or the Compoundassets, or the transactions contemplated hereby or by the Ancillary Agreements (except as may be included in such Ancillary Agreements)Transactions, individually or collectively (except for the representations and warranties of Purchaser in this Article IV)collectively. PurchaserBuyer, together with and on behalf of its affiliates Affiliates and Representatives, specifically disclaims that it or they are relying upon or have relied upon any such other representations or warranties that may have been made by any person, and PurchaserBuyer, together with and on behalf of its affiliates Affiliates and Representatives, acknowledges and agrees that Seller the Sellers and its affiliates (including, before the Closing, the Company) their Affiliates have specifically disclaimed and do hereby specifically disclaim any such other representation or warranty made by any person. Without limiting the generality of the foregoing, Purchaser Buyer acknowledges and agrees that, except as expressly set forth in any representation or warranty in Article III or otherwise expressly set forth in this AgreementArticle IV, none of Sellerthe Sellers, its affiliates their Affiliates or their respective Representatives makes any representations or warranties relating to (i) the maintenance, repair, condition, design, performance or marketability of any right or asset of the Company, including with respect to title, merchantability or fitness for a particular purpose, or validity, enforceability or non-infringement, (ii) the operation of the Company or its business by Purchaser Buyer after the Closing Closing, or (iii) the probable success or profitability of the Company or its business after the Closing. (ba) Except as expressly set forth in any representation or warranty in Article III or otherwise expressly set forth in this Agreement, Purchaser Buyer acknowledges and agrees that no person, including the Purchaser Indemnitees, shall have any claim (whether in warranty, contract, tort (including negligence or strict liability) or otherwise) or right to indemnification pursuant to Article VIII (or otherwise) with respect to any information, documents or materials made available or otherwise furnished to or for Purchaserit, its affiliates or their respective Representatives by Seller, any of its affiliates (including the Company), or any of their respective Representatives, including any financial projections or other statements regarding future performance or the Development of the Compound, the “teaser” regarding, among other things, the Company and its business provided to Purchaser, its affiliates or their respective Representatives and any other information, documents or materials, whether oral or written, made available to Purchaser, its affiliates or their respective Representatives in any “data room,” management presentation, “break-out” discussions, responses to questions submitted on behalf of Purchaser, its affiliates or their respective Representatives or otherwise furnished to Purchaser, [***] = Portions of this exhibit have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment requested under 17 C.F.R. Sections 200.80(b)(4) and 230.406. its affiliates or their respective Representatives in any form in expectation of the transactions contemplated hereby. (c) Purchaser, its affiliates Affiliates and their respective Representatives have received been permitted access to the books and may continue to receive from Sellerrecords, facilities, equipment, personnel, Contracts and other properties and assets of the Company that it, its affiliates Affiliates and their respective Representatives have desired or requested to see and review, and that it, its Affiliates and their respective Representatives have had an opportunity to meet with the employees of the Company to discuss the Company and its business. (including b) Buyer, its Affiliates and their respective Representatives may have received from the Company) Sellers, their Affiliates and their respective Representatives certain estimates, projections and other forecasts for the Company and certain plan and budget information. Purchaser Buyer acknowledges that these any such estimates, projections, forecasts, plans and budgets, and the assumptions on which they are based, were prepared for specific purposes and may vary significantly from each other. Further, Purchaser Buyer acknowledges that there are uncertainties inherent in attempting to make such estimates, projections, forecasts, plans and budgets, that Purchaser Buyer is taking full responsibility for making its own evaluation of the adequacy and accuracy of all estimates, projections, forecasts, plans and budgets so furnished to it, its affiliates Affiliates or their respective Representatives (including the reasonableness of the assumptions underlying such estimates, projections, forecasts, plans and budgets) and that Purchaser that, except as expressly set forth in any representation or warranty in Article III or Article IV, Buyer is not relying on any estimates, projections, forecasts, plans or budgets made available or otherwise furnished by Sellerthe Sellers, its affiliates (including the Company) their Affiliates or their respective Representatives, and Purchaser Buyer shall not, and shall cause its affiliates Affiliates and their respective Representatives not to, hold any such person liable with respect thereto (whether in warranty, contract, tort (including negligence or strict liability) or otherwise). (d) Notwithstanding anything , except in this Section 4.09 connection with any representation or otherwise in this Agreement to the contrary, nothing in this Section 4.09 or otherwise warranty expressly set forth in this Agreement shall in any way limit any claim by Purchaser Article III or any Purchaser Indemnitee arising out of or relating to actual fraudArticle IV.

