Survival of Representations and Covenants. The representations and warranties of the parties hereto contained in this Agreement or in any certificate or other writing delivered pursuant hereto shall survive the Closing and shall expire on the last day of the Indemnity Period; provided however, that (a) the representations and warranties in Sections 3.01 (Corporate Existence and Power), 3.02 (Corporate Authorization), 3.05 (Capitalization), 3.06 (Ownership of Shares), 3.19 (Finders’ Fees) and 3.24 (Tax Matters) shall survive until thirty (30) calendar days after the expiration of all applicable statutes of limitations or, to the extent there is no applicable statute of limitations, indefinitely and (b) the representations and warranties in Section 3.22(l) (Employee Benefit Plans) shall survive until the third anniversary of the Closing Date. The covenants and agreements of the parties hereto contained in this Agreement or in any certificate or other writing delivered pursuant hereto or in connection herewith shall survive the Closing for the period explicitly specified therein (and if no such period is specified shall survive until the expiration of all applicable statutes of limitations or, to the extent there is no applicable statute of limitations, indefinitely). Notwithstanding the preceding sentences, any breach of representation, warranty, covenant or agreement in respect of which indemnity may be sought under this Agreement shall survive the time at which it would otherwise terminate pursuant to the preceding sentences, if a Claim Certificate with respect to such representation, warranty or covenant has been delivered in accordance with this Article 6 prior to the time of such termination, until such time as every claim set forth in such Claim Certificate has been fully resolved pursuant to this Article 6.
Appears in 2 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (Ellie Mae Inc)
Survival of Representations and Covenants. The representations and warranties of Buyer and the parties hereto Seller contained in this Agreement or in any certificate or other writing delivered pursuant hereto shall survive until the twelve month anniversary of the Closing and shall expire on the last day of the Indemnity PeriodDate; provided howeverprovided, that (a) the representations and warranties contained in Sections 3.01 Section 5.13 (Corporate Existence and Power), 3.02 (Corporate Authorization), 3.05 (Capitalization), 3.06 (Ownership of Shares), 3.19 (Finders’ Fees) and 3.24 (Tax MattersIntellectual Property) shall survive until thirty (the 30) calendar days after -month anniversary of the expiration of all applicable statutes of limitations orClosing Date, to the extent there is no applicable statute of limitations, indefinitely and (b) the representations and warranties contained in Section 3.22(l) 5.20 (Employee Benefit Plans) and Section 5.22 (Tax Matters), in each case, shall survive until the third anniversary date that is thirty (30) days after the applicable statute of limitations for such representations and warranties expires, and (c) the representations and warranties contained in Section 5.01 (Organization and Power), Section 5.02 (Authorization), Section 5.03(i) (Noncontravention), Section 5.04 (Capitalization), Section 6.01 (Organization and Power), Section 6.02 (Authorization), Section 6.03(i) (Noncontravention), Section 6.04 (Equity Interests), Section 7.01 (Organization and Power), Section 7.02 (Authorization) and Section 7.04 (Noncontravention) (the representations and warranties in clauses (b) and (c), the “Fundamental Representations”), in each case, shall survive indefinitely; provided, further, that any claim that is properly asserted in writing pursuant to this Article 10 prior to the expiration of the Closing Date. The covenants and agreements of the parties hereto contained in this Agreement survival period applicable to such representation or in any certificate or other writing delivered pursuant hereto or in connection herewith shall survive the Closing for the period explicitly specified therein (and if no such period is specified warranty set forth above shall survive until the expiration of all applicable statutes of limitations or, to the extent there such claim is no applicable statute of limitations, indefinitely)finally resolved and satisfied. Notwithstanding the preceding sentences, any breach of representation, warranty, covenant or agreement All covenants and other agreements contained in respect of which indemnity may be sought under this Agreement shall survive the time at which it Closing in accordance with their respective terms. It is the express intent of the Parties that, if the applicable survival period for an item as contemplated by this Section 10.01 is shorter than the statute of limitations that would otherwise terminate pursuant have been applicable to such item, then, by contract, the preceding sentences, if a Claim Certificate applicable statute of limitations with respect to such representation, warranty or covenant has been delivered in accordance with this Article 6 prior item shall be reduced to the shortened survival period contemplated hereby. The Parties further acknowledge that the time of such termination, until such time as every claim periods set forth in such Claim Certificate has been fully resolved pursuant this Section 10.01 for the assertion of claims under this Agreement are the result of arms’-length negotiation among the Parties and that they intend for the time periods to this Article 6be enforced as agreed by the Parties.
Appears in 2 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (Upland Software, Inc.)
Survival of Representations and Covenants. (a) The representations, warranties, covenants and obligations of each Party shall survive (without limitation):
(i) the Closing and the sale of the Purchased Assets to, and the assumption of the Assumed Liabilities by, the Purchaser;
(ii) any sale or other disposition of any or all of the Purchased Assets by the Purchaser;
(iii) the transfer or assignment of any of the Assumed Liabilities by the Purchaser; and
(iv) any acquisition transaction effected by or otherwise involving the Purchaser or the Seller. All of said representations and warranties of the parties hereto contained shall remain in this Agreement or in any certificate or other writing delivered pursuant hereto shall survive the Closing full force and shall expire on the last day of the Indemnity Period; provided however, that (a) the representations effect and warranties in Sections 3.01 (Corporate Existence and Power), 3.02 (Corporate Authorization), 3.05 (Capitalization), 3.06 (Ownership of Shares), 3.19 (Finders’ Fees) and 3.24 (Tax Matters) shall survive until thirty (30) calendar days after March 31, 2006; provided, however, any Damages arising from any representation or warranty set forth in Sections 3.1, 3.3, 3.6, 3.16 or 3.17, 3.18, 3.19 shall survive for the expiration entire period of all any applicable statutes of limitations or, to the extent there is no applicable statute but not in excess of limitations, indefinitely and six (b6) the representations and warranties in Section 3.22(l) (Employee Benefit Plans) shall survive until the third anniversary years. All of the Closing Date. The covenants and agreements of the parties hereto contained in this Agreement Parties set forth herein including under Sections 2.9(c) and Article 8 hereof or in any certificate or other writing delivered pursuant hereto or in connection herewith shall survive of the Closing for Transaction Documents, including under the period explicitly specified therein (Seller Note, the Supply Agreement and if no such period is specified shall survive until the expiration of all applicable statutes of limitations or, to the extent there is no applicable statute of limitations, indefinitely). Notwithstanding the preceding sentences, any breach of representation, warranty, covenant or agreement in respect of which indemnity may be sought under this Assumption Agreement shall survive the time at which it would otherwise terminate pursuant to the preceding sentences, if a Claim Certificate with respect to such representation, warranty or covenant has been delivered in accordance with their terms.
(b) The representations, warranties, covenants and obligations of the Seller and Shareholder, and the rights and remedies that may be exercised in connection therewith, shall not be limited or otherwise affected by or as a result of any information furnished to, or any investigation made by or Knowledge of the Parent or Purchaser.
(c) For purposes of this Article 6 prior to the time Agreement, each statement or other item of such termination, until such time as every claim information set forth in such Claim Certificate has been fully resolved pursuant the Disclosure Schedules shall be deemed to be a representation and warranty made by the Seller and Shareholder in this Article 6Agreement.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Sagamore Holdings Inc), Asset Purchase Agreement (Jaco Electronics Inc)
Survival of Representations and Covenants. (a) The representations representations, warranties, covenants and warranties obligations of the parties hereto contained in this Agreement or in any certificate or other writing delivered pursuant hereto each party shall survive the Closing and shall expire on the last day of the Indemnity Period; provided however, that (a) the representations and warranties in Sections 3.01 (Corporate Existence and Power), 3.02 (Corporate Authorization), 3.05 (Capitalization), 3.06 (Ownership of Shares), 3.19 (Finders’ Fees) and 3.24 (Tax Matters) shall survive until thirty (30) calendar days after the expiration of all applicable statutes of limitations orClosing, to the extent there is no provided in this Section 9.1(a). If the Seller or Purchaser (i) had actual knowledge on or prior to the Closing that it was in material breach of a representation or warranty made by it, and (ii) allowed the Closing to occur, then the indemnification set forth in this Section 9 will not terminate as specified in the third sentence of this Section 9.1(a), but shall survive and continue indefinitely. All other representations and warranties (as well as covenants and obligations to be performed prior to the Closing Date) of the parties shall terminate on the earlier to occur of (i) six (6) months of the Closing Date and (ii) the expiration of the applicable statute of limitationslimitation period or periods legally applicable to them; provided, indefinitely and however, that if a Claim Notice relating to any representation or warranty is given to the other party on or prior to the date identified in clause (bi) or (ii) above, as applicable, then, notwithstanding anything to the representations and warranties in Section 3.22(l) (Employee Benefit Plans) shall survive until the third anniversary of the Closing Date. The covenants and agreements of the parties hereto contrary contained in this Agreement Section 9.1(a), the representations or warranties shall not so expire, but rather shall remain in any certificate or other writing delivered pursuant hereto or in connection herewith shall survive the Closing for the period explicitly specified therein (full force and if no such period is specified shall survive until the expiration of all applicable statutes of limitations or, to the extent there is no applicable statute of limitations, indefinitely). Notwithstanding the preceding sentences, any breach of representation, warranty, covenant or agreement in respect of which indemnity may be sought under this Agreement shall survive the time at which it would otherwise terminate pursuant to the preceding sentences, if a Claim Certificate with respect to such representation, warranty or covenant has been delivered in accordance with this Article 6 prior to the time of such termination, effect until such time as every claim all claims that are based upon the same general set of facts are fully and finally resolved, either by means of a written settlement agreement executed on behalf of the Seller and Purchaser or by means of a final, non-appealable judgment issued by a court of competent jurisdiction.
