Supplemental Disclosure Letter. Parascript and Mitek agree that, with respect to their respective Initial Disclosure Letter, they shall have the continuing obligation until the Closing Date to supplement, modify or amend promptly their respective Initial Disclosure Letter with respect to (a) any matter occurring after the date hereof that, if existing or occurring on or before the date of this Agreement, would have been required to be set forth or described in the Initial Disclosure Letter (the “New Matters”), and (b) other matters which are not New Matters but should have been set forth or described in the Initial Disclosure Letter as of the date hereof (the “Other Matters”). Any such supplement, modification or amendment (each a “Supplemental Disclosure Letter” and, collectively, the “Supplemental Disclosure Letters”) (i) that reflects a New Matter shall qualify the representations and warranties of Parascript or Mitek, as the case may be, for all purposes of this Agreement, and (ii) that reflects one or more Other Matters shall not qualify any of the representations or warranties of Parascript or Mitek, as the case may be, for any purpose under this Agreement, and shall be provided solely for informational purposes and (iii) shall constitute representations and warranties of the respective parties. On or before the Closing Date, Parascript will prepare and deliver to Mitek and Mitek will prepare and deliver to Parascript a copy of the Supplemental Disclosure Letter revised to reflect any supplement, modification or amendment required pursuant to this Section 7.3. Parascript and Mitek shall deliver their respective Supplemental Disclosure Letter at least five (5) Business Days before the Closing Date. If no Supplemental Disclosure Letter satisfying the foregoing requirements is provided by Parascript or Mitek, as the case may be, the Initial Disclosure Letter as delivered upon the execution of this Agreement shall continue to apply. If there is any inconsistency between the statements in this Agreement and those in such Disclosure Letter (other than an exception expressly set forth as such in such Disclosure Letter with respect to a specifically identified representation or warranty), the statements in this Agreement will control.
Appears in 1 contract
Samples: Merger Agreement (Mitek Systems Inc)
Supplemental Disclosure Letter. Parascript and Mitek agree that, with respect to their respective Initial Disclosure Letter, they shall have the continuing obligation until the Closing Date to supplement, modify or amend promptly their respective Initial Disclosure Letter with respect to (a) any matter occurring after Pfizer may deliver a Supplemental Disclosure Letter to Purchaser prior to the date hereof that, if existing Closing. The effect of the Supplemental Disclosure Letter shall be as follows:
(1) the Supplemental Disclosure Letter shall not qualify the warranties in Article V of this Agreement to the extent made or occurring on or before given as at the date of this Agreement, would have been required to be set forth ;
(2) any facts or described circumstances Disclosed in the Initial Disclosure Letter (the “New Matters”), and (b) other matters which are not New Matters but should have been set forth or described in the Initial Disclosure Letter as of the date hereof (the “Other Matters”). Any such supplement, modification or amendment (each a “Supplemental Disclosure Letter” and, collectively, the “Supplemental Disclosure Letters”) (i) that reflects a New Matter shall qualify the representations and warranties of Parascript or Mitek, as the case may be, for all purposes of this Agreement, and (ii) that reflects one or more Other Matters shall not qualify any of the representations or warranties of Parascript or Mitek, as the case may be, for any purpose under this Agreement, and shall be provided solely for informational purposes and (iii) shall constitute representations and warranties of the respective parties. On or before the Closing Date, Parascript will prepare and deliver to Mitek and Mitek will prepare and deliver to Parascript a copy of the Supplemental Disclosure Letter revised shall, if the facts so Disclosed are, based on the information reasonably available at that time, expected to reflect result in aggregate Losses of equal to or less than [****], be deemed not to qualify the warranties in Article V of this Agreement to the extent made or given as of the Closing Date (the “Closing Warranties”), save that such aggregate Losses which are ultimately recoverable by the Purchaser under the Closing Warranties in respect of any supplementfacts or circumstances so Disclosed shall not be greater than [****]; and
(3) any facts or circumstances Disclosed in the Supplemental Disclosure Letter shall, modification if the facts so Disclosed are, based on the information reasonably available at that time, expected to result in aggregate Losses of greater than [****] be deemed to qualify the Closing Warranties in full and Pfizer shall have no liability whatsoever for breach of the Closing Warranties in respect of matters so Disclosed.
(b) If Pfizer wishes to deliver a Supplemental Disclosure Letter in accordance with Section 11.11(a) above it shall use all reasonable endeavors to provide a draft of such Supplemental Disclosure Letter to Purchaser at least five Business Days prior to the date on which Pfizer estimates Closing is to take place. Pfizer shall, when providing such draft Supplemental Disclosure Letter, also state in writing therein whether, in its view, for the purposes of Section 11.1(a) the facts so Disclosed are, based on the information reasonably available at that time, expected to result in aggregate Losses of greater than [****] or amendment required equal to or less than [****]. This statement shall be definitive for the purposes of Section 11.1(a) above unless Purchaser notifies Pfizer in writing prior to Closing that it disputes such statement. If, following receipt of such Supplemental Disclosure Letter, Pfizer and Purchaser cannot reach agreement in this regard within three Business Days, the following provisions apply:
(1) either Party may refer the dispute to an independent person agreed by the Parties or, in default of agreement within three Business Days, to an independent person nominated by the President for the time being of Law Society of Ireland (the “Expert”), with a request that the Expert make a decision on the dispute within 10 Business Days of receiving the reference;
(2) in a reference, the Expert shall act as an expert and not as an arbitrator;
(3) the decision of the Expert is, in the absence of fraud or manifest error, final and binding on both Parties;
(4) the Parties shall bear the Expert’s costs equally;
(5) the Parties shall with reasonable expedition endeavor to agree any terms of reference of the Expert or procedures relating to the determination (failing which the Expert shall determine his own terms of reference and the procedures to be applied to the determination of any dispute pursuant to this clause); and
(6) each Party shall promptly furnish to the Expert all such assistance, documents, information and personnel as the Expert may require for the purpose of the determination.