Seller’s Representations; Independent Investigation. (a) Purchaser acknowledges and agrees that, other than the representations and warranties of PEL and the Seller specifically contained in Article IIIIII of this Agreement, there are no representations or warranties of the Seller or any other person either expressed, statutory or implied with respect to PEL, the Company Seller or the Sharesany Operating Company, including with respect to any of the Company’s its rights or assets or the Compoundassets, or the transactions contemplated hereby or by the Ancillary Agreements (except as may be included in such Ancillary Agreements), individually or collectively (except for the representations and warranties of Purchaser in this Article IV)hereby. Purchaser, together with and on behalf of its affiliates and Representatives, specifically disclaims that it or they are relying upon or have relied upon any such other representations or warranties that may have been made by any person, and Purchaser, together with and on behalf of its affiliates and Representatives, acknowledges and agrees that PEL, the Seller and its their respective affiliates (including, before and after the Closing, the CompanyOperating Companies) have specifically disclaimed and do hereby specifically disclaim any such other representation or warranty made by any person. Without limiting the generality of the foregoing, except as expressly provided in this Agreement or any of the Ancillary Agreements, Purchaser acknowledges and agrees that, except as set forth in Article III or otherwise expressly set forth in this Agreement, that none of PEL, the Seller, its their respective affiliates or their respective Representatives makes any representations or warranties relating to (i) the maintenance, repair, condition, design, performance or marketability of any right or asset of the any Operating Company, including with respect to title, merchantability or fitness for a particular purpose, validity, enforceability or non-infringement, (ii) the operation of the any Operating Company or its business by Purchaser after the Closing or (iii) the probable success or profitability of the any Operating Company or its business after the Closing. (b) Except as expressly set forth in this Agreement or any of the Ancillary Agreements, including any representation or warranty in Article III or otherwise expressly set forth in this AgreementIII, Purchaser acknowledges and agrees that no person, including the Purchaser Indemnitees, shall have any claim (whether in warranty, contract, tort (including negligence or strict liability) or otherwise) or right to indemnification pursuant to Article VIII (or otherwise) with respect to any information, documents or materials made available or otherwise furnished to or for Purchaser, its affiliates or their respective Representatives by PEL, the Seller, any of its their respective affiliates (including the CompanyOperating Companies), or any of their respective Representatives, including any financial projections or other statements regarding future performance or the Development of the Compoundperformance, the “teaser” DRG Market Landscape & Strategic Vision presentation dated December 2019 regarding, among other things, things the Company and its business of the Acquired provided to Purchaser, its affiliates or their respective Representatives and any other information, documents or materialsmaterial, whether oral or written, made available to Purchaser, its affiliates or their respective Representatives in any “data room,” management presentation, “break-out” discussions, responses to questions submitted on behalf of Purchaser, its affiliates or their respective Representatives or otherwise furnished to Purchaser, [***] = Portions of this exhibit have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment requested under 17 C.F.R. Sections 200.80(b)(4) and 230.406. its affiliates or their respective Representatives in any form in expectation of the transactions contemplated hereby. (c) Purchaser, its affiliates and their respective Representatives have received and may continue to receive from Seller, its affiliates (including the Company) and their respective Representatives certain estimates, projections and other forecasts for the Company and certain plan and budget information. Purchaser acknowledges that these estimates, projections, forecasts, plans and budgets, and the assumptions on which they are based, were prepared for specific purposes and may vary significantly from each other. Further, Purchaser acknowledges that there are uncertainties inherent in attempting to make such estimates, projections, forecasts, plans and budgets, that Purchaser is taking full responsibility for making its own evaluation of the adequacy and accuracy of all estimates, projections, forecasts, plans and budgets so furnished to it, its affiliates or their respective Representatives (including the reasonableness of the assumptions underlying such estimates, projections, forecasts, plans and budgets) and that Purchaser is not relying on any estimates, projections, forecasts, plans or budgets made available or otherwise furnished by Seller, its affiliates (including the Company) or their respective Representatives, and Purchaser shall not, and shall cause its affiliates and their respective Representatives not to, hold any such person liable with respect thereto (whether in warranty, contract, tort (including negligence or strict liability) or otherwise). (d) Notwithstanding anything in this Section 4.09 or otherwise in this Agreement to the contrary, nothing in this Section 4.09 or otherwise set forth in this Agreement shall in any way limit any claim by Purchaser or any Purchaser Indemnitee arising out of or relating to actual fraud.