(b) The representations, warranties, covenants and obligations of the respective parties, and the rights and remedies that may be exercised by any of them, shall not be limited or otherwise affected by or as a result of any information furnished to, or any investigation made by or knowledge of, any of the parties or any of their Representatives. Any investigation by such persons shall be for their own protection only and shall not affect or impair any right or remedy hereunder.
(c) For purposes of this Agreement, each statement or other item of information set forth in the Disclosure Schedules shall be deemed to be a representation and warranty of the Seller.
(d) For purposes of this Agreement, a "Claim Notice" relating to a particular claim for indemnification shall be deemed to have been given if any applicable indemnitee, acting in good faith, delivers to the other party a written notice stating that such Claim Certificate has been fully resolved pursuant applicable indemnitee believes that it is entitled to this Article 6indemnification hereunder and setting forth (i) a brief description of the circumstances supporting such Indemnitee's belief, and (ii) a non-binding, preliminary estimate of the aggregate dollar amount of the Damages that have arisen and may arise as a direct or indirect result of such possible claim.
Appears in 1 contract
Survival of Representations and Covenants. The respective representations and warranties of the parties Companies, the Company Shareholders, Parent and the Merger Subs contained in this Agreement, or in any of the Ancillary Agreements, as the case may be, or in any Exhibit or Schedule delivered pursuant hereto or thereto shall survive the Closing Date, but shall expire on the earlier of the first anniversary of the Closing Date or the Parent's first public announcement of its earnings following completion by Parent's independent public accountants of the first audit of Parent's financial statements following the Closing Date covering the combined operations of Parent and the Companies, except that (i) the Companies' and the Company Shareholders' representations and warranties in Sections 4.16, 4.17, 4.19 and 9.02 hereof shall expire upon the expiration of all statutes of limitation applicable thereto; and (ii) the Companies' and the Company Shareholders' representations and warranties in Section 4.02, 4.05 and 4.24 hereof, and Parent's and the Merger Subs' representations and warranties in Section 5.02, 5.03, 5.04, 5.06, 5.08 and 5.09 hereof, shall survive indefinitely, and except with respect to, and to the extent of, any claim of which written notice specifying, in reasonable detail, the nature and amount of the claim has been given by one party to the other prior to such expiration. The respective covenants and agreements of the Companies, the Company Shareholders, Parent and the Merger Subs contained in this Agreement or in any certificate Exhibit or other writing delivered pursuant Schedule attached hereto shall survive (including, without limitation, the Closing and shall expire on the last day respective indemnification obligations of the Indemnity Period; provided however, that (a) the representations Company Shareholders and warranties Parent set forth in Sections 3.01 (Corporate Existence and Power), 3.02 (Corporate Authorization), 3.05 (Capitalization), 3.06 (Ownership of Shares), 3.19 (Finders’ Fees11.02(a) and 3.24 (Tax Matters) shall survive until thirty (30) calendar days after the expiration of all applicable statutes of limitations or, to the extent there is no applicable statute of limitations, indefinitely and (b) the representations and warranties in Section 3.22(l) (Employee Benefit Planshereof) shall survive until the third anniversary consummation of the Closing Date. The covenants and agreements of the parties hereto contained in this Agreement or in any certificate or other writing delivered pursuant hereto or in connection herewith shall survive the Closing for the period explicitly specified therein (and if no such period is specified shall survive until the expiration of all applicable statutes of limitations or, to the extent there is no applicable statute of limitations, indefinitely). Notwithstanding the preceding sentences, any breach of representation, warranty, covenant or agreement in respect of which indemnity may be sought under this Agreement shall survive the time at which it would otherwise terminate pursuant to the preceding sentences, if a Claim Certificate with respect to such representation, warranty or covenant has been delivered in accordance with this Article 6 prior to the time of such termination, until such time as every claim set forth in such Claim Certificate has been fully resolved pursuant to this Article 6Mergers.
Appears in 1 contract
Samples: Merger Agreement (Investors Financial Services Corp)
Survival of Representations and Covenants. (a) The representations and warranties of the parties hereto contained in this Agreement or in any certificate or other writing delivered pursuant hereto Parties shall expire twelve (12) months after the Closing Date (the “Expiration Date”); provided, however, that (i) each of the Apollo Fundamental Representations and the ReShape Fundamental Representations shall survive the Closing and shall expire on the last day of the Indemnity Period; provided however, that (a) the representations and warranties in Sections 3.01 (Corporate Existence and Power), 3.02 (Corporate Authorization), 3.05 (Capitalization), 3.06 (Ownership of Shares), 3.19 (Finders’ Fees) and 3.24 (Tax Matters) shall survive until thirty (30) calendar days after the expiration of all applicable statutes of limitations or, to the extent there is no applicable statute of limitations, indefinitely and (b) the representations and warranties in Section 3.22(l) (Employee Benefit Plans) shall survive continue until the third anniversary of date that is four (4) years following the Closing Date. The covenants , and agreements of (ii) that if a Claim Notice relating to any such representation or warranty is given to an indemnifying party on or prior to the parties hereto Expiration Date, then, notwithstanding anything to the contrary contained in this Agreement Section 9.1, such representation or warranty shall not so expire, but rather shall remain in full force and effect until such time as each claim made prior to the Expiration Date that is based directly upon, or that relates directly to, any certificate breach or alleged breach of such representation or warranty has been fully and finally resolved. The agreements, covenants and other writing delivered pursuant hereto or in connection herewith obligations of the Parties shall survive the Closing in accordance with their respective terms.
(b) It is the express intent of the Parties that, if the applicable survival period for an item as contemplated by this Section 9.1 is shorter than the period explicitly specified therein (and if no such period is specified shall survive until the expiration of all applicable statutes statute of limitations orthat would otherwise have been applicable to such item, to then, by contract, the extent there is no applicable statute of limitations, indefinitely). Notwithstanding the preceding sentences, any breach of representation, warranty, covenant or agreement in respect of which indemnity may be sought under this Agreement shall survive the time at which it would otherwise terminate pursuant to the preceding sentences, if a Claim Certificate limitations with respect to such representation, warranty or covenant has been delivered in accordance with this Article 6 prior item shall be reduced to the shortened survival period contemplated hereby. The Parties further acknowledge that the time of such termination, until such time as every claim periods set forth in such Claim Certificate has been fully resolved pursuant this Section 9.1 for the assertion of claims under this Agreement are the result of arms’-length negotiation among the Parties and that they intend for the time periods to this Article 6be enforced as agreed by the Parties.
Appears in 1 contract
Samples: Asset Purchase Agreement (ReShape Lifesciences Inc.)
Survival of Representations and Covenants. (a) The representations, warranties, covenants and obligations of each party to this Agreement shall survive (without limitation): (i) the Closing and the sale of the Specified Assets to the Purchaser; (ii) any sale or other disposition of any or all of the Specified Assets by the Purchaser; and (iii) the dissolution or liquidation of any party to this Agreement. Except as set forth in Section 9.1(c), all of said representations, warranties, covenants and obligations shall remain in full force and effect and shall survive for a period of one year following the distribution of the Stock Consideration to the shareholders of the Seller pursuant to the Plan of Dissolution.
(b) The representations, warranties, covenants and obligations of the Seller, and the rights and remedies that may be exercised by the Indemnitees, shall not be limited or otherwise affected by or as a result of any information furnished to, or any investigation made by or any knowledge of, any of the Indemnitees or any of their Representatives.