(c) Closing shall be delayed pending agreement or determination of whether, for the purposes of Section 7.3. Parascript and Mitek shall deliver their respective 11.1(a), any facts or circumstances Disclosed in the Supplemental Disclosure Letter are, based on the information reasonably available at least five (5) Business Days before the Closing Date. If no Supplemental Disclosure Letter satisfying the foregoing requirements is provided by Parascript that time, expected to result in aggregate Losses of greater than [****] or Mitek, as the case may be, the Initial Disclosure Letter as delivered upon the execution of this Agreement shall continue equal to apply. If there is any inconsistency between the statements in this Agreement and those in such Disclosure Letter (other or less than an exception expressly set forth as such in such Disclosure Letter with respect to a specifically identified representation or warranty), the statements in this Agreement will control[****].
Appears in 1 contract
Samples: Asset Purchase Agreement (Biomarin Pharmaceutical Inc)
Supplemental Disclosure Letter. Parascript and Mitek each of Parent and AHC agree that, with respect to their respective Initial Disclosure Letter, they shall have the continuing obligation until the Closing Date to supplement, modify or amend promptly their respective Initial Disclosure Letter with respect to (a) any matter occurring after the date hereof that, if existing or occurring on or before the date of this Agreement, would have been required to be set forth or described in the Initial Disclosure Letter (the “New Matters”), and (b) other matters which are not New Matters but should have been set forth or described in the Initial Disclosure Letter as of the date hereof (the “Other Matters”). Any such supplement, modification or amendment (each a “Supplemental Disclosure Letter” and, collectively, the “Supplemental Disclosure Letters”) (i) that reflects a New Matter shall qualify the representations and warranties of Parascript or MitekAHC, as the case may be, for all purposes of this Agreement, and (ii) that reflects one or more Other Matters shall not qualify any of the representations or warranties of Parascript or Mitekeach of Parent and AHC, as the case may be, for any purpose under this Agreement, and shall be provided solely for informational purposes and (iii) shall constitute representations and warranties of the respective parties. On or before the Closing Date, Parascript will prepare and deliver to Mitek Parent and Mitek AHC, and Parent and AHC will prepare and deliver to Parascript a copy of the Supplemental Disclosure Letter revised to reflect any supplement, modification or amendment required pursuant to this Section 7.3. Parascript and Mitek Parent and AHC shall deliver their respective Supplemental Disclosure Letter at least five (5) Business Days before the Closing Date. If no Supplemental Disclosure Letter satisfying the foregoing requirements is provided by Parascript or MitekParent and AHC, as the case may be, the Initial Disclosure Letter as delivered upon the execution of this Agreement shall continue to apply. If there is any inconsistency between the statements in this Agreement and those in such Disclosure Letter (other than an exception expressly set forth as such in such Disclosure Letter with respect to a specifically identified representation or warranty), the statements in this Agreement will control.
Appears in 1 contract
Supplemental Disclosure Letter. Parascript Seller and Mitek Buyer agree that, with respect to their respective Initial Disclosure Letter, they shall have the continuing obligation until the Closing Date to supplement, modify or amend promptly their respective Initial Disclosure Letter with respect to (a) any matter occurring after the date hereof that, if existing or occurring on or before the date of this Agreement, would have been required to be set forth or described in the Initial Disclosure Letter (the “New Matters”), and (b) other matters which are not New Matters but should have been set forth or described in the Initial Disclosure Letter as of the date hereof (the “Other Matters”). Any such supplement, modification or amendment (each a “Supplemental Disclosure Letter” and, collectively, the “Supplemental Disclosure Letters”) (i) that reflects a New Matter shall qualify the representations and warranties of Parascript Seller or MitekBuyer, as the case may be, for all purposes of this Agreement, and (ii) that reflects one or more Other Matters shall not qualify any of the representations or warranties of Parascript Seller or MitekBuyer, as the case may be, for any purpose under this Agreement, and shall be provided solely for informational purposes and (iii) shall constitute representations and warranties of the respective parties. On or before the Closing Date, Parascript Seller will prepare and deliver to Mitek Buyer and Mitek Buyer will prepare and deliver to Parascript Seller a copy of the Supplemental Disclosure Letter revised to reflect any supplement, modification or amendment required pursuant to this Section 7.3. Parascript Seller and Mitek Buyer shall deliver their respective Supplemental Disclosure Letter at least five (5) Business Days before the Closing Date. If no Supplemental Disclosure Letter satisfying the foregoing requirements is provided by Parascript Seller or MitekBuyer, as the case may be, the Initial Disclosure Letter as delivered upon the execution of this Agreement shall continue to apply. If there is any inconsistency between the statements in this Agreement and those in such Disclosure Letter (other than an exception expressly set forth as such in such Disclosure Letter with respect to a specifically identified representation or warranty), the statements in this Agreement will control.
Appears in 1 contract