Seller’s Representations; Independent Investigation. (a) Purchaser Each Parent Group Company is a sophisticated purchaser and possesses such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of its investment under this Agreement. Each of the Parent Group Companies acknowledges and agrees that, other than the representations and warranties of Seller or any of its affiliates specifically contained in Article IIIIII (as qualified by the Disclosure Schedule), any Ancillary Agreement or the certificate delivered by Seller pursuant to Section 7.02(e), there are no representations or warranties of Seller or any other person Person either expressed, statutory expressed or implied with respect to the Company or Business, the SharesTransferred Quotas, including with respect to any of the Company’s rights or assets or the Compound, Transferred Subsidiaries or the transactions contemplated hereby or by the Ancillary Agreements (except as may be included in such Ancillary Agreements)hereby, individually or collectively (except for the representations and warranties of Purchaser in this Article IV)collectively. PurchaserEach Parent Group Company, together with and on behalf of its their respective affiliates and Representatives, specifically disclaims that it or they are relying upon or have relied upon any such other representations or warranties that may have been made by any person, and Purchasereach Parent Group Company, together with and on behalf of its affiliates and Representatives, acknowledges and agrees that Seller and its affiliates (including, before and after the Closing, the CompanyTransferred Subsidiaries) have specifically disclaimed and do hereby specifically disclaim any such other representation or warranty made by any person. Without limiting the generality of the foregoing, Purchaser acknowledges and agrees that, except as set forth in Article III or otherwise expressly set forth in this Agreement, none of Seller, its affiliates or their respective Representatives makes any representations or warranties relating to (i) the maintenance, repair, condition, design, performance or marketability of any right or asset of the Company, including with respect to title, merchantability or fitness for a particular purpose, validity, enforceability or non-infringement, (ii) the operation of the Company or its business by Purchaser after the Closing or (iii) the probable success or profitability of the Company or its business after the Closing. (b) Except as expressly set forth in any representation or warranty in Article III III, as qualified by the Disclosure Schedule, or otherwise expressly set forth in this Agreementany Ancillary Agreement or the certificate delivered by Seller pursuant to Section 7.02(e), Purchaser each Parent Group Company acknowledges and agrees that no person, including the Purchaser Indemnitees, Indemnitee shall have any claim (whether in warranty, contract, tort (including negligence or strict liability) or otherwise) or right to indemnification pursuant to Article VIII (or otherwise) IX with respect to to, and no such person is relying on, any information, documents or materials made available or otherwise furnished to or for Purchasera Parent Group Company, its their respective affiliates or their respective Representatives by Seller, any of its affiliates (including the Company)affiliates, or any of their respective RepresentativesRepresentatives in connection with the transactions contemplated by this Agreement, including any financial projections or other statements regarding future performance performance, any management presentation or the Development of the Compound, the “teaser” confidential information memoranda regarding, among other things, the Company and its business Business provided to Purchaserthe Parent Group Companies, its their affiliates or their respective Representatives and any other information, documents or materialsmaterial, whether oral or written, made available to Purchaserthe Parent Group Companies, its their affiliates or their respective Representatives in any “data room,” management ”, presentation, “break-out” discussions, responses to questions submitted on behalf of Purchaserthe Parent Group Companies, its their affiliates or their respective Representatives or otherwise furnished to Purchaserthe Parent Group Companies, [***] = Portions of this exhibit have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment requested under 17 C.F.R. Sections 200.80(b)(4) and 230.406. its their affiliates or their respective Representatives in any form in expectation of the transactions contemplated hereby. (c) Purchaser, its affiliates and their respective Representatives have received and may continue to receive from Seller, its affiliates (including the Company) and their respective Representatives certain estimates, projections and other forecasts for the Company and certain plan and budget information. Purchaser acknowledges that these estimates, projections, forecasts, plans and budgets, and the assumptions on which they are based, were prepared for specific purposes and may vary significantly from each other. Further, Purchaser acknowledges that there are uncertainties inherent in attempting to make such estimates, projections, forecasts, plans and budgets, that Purchaser is taking full responsibility for making its own evaluation of the adequacy and accuracy of all estimates, projections, forecasts, plans and budgets so furnished to it, its affiliates or their respective Representatives (including the reasonableness of the assumptions underlying such estimates, projections, forecasts, plans and budgets) and that Purchaser is not relying on any estimates, projections, forecasts, plans or budgets made available or otherwise furnished by Seller, its affiliates (including the Company) or their respective Representatives, and Purchaser shall not, and shall cause its affiliates and their respective Representatives not to, hold any such person liable with respect thereto (whether in warranty, contract, tort (including negligence or strict liability) or otherwise). (d) Notwithstanding anything Nothing in this Section 4.09 4.08 shall limit, or otherwise in this Agreement to the contraryprovide a defense against, nothing in this Section 4.09 or otherwise set forth in this Agreement shall in any way limit any claim by Purchaser or any Purchaser Indemnitee arising out of or relating to actual fraudfor Fraud.