(c) The representations and warranties of the parties hereto contained set forth in this Agreement or in any certificate or other writing delivered pursuant hereto shall survive the Closing Sections 2 and 3 shall expire on the last day of the Indemnity Period; provided however, that (a) the representations and warranties in Sections 3.01 (Corporate Existence and Power), 3.02 (Corporate Authorization), 3.05 (Capitalization), 3.06 (Ownership of Shares), 3.19 (Finders’ Fees) and 3.24 (Tax Matters) shall survive until thirty (30) calendar days after the expiration of all applicable statutes of limitations or, to the extent there is no applicable statute of limitations, indefinitely and (b) the representations and warranties in Section 3.22(l) (Employee Benefit Plans) shall survive until the third first anniversary of the Closing Date. The covenants ; provided, however, that notwithstanding the foregoing, the representations and agreements warranties of Parent and the Purchaser shall expire not later than the date on which the Stock Consideration is paid to the Seller; and provided further, that if a Claim Notice (as defined below) relating to any representation or warranty set forth in any of said Sections is given to the Seller on or prior to the first anniversary of the parties hereto Closing Date, then, notwithstanding anything to the contrary contained in this Agreement Section 9.1(c), such representation or warranty shall not so expire, but rather shall remain in any certificate or other writing delivered pursuant hereto or in connection herewith shall survive the Closing for the period explicitly specified therein (full force and if no such period is specified shall survive until the expiration of all applicable statutes of limitations or, to the extent there is no applicable statute of limitations, indefinitely). Notwithstanding the preceding sentences, any breach of representation, warranty, covenant or agreement in respect of which indemnity may be sought under this Agreement shall survive the time at which it would otherwise terminate pursuant to the preceding sentences, if a Claim Certificate with respect to such representation, warranty or covenant has been delivered in accordance with this Article 6 prior to the time of such termination, effect until such time as each and every claim (including any indemnification claim asserted by any Indemnitee under Section 9.2) that is based directly or indirectly upon, or that relates directly or indirectly to, any Breach or alleged Breach of such representation or warranty has been fully and finally resolved, either by means of a written settlement agreement executed on behalf of the Seller, Parent and the Purchaser or by means of a final, non-appealable judgment issued by a court of competent jurisdiction.
(d) For purposes of this Agreement, a "Claim Notice" relating to a particular representation or warranty shall be deemed to have been given if any Indemnitee, acting in good faith, delivers to the Seller a written notice stating that such Indemnitee believes that there is or has been a possible Breach of such representation or warranty and containing (i) a brief description of the circumstances supporting such Indemnitee's belief that there is or has been such a possible Breach, and (ii) a non-binding, preliminary estimate of the aggregate dollar amount of the actual and potential Damages that have arisen and may arise as a direct or indirect result of such possible Breach.
(e) For purposes of this Agreement, each statement or other item of information set forth in such Claim Certificate has been fully resolved pursuant the Disclosure Schedule or in any update to the Disclosure Schedule shall be deemed to be a representation and warranty made by the Seller in this Article 6Agreement.
Appears in 1 contract
Survival of Representations and Covenants. The representations and warranties of the parties hereto contained in this Agreement or in any certificate or other writing delivered pursuant hereto shall survive the Closing and shall expire on the last day of the Indemnity Period; provided however, that (a) the representations The representations, warranties, covenants and warranties in Sections 3.01 (Corporate Existence and Power), 3.02 (Corporate Authorization), 3.05 (Capitalization), 3.06 (Ownership obligations of Shares), 3.19 (Finders’ Fees) and 3.24 (Tax Matters) each party shall survive until thirty (30without limitation): (i) calendar days after the expiration execution and delivery of this Agreement and the sale of the Shares to Purchaser; (ii) any subsequent sale or other disposition of any or all applicable statutes of limitations orthe Shares by Purchaser; (iii) the liquidation, to the extent there is no applicable statute dissolution or winding up of limitations, indefinitely any Selling Stockholder and (biv) the representations death of any Founder. All of said representations, warranties, covenants and warranties obligations shall remain in Section 3.22(l) (Employee Benefit Plans) full force and effect and shall survive until the third anniversary of date eighteen (18) months from the Closing Date. The covenants and agreements of ; provided, however, that if a Claim Notice relating to any representation or warranty is given to the parties hereto indemnifying party on or prior to the date eighteen (18) months from the Closing Date, then, notwithstanding anything to the contrary contained in this Agreement Section 6.1(a), such representation or warranty shall not so expire, but rather shall remain in full force and effect until the later of (i) the date eighteen (18) months from the Closing Date, or (ii) such time as each and every claim (including any indemnification claim asserted by any Indemnitee under Section 6.2) that is based directly or indirectly upon, or that relates directly or indirectly to, any breach or alleged breach of such representation or warranty has been fully and finally resolved, either by means of a written settlement agreement executed on behalf of the Selling Stockholders, the Founders and Purchaser or by means of a final, non-appealable judgment issued by a court of competent jurisdiction.
(b) The representations, warranties, covenants and obligations of the Founders, the Selling Stockholders and the Purchaser and the rights and remedies that may be exercised by the Purchaser Indemnitees or the Seller Indemnitees, as applicable, shall not be limited or otherwise affected by or as a result of any information furnished to, or any investigation made by or knowledge of, any of the Purchaser Indemnitees or the Seller Indemnitees, as applicable, or any of their representatives.
(c) For purposes of this Agreement, a "Claim Notice" relating to a particular representation or warranty shall be deemed to have been given if any Purchaser Indemnitee or the Seller Indemnitee, as applicable, acting in good faith, delivers to the indemnifying party a written notice stating that such Indemnitee believes that there is or has been a possible breach of such representation or warranty and containing (i) a brief description of the circumstances supporting such Indemnitee's belief that there is or has been such a possible breach, and (ii) a non-binding, preliminary estimate of the aggregate dollar amount of the actual and potential damages that have arisen and may arise as a direct or indirect result of such possible breach.
(d) For purposes of this Agreement, each statement or other item of information set forth in the Company Disclosure Schedule or Purchaser Disclosure Schedule, as applicable, or in any certificate or other writing delivered pursuant hereto or in connection herewith shall survive the Closing for the period explicitly specified therein (and if no such period is specified shall survive until the expiration of all applicable statutes of limitations or, update to the extent there is no applicable statute Company Disclosure Schedule or Purchaser Disclosure Schedule, as applicable, shall be deemed to be a representation and warranty made by each Founder, each of limitationsthe Selling Stockholders and the Purchaser, indefinitely). Notwithstanding the preceding sentencesas applicable, any breach of representation, warranty, covenant or agreement in respect of which indemnity may be sought under this Agreement shall survive the time at which it would otherwise terminate pursuant to the preceding sentences, if a Claim Certificate with respect to such representation, warranty or covenant has been delivered in accordance with this Article 6 prior to the time of such termination, until such time as every claim set forth in such Claim Certificate has been fully resolved pursuant to this Article 6Agreement.
Appears in 1 contract
Samples: Stock Purchase Agreement (Requisite Technology Inc /Co)
Survival of Representations and Covenants. (a) The representations and warranties of the parties hereto contained in this Agreement or in any certificate or other writing delivered pursuant hereto Parties shall expire twelve (12) months after the Closing Date (the “Expiration Date”); provided, however, that (i) each of the Apollo Fundamental Representations and the ReShape Fundamental Representations shall survive the Closing and shall expire on the last day of the Indemnity Period; provided however, that (a) the representations and warranties in Sections 3.01 (Corporate Existence and Power), 3.02 (Corporate Authorization), 3.05 (Capitalization), 3.06 (Ownership of Shares), 3.19 (Finders’ Fees) and 3.24 (Tax Matters) shall survive until thirty (30) calendar days after the expiration of all applicable statutes of limitations or, to the extent there is no applicable statute of limitations, indefinitely and (b) the representations and warranties in Section 3.22(l) (Employee Benefit Plans) shall survive continue until the third anniversary of date that is four (4) years following the Closing Date. The covenants , and agreements of (ii) that if a Claim Notice relating to any such representation or warranty is given to an indemnifying party on or prior to the parties hereto Expiration Date, then, notwithstanding anything to the contrary contained in this Agreement Section 9.1, such representation or warranty shall not so expire, but rather shall remain in full force and effect until such time as each claim made prior to the Expiration Date that is based directly upon, or that relates directly to, any certificate breach or alleged breach of such representation or warranty has been fully and finally resolved. The agreements, covenants and other writing delivered pursuant hereto or in connection herewith obligations of the Parties shall survive the Closing in accordance with their respective terms.
(b) It is the express intent of the Parties that, if the applicable survival period for an item as contemplated by this Section 9.1 is shorter than the period explicitly specified therein (and if no such period is specified shall survive until the expiration of all applicable statutes statute of limitations orthat would otherwise have been applicable to such item, to then, by contract, the extent there is no applicable statute of limitations, indefinitely). Notwithstanding the preceding sentences, any breach of representation, warranty, covenant or agreement in respect of which indemnity may be sought under this Agreement shall survive the time at which it would otherwise terminate pursuant to the preceding sentences, if a Claim Certificate limitations with respect to such representation, warranty or covenant has been delivered in accordance with this Article 6 prior item shall be reduced to the shortened survival period contemplated hereby. The Parties further acknowledge that the time of such termination, until such time as every claim periods set forth in such Claim Certificate has been fully resolved pursuant this Section 9.1 for the assertion of claims under this Agreement are the result of arms’-length negotiation among the Parties and that they intend for the time periods to this Article 6.be enforced as agreed by the Parties.\
Appears in 1 contract
Samples: Asset Purchase Agreement (Apollo Endosurgery, Inc.)
Survival of Representations and Covenants. (a) Except as set forth in Subsection 6.1(c), the representations, warranties, covenants and obligations of each Party to this Agreement shall survive: (i) the execution and delivery of this Agreement and the sale of the Patents to Purchaser; (ii) any subsequent permitted sale or other disposition of any or all of the Patents by Purchaser; and (iii) the dissolution or liquidation of any Party to this Agreement.
(b) The representations, warranties, covenants and obligations of Seller, and the rights and remedies that may be exercised by Purchaser, shall not be limited or otherwise affected by or as a result of any information furnished to, or any investigation made by or any knowledge of, Purchaser or any of its Representatives.
(c) Except with respect to any willful misrepresentation or fraud by Seller in connection with this Agreement, in which case all of such applicable representations and warranties of the parties hereto contained in this Agreement or in any certificate or other writing delivered pursuant hereto shall survive until the Closing fifth annual anniversary of the Effective Date, the representations and warranties set forth in Section 3 and Section 4 shall expire on the last day third annual anniversary of the Indemnity PeriodEffective Date; provided provided, however, that if a Claim Notice (aas defined in Subsection 6.1(d) the representations and warranties below) relating to any material breach or violation of any representation or warranty set forth in Sections 3.01 (Corporate Existence and Power), 3.02 (Corporate Authorization), 3.05 (Capitalization), 3.06 (Ownership of Shares), 3.19 (Finders’ Fees) and 3.24 (Tax Matters) shall survive until thirty (30) calendar days after the expiration of all applicable statutes of limitations or, Section 3 is given to Seller on or prior to the extent there is no applicable statute of limitations, indefinitely and (b) the representations and warranties in Section 3.22(l) (Employee Benefit Plans) shall survive until the third annual anniversary of the Closing Effective Date. The covenants and agreements of , then, notwithstanding anything to the parties hereto contrary contained in this Agreement Subsection 6.1(c), such representation or warranty shall not so expire, but rather shall remain in any certificate full force and effect until each and every claim has been fully and finally resolved, either by means of a written settlement agreement executed on behalf of Seller and Purchaser or other writing delivered pursuant hereto or in connection herewith shall survive the Closing for the period explicitly specified therein by means of a final, non-appealable judgment issued by a court of competent jurisdiction.
(and if no such period is specified shall survive until the expiration d) For purposes of all applicable statutes of limitations orthis Agreement, a “Claim Notice” relating to the extent there is no applicable statute of limitations, indefinitely). Notwithstanding the preceding sentences, any breach of representation, warranty, covenant or agreement in respect of which indemnity may be sought under this Agreement shall survive the time at which it would otherwise terminate pursuant to the preceding sentences, if a Claim Certificate with respect to such particular representation, warranty or covenant shall be deemed to have been given if a Party, acting in good faith, delivers to the other Party a written notice stating that the notifying Party believes that there is or has been delivered a possible breach or violation of any representations, warranties or covenants of the other Party and containing (i) a brief description of the circumstances supporting the notifying Party’s belief that there is or has been such a possible breach or violation and (ii) a non-binding, preliminary estimate of the aggregate dollar amount of the actual and potential damages that have arisen and may arise as a result of such possible breach or violation (the “Estimated Damages”).
(e) If Purchaser delivers a Claim Notice to Seller regarding a material breach or violation of any representation or warranty set forth in Section 3 at any time before the last payment of the Purchase Price has been paid in accordance with this Article 6 prior Section 2.2, then Purchaser will be entitled to withhold [...***...] an amount equal to the time of such termination, Estimated Damages (“Holdback Amount”) until such time as every claim set forth in such Claim Certificate has been fully resolved pursuant and finally resolved, either by means of a written settlement agreement executed on behalf of Seller and Purchaser or by means of a final, non-appealable judgment issued by a court of competent jurisdiction. To clarify the Holdback Amount shall not exceed [...***...]. The amount of damages that Purchaser is entitled to this Article 6receive as a result of the final resolution of such claims is referred to as the “Award Amount.” If the Award Amount is less than the Holdback Amount, Purchaser will be entitled to retain, and shall have no further obligation to pay to Seller the Award Amount, and Purchaser will pay to Seller the difference between the Holdback Amount and the Award Amount promptly after the resolution. If the Award Amount equals or exceeds the Holdback Amount, Purchaser will be entitled to retain, and shall have no further obligation to pay to Seller, the Holdback Amount.
Appears in 1 contract
Samples: Patent Purchase Agreement (Applied Micro Circuits Corp)
Survival of Representations and Covenants. 7.1.1 The representations covenants and warranties obligations of the parties hereto contained in this Agreement or in any certificate or other writing delivered pursuant hereto shall survive (i) until fully performed or fulfilled, unless non-compliance with such covenants or obligations is waived in writing by the Closing and shall expire on party or parties entitled to such performance or (ii) if not fully performed or fulfilled, until the last day expiration of the Indemnity Period; provided howeverrelevant statute of limitations.
7.1.2 Subject to Section 7.1.4 and except for the representations and warranties contained in Sections 3.5 and 3.10.6 (the “Excluded Representations”), that (ai) the representations and warranties set forth in Sections 3.01 3 and 4 shall expire twelve (Corporate Existence 12) months after the Execution Date if there is no Initial Effective Date, or twelve (12) months after Initial Effective Date or the applicable Second Effective Date, as the case may be, and Power), 3.02 (Corporate Authorization), 3.05 (Capitalization), 3.06 (Ownership of Shares), 3.19 (Finders’ Feesii) and 3.24 (Tax Matters) the Excluded Representations shall survive until thirty (30) calendar days after the expiration of all applicable statutes of limitations or, to the extent there is no applicable statute of limitationslimitations relating thereto (in any case, indefinitely as applicable, the “Expiration Date”); provided, however, that if a Claim Notice relating to any representation or warranty set forth in any of the provisions of Sections 3 or 4 is given to the Company or Purchaser, as the case may be, on or prior to the time and date of expiration for such representation or warranty, then, notwithstanding anything to the contrary contained in this Section 7.1 or any applicable statute of limitations (b) which the parties hereby waive), the expiration of such representation or warranty shall not effect the validity of any Claim expressly stated in any Claim Notice nor the asserting party’s rights to indemnification with respect to such Claim in accordance with this Section 7 until such Claim is finally resolved by the parties hereunder or by a court of competent jurisdiction and any amount payable hereunder are finally determined and paid. The representations, warranties, covenants and obligations of each party, and the rights and remedies that may be exercised by an Indemnitee, shall not be limited or otherwise affected by or as a result of any information furnished to, or any investigation made by or Knowledge of, the Indemnitee or any of their representatives. The parties recognize and agree that the representations and warranties also operate as bargained for promises and risk allocation devices and that, accordingly, any party’s Knowledge, shall not affect the right to indemnification or payment of Damages pursuant to this Section 7, or other remedy based on such representations, warranties, covenants, and obligations.
7.1.3 The representations, warranties, covenants and obligations of each party, and the rights and remedies that may be exercised by an Indemnitee, shall not be limited or otherwise affected by or as a result of any information furnished to, or any investigation made by or Knowledge of, the Indemnitee or any of their representatives. The parties recognize and agree that the representations and warranties also operate as bargained for promises and risk allocation devices and that, accordingly, any party’s Knowledge shall not affect the right to indemnification or payment of Damages pursuant to this Section 7, or other remedy based on such representations, warranties, covenants, and obligations.
7.1.4 Notwithstanding anything to the contrary contained in Section 3.22(l) (Employee Benefit Plans) shall survive until 7.1, if either the third anniversary Company or Purchaser commit any intentional misrepresentation or fraud related to any representation or warranty of the Closing Date. The covenants and agreements of the parties hereto contained in this Agreement Company or in any certificate or other writing delivered pursuant hereto or in connection herewith shall survive the Closing for the period explicitly specified therein (and if no such period is specified shall survive until the expiration of all applicable statutes of limitations or, to the extent there is no applicable statute of limitations, indefinitely). Notwithstanding the preceding sentences, any breach of representation, warranty, covenant or agreement in respect of which indemnity may be sought under this Agreement shall survive the time at which it would otherwise terminate pursuant to the preceding sentences, if a Claim Certificate with respect to such representation, warranty or covenant has been delivered in accordance with this Article 6 prior to the time of such termination, until such time as every claim Purchaser set forth in Sections 3 or 4, as applicable, then such representation or warranty shall not expire, but rather shall remain in full force and effect for an unlimited period of time (regardless of whether any Claim Certificate Notice relating to such representation or warranty is given prior to such time).
7.1.5 For purposes of this Agreement, a “Claim Notice” relating to a particular representation or warranty shall be deemed to have been given if any Indemnitee, acting in good faith, delivers to the Company or Purchaser, as the case may be, a written notice stating that such Indemnitee believes that there is or has been fully resolved pursuant a possible breach of such representation or warranty and containing (i) a brief description of the circumstances supporting such Indemnitee’s belief that there is or has been such a possible breach (the “Claim”) and (ii) a non-binding, reasonable preliminary estimate of the aggregate dollar amount of the actual and potential Damages that have arisen and may reasonably be expected to arise as a direct or indirect result of such possible breach.
7.1.6 For purposes of this Article 6Section 7, each statement or other item of information produced and created by the Company pertaining to the Company, the Acquired Assets or the Leased Facilities contained in the Exhibits or Schedules shall be deemed to be a representation and warranty made by the Company.
Appears in 1 contract
Survival of Representations and Covenants. 8.1.1 The covenants and agreements of each Party shall survive the Closing as of the Transactions for the periods specified in such covenants and agreements, or if no period is specified, until the fourth anniversary of the Closing.
8.1.2 The representations, warranties, covenants and obligations of Seller and the rights and remedies that may be exercised by any Indemnified Party shall not be limited or otherwise affected by or as a result of any information furnished to, or any investigation made by or any knowledge of, any of the Indemnified Parties or any of their Representatives.
8.1.3 The representations and warranties of the parties hereto Seller contained in this Agreement or shall remain in any certificate or other writing delivered pursuant hereto shall survive the Closing full force and effect and shall expire on the last day six month anniversary of the Indemnity PeriodClosing; provided provided, however, that the foregoing expiration date shall not apply to (ai) claims based on fraud, intentional misrepresentation or willful breach which shall survive for the applicable statute of limitations and (ii) claims related to breaches of the representations and warranties contained in Sections 3.01 Section 4.1 (Corporate Existence and PowerOrganization), 3.02 Section 4.2 (Corporate Due Authorization), 3.05 (Capitalization), 3.06 ; Enforceability) and Section 4.4 (Ownership of SharesMembership Interests), 3.19 (Finders’ Fees) and 3.24 (Tax Matters) shall survive until thirty (30) calendar days after the expiration of all applicable statutes of limitations or, to the extent there is no applicable statute of limitations, indefinitely and (b) the representations and warranties in Section 3.22(l) (Employee Benefit Plans) which shall survive until the third fourth anniversary of the Closing Date. Closing; provided further, however, that if Buyer notifies Seller of a claim specifying the factual basis of that claim in reasonable detail to the extent then known by Buyer on or prior to the applicable expiration date, then such representation or warranty shall not so expire, but rather shall remain in full force and effect until such time as such claim has been fully and finally resolved, either by means of a written settlement agreement or by means of a final, non-appealable judgment issued by a court of competent jurisdiction.
8.1.4 The covenants representations and agreements warranties of the parties hereto Buyer contained in this Agreement or in any certificate or other writing delivered pursuant hereto or in connection herewith shall survive the Closing for the period explicitly specified therein (and if no such period is specified shall survive until the expiration fourth anniversary of all applicable statutes of limitations or, to the extent there is no applicable statute of limitations, indefinitely). Notwithstanding the preceding sentences, any breach of representation, warranty, covenant or agreement in respect of which indemnity may be sought under this Agreement shall survive the time at which it would otherwise terminate pursuant to the preceding sentences, if a Claim Certificate with respect to such representation, warranty or covenant has been delivered in accordance with this Article 6 prior to the time of such termination, until such time as every claim set forth in such Claim Certificate has been fully resolved pursuant to this Article 6Closing.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Pacific Ethanol, Inc.)
Survival of Representations and Covenants. The (a) All representations and warranties of made by the parties hereto contained in this Agreement or in any certificate or other writing delivered pursuant hereto Company herein shall survive the Closing and shall expire on twenty-four (24) months after the last day of the Indemnity PeriodClosing Date; provided provided, however, that (ai) the representations and warranties in Sections 3.01 2.1 (Corporate Existence and PowerDue Organization; Etc.) 2.5 (Capitalization, Etc.) 2.28 (Authority; Binding Nature of Agreements), 3.02 2.29 (Corporate Authorization), 3.05 (Capitalization), 3.06 (Ownership of Shares), 3.19 (Finders’ FeesNon-Contravention; Consents) and 3.24 2.30 (Tax MattersBrokers) shall survive until thirty (30) calendar days after the expiration of all applicable statutes of limitations or, to the extent there is no applicable statute of limitations, indefinitely and (b) the representations and warranties in Section 3.22(l) (Employee Benefit Plans) shall survive until the third anniversary of the Closing Date. The covenants and agreements of the parties hereto contained in this Agreement or in any certificate or other writing delivered pursuant hereto or in connection herewith shall survive the Closing for the period explicitly specified therein indefinitely and (ii) Sections 2.19 (Taxes) and if no such period is specified 2.21 (Employee Benefit Plans and Compensation) shall survive the Closing until one hundred eighty (180) days following the expiration of all applicable statutes of limitations or, to the extent there is no applicable statute of limitationslimitations (including any extension thereof) (collectively, indefinitelythe items in (i) and (ii). Notwithstanding , the preceding sentences“Excluded Representations”).
(b) The representations, warranties and covenants of the Company, and the rights and remedies that may be exercised by the Indemnitees, shall not be limited or otherwise affected by or as a result of (and each Indemnitee shall be deemed to have relied upon such representations, warranties and covenants notwithstanding) any information furnished to, or any investigation made by or Knowledge of, any breach of representationthe Indemnitees or any of their Representatives.
(c) All representations and warranties made by Parent and the Merger Sub herein shall terminate as of immediately following the Closing.
(d) Unless otherwise expressly set forth in this Agreement, warranty, covenant or agreement the covenants and agreements set forth in respect of which indemnity may be sought under this Agreement shall survive the time at which it would otherwise terminate pursuant to Closing and remain in effect indefinitely.
(e) The provisions of this Section 8 shall apply and become effective only if the preceding sentences, if a Claim Certificate with respect to such representation, warranty or covenant has been delivered in accordance with this Article 6 prior to the time of such termination, until such time as every claim set forth in such Claim Certificate has been fully resolved pursuant to this Article 6Transactions are consummated.
Appears in 1 contract
Survival of Representations and Covenants. (a) Subject to Section 9.1(c), the representations, warranties, covenants and obligations of each party to this Agreement shall survive (without limitation): (i) the Closing and the sale of the Acquired Assets to the Purchaser; (ii) any sale or other disposition of any or all of the Business or the Acquired Assets by the Purchaser; and (iii) the dissolution of any party to this Agreement.
(b) The representations, warranties, covenants and obligations of the Seller and the rights and remedies that may be exercised by the Indemnitees shall not be limited or otherwise affected by or as a result of any information furnished to, or any investigation made by or any Knowledge of, any of the Indemnitees or any of their Representatives, provided that if the Seller updates its Disclosure Schedule prior to the Closing Date and the Purchaser elects to close the Transactions, the representations and warranties affected by such updates shall be deemed supplemented and amended for determining the accuracy thereof. The representations, warranties, covenants and obligations of the Purchaser and the rights and remedies that may be exercised by the Seller shall not be limited or otherwise affected by or as a result of any information furnished to, or any investigation made by or any Knowledge of, the Seller or any of its Representatives.
(c) The representations and warranties of the parties hereto contained set forth in this Agreement or (other than those set forth in any certificate or other writing delivered pursuant hereto Sections 2.1, 2.13, 2.15, 2.16, 3.1 and 3.2 (the “Specified Representations”), which shall remain in full force and effect and shall survive the Closing for an unlimited period of time, except with respect to third-party claims as to which each such representation and warranty shall expire on the last day of the Indemnity Period; provided however, that (a) the representations and warranties in Sections 3.01 (Corporate Existence and Power), 3.02 (Corporate Authorization), 3.05 (Capitalization), 3.06 (Ownership of Shares), 3.19 (Finders’ Fees) and 3.24 (Tax Matters) shall survive until thirty (30) calendar days six months after the expiration of all applicable statutes the relevant statute of limitations or, to the extent there is no applicable statute of limitations, indefinitely and (b) the representations and warranties in Section 3.22(l) (Employee Benefit Plans) shall survive until the third anniversary of the Closing Date. The covenants and agreements of the parties hereto contained in this Agreement or in any certificate or other writing delivered pursuant hereto or in connection herewith shall survive the Closing for the period explicitly specified therein (and if no such period is specified shall survive until the expiration of all applicable statutes of limitations or, to the extent there is no applicable statute of limitations, indefinitely). Notwithstanding the preceding sentences, any breach of representation, warranty, covenant or agreement in respect of which indemnity may be sought under this Agreement shall survive the time at which it would otherwise terminate pursuant to the preceding sentences, if a Claim Certificate with respect to such representationthird-party claims, and those set forth in Section 2.18, which shall remain in full force and effect and shall survive for a period of 18 months after the Closing Date) shall expire one year after the Closing Date; provided, however, that if a notice relating to the Breach of any representation or warranty of a party set forth in any of said Sections is given to such party on or covenant has been delivered in accordance with this Article 6 prior to the time date that is one year after the Closing Date (or 18 months after the Closing Date, in the case of Breaches of Section 2.18), then, notwithstanding anything to the contrary contained in this Section 9.1(c), such terminationrepresentation or warranty shall not so expire, but rather shall remain in full force and effect until such time as each and every claim set forth in such Claim Certificate has been fully resolved pursuant to this Article 6.that is based directly or indirectly upon, or that relates directly or indirectly to, any Breach or alleged Breach
Appears in 1 contract
Survival of Representations and Covenants. The representations and warranties of the parties hereto Parties contained in this Agreement or in any certificate or other writing delivered pursuant hereto shall survive until the Closing and shall expire on the last day termination of the Indemnity Escrow Period; provided howeverprovided, that (a) the representations and warranties contained in Sections 3.01 (Corporate Existence and Power), 3.02 (Corporate Authorization), 3.05 (Capitalization), 3.06 (Ownership of Shares), 3.19 (Finders’ Fees) and 3.24 Section 5.21 (Tax Matters) (other than the representations and warranties in Section 5.21(p)) shall survive until the date that is thirty (30) calendar days after the expiration of all applicable statutes of limitations or, to the extent there is no applicable statute of limitationslimitations for such representations and warranties expires, indefinitely and (b) the representations and warranties contained in Section 3.22(l) (Employee Benefit Plans5.21(p) shall survive until the third anniversary Section 5.21(p) Survival Date, and (c) the Company Fundamental Representations and the Seller Fundamental Representations, in each case, shall survive indefinitely; provided, further, that any claim that is properly asserted in writing pursuant to this Article 10 prior to the expiration of the Closing Date. The covenants and agreements of the parties hereto contained in this Agreement survival period applicable to such representation or in any certificate or other writing delivered pursuant hereto or in connection herewith shall survive the Closing for the period explicitly specified therein (and if no such period is specified warranty set forth above shall survive until the expiration of all applicable statutes of limitations or, to the extent there such claim is no applicable statute of limitations, indefinitely)finally resolved and satisfied. Notwithstanding the preceding sentences, any breach of representation, warranty, covenant or agreement All covenants and other agreements contained in respect of which indemnity may be sought under this Agreement shall survive the time at which it Closing in accordance with their respective terms. It is the express intent of the Parties that, if the applicable survival period for an item as contemplated by this Section 10.01 is shorter than the statute of limitations that would otherwise terminate pursuant have been applicable to such item, then, by contract, the preceding sentences, if a Claim Certificate applicable statute of limitations with respect to such representation, warranty or covenant has been delivered in accordance with this Article 6 prior item shall be reduced to the shortened survival period contemplated hereby. The Parties further acknowledge that the time of such termination, until such time as every claim periods set forth in such Claim Certificate has been fully resolved pursuant this Section 10.01 for the assertion of claims under this Agreement are the result of arms’-length negotiation among the Parties and that they intend for the time periods to this Article 6be enforced as agreed by the Parties.
Appears in 1 contract
Survival of Representations and Covenants. (a) The representations, warranties, covenants and obligations of each party to this Agreement shall survive (without limitation): (i) the Closing and the sale of the Assets to the Purchaser; (ii) any sale or other disposition of any or all of the Assets by the Purchaser; and (iii) the death or dissolution of any party to this Agreement. Except as set forth in Section 6.1(c), all of said representations, warranties, covenants and obligations shall remain in full force and effect and shall survive for an unlimited period of time.
(b) The representations, warranties, covenants and obligations of the Shareholder and the Seller, and the rights and remedies that may be exercised by the Indemnitees, shall not be limited or otherwise affected by or as a result of any information furnished to, or any investigation made by or any knowledge of, any of the Indemnitees or any of their Representatives.
(c) Subject to Section 6.1(d), the representations and warranties of the parties hereto contained set forth in this Agreement or in any certificate or other writing delivered pursuant hereto shall survive the Closing and Section 2 shall expire on the last day of the Indemnity Period; provided however, that (a) the representations and warranties in Sections 3.01 (Corporate Existence and Power), 3.02 (Corporate Authorization), 3.05 (Capitalization), 3.06 (Ownership of Shares), 3.19 (Finders’ Fees) and 3.24 (Tax Matters) shall survive until thirty (30) calendar days after the expiration of all applicable statutes of limitations or, to the extent there is no applicable statute of limitations, indefinitely and (b) the representations and warranties in Section 3.22(l) (Employee Benefit Plans) shall survive until the third fourth anniversary of the Closing Date. The covenants and agreements ; provided, however, that if a Claim Notice (as defined below) relating to any representation or warranty set forth in any of said Sections is given to the Shareholder's Representative on or prior to the fourth anniversary of the parties hereto Closing Date, then, notwithstanding anything to the contrary contained in this Agreement Section 6.1(c), such representation or warranty shall not so expire, but rather shall remain in any certificate or other writing delivered pursuant hereto or in connection herewith shall survive the Closing for the period explicitly specified therein (full force and if no such period is specified shall survive until the expiration of all applicable statutes of limitations or, to the extent there is no applicable statute of limitations, indefinitely). Notwithstanding the preceding sentences, any breach of representation, warranty, covenant or agreement in respect of which indemnity may be sought under this Agreement shall survive the time at which it would otherwise terminate pursuant to the preceding sentences, if a Claim Certificate with respect to such representation, warranty or covenant has been delivered in accordance with this Article 6 prior to the time of such termination, effect until such time as each and every claim (including any indemnification claim asserted by any Indemnitee under Section 6.2) that is based directly or indirectly upon, or that relates directly or indirectly to, any Breach or alleged Breach of such representation or warranty has been fully and finally resolved, either by means of a written settlement agreement executed on behalf of the Shareholder's Representative and the Purchaser or by means of a final, non-appealable judgment issued by a court of competent jurisdiction.
(d) Notwithstanding anything to the contrary contained in Section 6.1(c) (and without limiting the generality of anything contained in Section 6.1(a)), if the Shareholder or the Seller had knowledge, on or prior to the Closing Date, of any circumstance that constitutes or that has given rise or could be expected to give rise, directly or indirectly, to any Breach of any representation or warranty set forth in Section 2, then such representation or warranty shall not expire, but rather shall remain in full force and effect for an unlimited period of time (regardless of whether any Claim Certificate Notice relating to such representation or warranty is ever given).
(e) For purposes of this Agreement, a "Claim Notice" relating to a particular representation or warranty shall be deemed to have been given if any Indemnitee, acting in good faith, delivers to the Shareholders' Representative a written notice stating that such Indemnitee believes that there is or has been fully resolved pursuant a possible Breach of such representation or warranty and containing (i) a brief description of the circumstances supporting such Indemnitee's belief that there is or has been such a possible Breach, and (ii) a non-binding, preliminary estimate of the aggregate dollar amount of the actual and potential Damages that have arisen and may arise as a direct or indirect result of such possible Breach.
(f) For purposes of this Agreement, each statement or other item of information set forth in the Disclosure Schedule or in any update to the Disclosure Schedule shall be deemed to be a representation and warranty made by the Shareholder and the Seller in this Article 6Agreement.
Appears in 1 contract
Survival of Representations and Covenants. The (a) Subject to Sections 11.1(b), 11.1(c) and 11.1(d), the representations and warranties warranties, covenants and obligations of the parties hereto contained in this Agreement or in any certificate or other writing delivered pursuant hereto each party shall survive (without limitation):
(i) the Closing and the sale of the Securities and the Xxxxxxx Shares to the Purchaser;
(ii) the sale or other disposition of any or all of the Securities and the Xxxxxxx Shares by the Purchaser; and
(iii) any Acquisition Transaction effected or otherwise effected or otherwise involving the Purchaser and SFG or BEA;
(b) Subject to Section 11.1(c), all of the said representations, warranties, covenants and obligations shall expire remain in full force and effect and shall survive until the earlier of (the "FIRST EXPIRY DATE"):
(i) the final day of the 18th month following the date of this Agreement; or
(ii) the date of the report of the Purchaser's independent auditor on the Purchaser's financial statements for the year ended December 31, 2000.
(c) Any claims for Damages concerning the Breaches of any Specified Representations or fraud shall remain in full force and effect and shall survive from the Closing Date until the last day of the Indemnity Period; provided however36th month following the date of this Agreement (the "SECOND EXPIRY DATE").
(d) The representations, warranties, covenants and obligations of SFG, the Selling Securityholders and the Elliotts, and the rights and remedies that (a) may be exercised by the representations and warranties in Sections 3.01 (Corporate Existence and Power)Indemnitees, 3.02 (Corporate Authorization)shall not be limited or otherwise affected by or as a result of any information furnished to, 3.05 (Capitalization)or any investigation made by or Knowledge of, 3.06 (Ownership of Shares), 3.19 (Finders’ Fees) and 3.24 (Tax Matters) shall survive until thirty (30) calendar days after the expiration of all applicable statutes of limitations or, to the extent there is no applicable statute of limitations, indefinitely and (b) the representations and warranties in Section 3.22(l) (Employee Benefit Plans) shall survive until the third anniversary any of the Closing Date. The covenants and agreements Indemnitees or any of the parties hereto contained in this Agreement or in any certificate or other writing delivered pursuant hereto or in connection herewith shall survive the Closing for the period explicitly specified therein (and if no such period is specified shall survive until the expiration of all applicable statutes of limitations or, to the extent there is no applicable statute of limitations, indefinitely). Notwithstanding the preceding sentences, any breach of representation, warranty, covenant or agreement in respect of which indemnity may be sought under this Agreement shall survive the time at which it would otherwise terminate pursuant to the preceding sentences, if a Claim Certificate with respect to such representation, warranty or covenant has been delivered in accordance with this Article 6 prior to the time of such termination, until such time as every claim set forth in such Claim Certificate has been fully resolved pursuant to this Article 6their Representatives.
Appears in 1 contract
Survival of Representations and Covenants. The (a) Subject to Sections 11.1(b), 11.1(c) and 11.1(d), the representations and warranties warranties, covenants and obligations of the parties hereto contained in this Agreement or in any certificate or other writing delivered pursuant hereto each party shall survive (without limitation):
(i) the Closing and the sale of the Securities and the Elliott Shares to the Purchasxx;
(ii) the sale or other disposition of any or all of the Securities and the Elliott Shares by the Purchasxx; xxx
(iii) any Acquisition Transaction effected or otherwise effected or otherwise involving the Purchaser and SFG or BEA;
(b) Subject to Section 11.1(c), all of the said representations, warranties, covenants and obligations shall expire remain in full force and effect and shall survive until the earlier of (the "First Expiry Date"):
(i) the final day of the 18th month following the date of this Agreement; or
(ii) the date of the report of the Purchaser's independent auditor on the Purchaser's financial statements for the year ended December 31, 2000.
(c) Any claims for Damages concerning the Breaches of any Specified Representations or fraud shall remain in full force and effect and shall survive from the Closing Date until the last day of the Indemnity Period; provided however36th month following the date of this Agreement (the "Second Expiry Date").
(d) The representations, warranties, covenants and obligations of SFG, the Selling Securityholders and the Elliotts, and the rights and remedies that (a) may be exercised by the representations and warranties in Sections 3.01 (Corporate Existence and Power)Indemnitees, 3.02 (Corporate Authorization)shall not be limited or otherwise affected by or as a result of any information furnished to, 3.05 (Capitalization)or any investigation made by or Knowledge of, 3.06 (Ownership of Shares), 3.19 (Finders’ Fees) and 3.24 (Tax Matters) shall survive until thirty (30) calendar days after the expiration of all applicable statutes of limitations or, to the extent there is no applicable statute of limitations, indefinitely and (b) the representations and warranties in Section 3.22(l) (Employee Benefit Plans) shall survive until the third anniversary any of the Closing Date. The covenants and agreements Indemnitees or any of the parties hereto contained in this Agreement or in any certificate or other writing delivered pursuant hereto or in connection herewith shall survive the Closing for the period explicitly specified therein (and if no such period is specified shall survive until the expiration of all applicable statutes of limitations or, to the extent there is no applicable statute of limitations, indefinitely). Notwithstanding the preceding sentences, any breach of representation, warranty, covenant or agreement in respect of which indemnity may be sought under this Agreement shall survive the time at which it would otherwise terminate pursuant to the preceding sentences, if a Claim Certificate with respect to such representation, warranty or covenant has been delivered in accordance with this Article 6 prior to the time of such termination, until such time as every claim set forth in such Claim Certificate has been fully resolved pursuant to this Article 6their Representatives.
Appears in 1 contract
Survival of Representations and Covenants. (a) The representations representations, warranties, covenants and warranties obligations of the parties hereto contained in each party to this Agreement or in any certificate or other writing delivered pursuant hereto shall survive (without limitation): (i) the Closing and the sale of the Shares to the Company; (ii) any sale or other disposition of any or all of the Shares by the Company; and (iii) the sale or dissolution of any party to this Agreement, and (except for those set forth in Sections 2.1, 3.1, 3.3, 3.14, 3.17, 3.21 and 5.7) shall expire on the last day of the Indemnity Period; provided however, that (a) the representations and warranties in Sections 3.01 (Corporate Existence and Power), 3.02 (Corporate Authorization), 3.05 (Capitalization), 3.06 (Ownership of Shares), 3.19 (Finders’ Fees) and 3.24 (Tax Matters) shall survive until thirty (30) calendar days after the expiration of all applicable statutes of limitations or, to the extent there is no applicable statute of limitations, indefinitely and (b) the representations and warranties in Section 3.22(l) (Employee Benefit Plans) shall survive until the third second anniversary of the Closing Date. The covenants Those representations and agreements of the parties hereto contained warranties set forth in this Agreement or in any certificate or other writing delivered pursuant hereto or in connection herewith shall survive the Closing for the period explicitly specified therein (Sections 3.14 and if no such period is specified 3.17 shall survive until 30 days after the expiration of all applicable statutes of limitations or, to the extent there is no applicable statute of limitationslimitations period, indefinitely)and the representations, warranties, covenants and obligations set forth in Sections 2.1, 3.1, 3.3, 3.21 and 5.7 shall survive for an unlimited period of time. Notwithstanding No party shall be entitled to any remedy resulting from the preceding sentences, any breach Breach of a representation, warranty, covenant or agreement obligation of the other party unless the Breaching party has received during the applicable survival period a Claim Notice (as defined in respect of which indemnity may be sought under this Agreement shall survive the time at which it would otherwise terminate pursuant to Recapitalization Agreement). Notwithstanding the preceding sentencesforegoing, if a Claim Certificate Notice relating to any representation, warranty, covenant or obligation is given to Maxtor on or prior to the second anniversary of the Closing Date (or such longer survival period as applicable), then, notwithstanding anything to the contrary contained in this Section 10.1(a), such representation or warranty shall not so expire, but rather shall remain in full force and effect solely with respect to such representation, warranty or covenant has been delivered in accordance with this Article 6 prior to the time of such termination, claim until such time as each and every claim specifically set forth in such Claim Certificate Notice has been fully resolved pursuant to and finally resolved, either by means of a written settlement agreement executed on behalf of Maxtor and the Company or by means of a final, non-appealable judgment issued by a court of competent jurisdiction.
(b) For purposes of this Article 6.Agreement, each statement or other item of infor-
Appears in 1 contract
Samples: Redemption Agreement (International Manufacturing Services Inc)
Survival of Representations and Covenants. (a) The covenants and agreements of each Party shall survive the Closing as of the Transactions for the periods specified in such covenants and agreements, or if no period is specified, until the fourth anniversary of the Closing.
(b) The representations, warranties, covenants and obligations of Seller and the rights and remedies that may be exercised by any Indemnified Party shall not be limited or otherwise affected by or as a result of any information furnished to, or any investigation made by or any knowledge of, any of the Indemnified Parties or any of their Representatives.
(c) The representations and warranties of the parties hereto Seller contained in this Agreement or shall remain in any certificate or other writing delivered pursuant hereto shall survive the Closing full force and effect and shall expire on the last day six month anniversary of the Indemnity PeriodClosing; provided provided, however, that the foregoing expiration date shall not apply to (ai) claims based on fraud, intentional misrepresentation or willful breach which shall survive for the applicable statute of limitations and (ii) claims related to breaches of the representations and warranties contained in Sections 3.01 Section 3.1 (Corporate Existence and PowerOrganization), 3.02 Section 3.2 (Corporate Due Authorization), 3.05 (Capitalization), 3.06 ; Enforceability) and Section 3.4 (Ownership of SharesMembership Interests), 3.19 (Finders’ Fees) and 3.24 (Tax Matters) shall survive until thirty (30) calendar days after the expiration of all applicable statutes of limitations or, to the extent there is no applicable statute of limitations, indefinitely and (b) the representations and warranties in Section 3.22(l) (Employee Benefit Plans) which shall survive until the third fourth anniversary of the Closing Date. Closing; provided further, however, that if Buyer notifies Seller of a claim specifying the factual basis of that claim in reasonable detail to the extent then known by Buyer on or prior to the applicable expiration date, then such representation or warranty shall not so expire, but rather shall remain in full force and effect until such time as such claim has been fully and finally resolved, either by means of a written settlement agreement or by means of a final, non-appealable judgment issued by a court of competent jurisdiction.
(d) The covenants representations and agreements warranties of the parties hereto Buyer contained in this Agreement or in any certificate or other writing delivered pursuant hereto or in connection herewith shall survive the Closing for the period explicitly specified therein (and if no such period is specified shall survive until the expiration fourth anniversary of all applicable statutes of limitations or, to the extent there is no applicable statute of limitations, indefinitely). Notwithstanding the preceding sentences, any breach of representation, warranty, covenant or agreement in respect of which indemnity may be sought under this Agreement shall survive the time at which it would otherwise terminate pursuant to the preceding sentences, if a Claim Certificate with respect to such representation, warranty or covenant has been delivered in accordance with this Article 6 prior to the time of such termination, until such time as every claim set forth in such Claim Certificate has been fully resolved pursuant to this Article 6Closing.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Pacific Ethanol, Inc.)
Survival of Representations and Covenants. (a) The representations and warranties of the parties hereto Selling Shareholders contained in this Agreement or in any certificate or other writing delivered pursuant hereto shall survive the Closing and shall expire on the last day (i) in respect of the Indemnity Period; provided however, that Fundamental Representations (a) other than the representations and warranties set forth in Sections 3.01 Section 3.15 (Corporate Existence and PowerBenefit Plans)), 3.02 shall survive without expiration; (Corporate Authorizationii) in respect of the representations and warranties set forth in Section 3.13 (Taxes) and Section 3.15 (Benefit Plans), 3.05 (Capitalization), 3.06 (Ownership of Shares), 3.19 (Finders’ Fees) and 3.24 (Tax Matters) shall survive until thirty ninety (3090) calendar days after the expiration of all applicable statutes the statute of limitations or, to the extent there is no applicable statute thereto; (iii) in respect of limitations, indefinitely and (b) the representations and warranties set forth in Section 3.22(l3.08 (Software; Products; Services; Computer Systems) and Section 3.09 (Employee Benefit PlansIntellectual Property), shall terminate on the date which is thirty-six (36) months from the Closing Date; and (iv) in respect of all other representations and warranties made by the Selling Shareholders or the Company, shall terminate on the date which is twenty-four (24) months from the Closing Date; provided, however, that such obligations to indemnify and hold harmless shall not terminate with respect to any claim as to which an Indemnified Party shall have, before the expiration of the applicable period, previously delivered a notice of such claim pursuant to Section 6.04 to the applicable Indemnifying Party.
(b) The representations and warranties of Purchaser contained in this Agreement (i) in respect of Section 4.02 (Authority; Execution and Delivery, Enforceability), and Section 4.06 (Brokers’ Fees) shall survive until without expiration and (ii) all other representations and warranties made by Purchaser shall survive the third anniversary Closing for a period of twenty-four (24) months from the Closing Date. ; provided, however, that such obligations to indemnify and hold harmless shall not terminate with respect to any claim as to which an Indemnified Party shall have, before the expiration of the applicable period, previously delivered a notice of such claim (stating in reasonable detail the basis of such claim) pursuant to Section 6.04 to the applicable Indemnifying Party.
(c) The covenants and agreements of the parties hereto each party contained in this Agreement or in any certificate or other writing delivered pursuant hereto or in connection herewith (including this Article VI) shall survive the Closing for the period explicitly specified therein (therein, and if no such period is specified shall survive until the expiration of all applicable statutes of limitations ornot specified, to the extent there is no applicable statute of limitations, indefinitely). Notwithstanding the preceding sentences, any breach of representation, warranty, covenant or agreement in respect of which indemnity may be sought under this Agreement shall survive the time at which it would otherwise terminate pursuant to the preceding sentences, if a Claim Certificate with respect to such representation, warranty or covenant has been delivered in accordance with this Article 6 prior to the time of such termination, until such time as every claim set forth in such Claim Certificate has been fully resolved pursuant to this Article 6without expiration.
Appears in 1 contract
Samples: Stock Purchase Agreement (Zix Corp)
Survival of Representations and Covenants. (a) The representations, warranties, covenants and obligations of each party to this Agreement shall survive (without limitation): (i) the Closing and the sale of the Assets to the Purchaser; (ii) any sale or other disposition of any or all of the Assets by the Purchaser; and (iii) the dissolution of any party to this Agreement. All of said representations, warranties, covenants and obligations shall remain in full force and effect and shall survive for a period of two years from the date of Closing, with the exception of those representations and warranties of the parties hereto contained Seller under Section 2.4, which shall remain in this Agreement or in any certificate or other writing delivered pursuant hereto full force and effect and shall survive for a period of four years from the Closing and shall expire on the last day date of the Indemnity Period; provided however, that (a) the representations and warranties in Sections 3.01 (Corporate Existence and Power), 3.02 (Corporate Authorization), 3.05 (Capitalization), 3.06 (Ownership of Shares), 3.19 (Finders’ Fees) and 3.24 (Tax Matters) shall survive until thirty (30) calendar days after the expiration of all applicable statutes of limitations or, to the extent there is no applicable statute of limitations, indefinitely and Closing.
(b) the representations The representations, warranties, covenants and warranties in Section 3.22(l) (Employee Benefit Plans) shall survive until the third anniversary obligations of the Closing Date. The covenants Seller, and agreements the rights and remedies that may be exercised by the Purchaser, shall not be limited or otherwise affected by or as a result of any information furnished to, or any investigation made by or any knowledge of, the Purchaser.
(c) For purposes of this Agreement, a "CLAIM NOTICE" relating to a particular representation or warranty shall be deemed to have been given if the Purchaser, acting in good faith, delivers to the Seller a written notice stating that the Purchaser believes that there is or has been a possible Breach of such representation or warranty and containing (i) a brief description of the parties hereto contained in this Agreement or in any certificate or other writing delivered pursuant hereto or in connection herewith shall survive circumstances supporting the Closing for the period explicitly specified therein (and if no such period is specified shall survive until the expiration of all applicable statutes of limitations or, to the extent Purchaser's belief that there is no applicable statute of limitations, indefinitely). Notwithstanding the preceding sentences, any breach of representation, warranty, covenant or agreement in respect of which indemnity may be sought under this Agreement shall survive the time at which it would otherwise terminate pursuant to the preceding sentences, if a Claim Certificate with respect to such representation, warranty or covenant has been delivered in accordance with this Article 6 prior to such a possible Breach, and (ii) a non-binding, preliminary estimate of the time aggregate dollar amount of the actual and potential Damages that have arisen and may arise as a direct or indirect result of such termination, until such time as every claim set forth in such Claim Certificate has been fully resolved pursuant to this Article 6possible Breach.
Appears in 1 contract
Samples: Asset Purchase Agreement (Emergent Information Technologies Inc)
Survival of Representations and Covenants. (a) The representations and warranties of the parties hereto contained each party set forth in this Agreement or in any certificate other Transactional Agreement or other writing delivered pursuant hereto any Exhibit or Schedule shall survive for a period of twelve (12) months from the Closing Date and thereafter shall expire on be deemed fully satisfied and waived for all purposes, provided however that notwithstanding the last day foregoing, (i) such limitation shall not apply to any act of the Indemnity Periodfraud or intentional concealment by any such person; provided however(ii) such limitation shall not apply to any tax or environmental representation or warranty, that (a) the representations and warranties in Sections 3.01 (Corporate Existence and Power), 3.02 (Corporate Authorization), 3.05 (Capitalization), 3.06 (Ownership of Shares), 3.19 (Finders’ Fees) and 3.24 (Tax Matters) shall survive until thirty (30) calendar days after the expiration of all applicable statutes of limitations or, to the extent there is no applicable statute of limitations, indefinitely and (b) the representations and warranties in Section 3.22(l) (Employee Benefit Plans) shall survive until the third anniversary of the Closing Date. The covenants and agreements of the parties hereto contained in this Agreement or in any certificate or other writing delivered pursuant hereto or in connection herewith shall survive the Closing for the period explicitly specified therein (and if no such period is specified which shall survive until the expiration of all the applicable statutes of limitations orlimitation; and (iii) any claim, action or cause of action for any breach or violation of any such representation or warranty shall not terminate and shall survive until the respective rights and obligations of the relevant parties are fully discharged and satisfied, subject to applicable statutes of limitation.
(b) Except as qualified by the extent there is no applicable statute Disclosure Schedules, the representations, warranties, covenants and obligations of limitationsthe respective parties, indefinitely). Notwithstanding and the preceding sentencesrights and remedies that may be exercised by any of them, shall not be limited or otherwise affected by or as a result of any information furnished to, or any investigation made by, or the Knowledge of, any breach of representationthe other parties or their respective representatives.
(c) For purposes of this Agreement, warranty, covenant although each statement or agreement in respect other item of which indemnity may be sought under this Agreement shall survive the time at which it would otherwise terminate pursuant to the preceding sentences, if a Claim Certificate with respect to such representation, warranty or covenant has been delivered in accordance with this Article 6 prior to the time of such termination, until such time as every claim information set forth in the Disclosure Schedules qualifies the specific representation and warranty to which such Claim Certificate has been fully resolved pursuant information refers, all such statements and other items of information set forth in the Disclosure Schedules shall be deemed to be a representation and warranty made by PickAx and the Named PickAx Stockholder, respectively, in this Article 6Agreement.
Appears in 1 contract