Common use of Survival of Representations and Warranties and Covenants and Agreements Clause in Contracts

Survival of Representations and Warranties and Covenants and Agreements. (a) Each of the representations and warranties of the Purchaser and the Sellers contained in this Agreement shall survive until the later of (A) June 30, 2007 or (B) if the closing occurs after June 30, 2006, the first anniversary of the Closing, and shall thereafter expire, except that: (i) each Seller’s respective representations and warranties set forth in Section 3.1(b) and (c) (Authority; Enforceability) and Section 3.4 (Title to Shares) (collectively, the “Special Representations and Warranties”) shall survive the Closing indefinitely; and (ii) the Purchaser’s representations and warranties set forth in Section 4.1(b) and (c) (Authority; Enforceability) shall survive the Closing indefinitely. Each of the covenants and agreements contained in this Agreement: (i) to be performed on or prior to the Closing shall expire upon the Closing; (ii) to be performed after the Closing that specifies a time period for survival shall survive for such time period; and (iii) to be performed after the Closing that does not specify a time period for survival shall survive indefinitely. (b) Notwithstanding anything to the contrary in Section 7.1(a), if a Notice of Claim has been provided by an Indemnified Party to an Indemnifying Party concerning the breach of a representation and warranty or covenant and agreement set forth in this Agreement prior to the end of the survival period that would otherwise apply to such representation and warranty or covenant and agreement, the right to indemnification with respect to the breach of the representation and warranty or covenant and agreement set forth in such Notice of Claim shall survive until such later date as such claim has been fully and finally resolved in accordance with this Article VII.

Survival of Representations and Warranties and Covenants and Agreements. (a) Each The representations and warranties of Sellers, the Holder and the Shareholder Trust contained in this Agreement, the Transaction Documents or in any certificate or other writing delivered pursuant hereto or in connection with the transactions contemplated hereby will survive the Closing and expire at 11:59 p.m. (New York time) on the date that is the fifteen (15) month anniversary of the Closing Date (such date, the “Survival Date”), except with respect to the representations and warranties of the Purchaser and the Sellers contained in this Agreement shall survive until the later of (A) June 30, 2007 or (B) if the closing occurs after June 30, 2006, the first anniversary of the Closing, and shall thereafter expire, except that: in: (i) each Seller’s respective representations SECTION 4.1(a) (Non-Contravention; Approvals), SECTION 4.2 (Corporate Organization and warranties set forth in Section 3.1(b) Authority), SECTION 4.3 (Subsidiaries; Equity Investments; Capitalization), SECTION 4.16 (Title to Assets), SECTION 5.1 (Organization and (c) Qualification), and SECTION 5.2 (Authority; Enforceability) and Section 3.4 (Title to SharesNon-Contravention; Approvals) (collectively, the “Special Representations and WarrantiesFundamental Representations”) all of which will survive the Closing and continue in effect until the lapse of the statute of limitations period applicable to the underlying claim(and the limitations on obligations to indemnify the Purchaser Indemnified Parties contained in SECTION 11.4 shall not apply to the Fundamental Representations); (ii) SECTION 4.21 (Intellectual Property) which shall survive the Closing indefinitelyand expire at 11:59 p.m. (New York time) on the date that is the thirty (30) month anniversary of the Closing Date; and (iii) SECTION 4.7 (Tax Matters) (the “Tax Representations”) which will survive the Closing and expire at 11:59 p.m. (iiNew York time) on the Purchaser’s date that is the six (6) month anniversary of the date of the lapse of the statute of limitations period applicable to the underlying claim. (b) All representations and warranties set forth of Purchaser in Section 4.1(b) and this Agreement, the Transaction Documents or in any certificate or other writing delivered pursuant hereto or in connection with the transactions contemplated hereby shall expire at the Effective Time. (c) Following the expiration of any representation or warranty, any claim for indemnification based upon such representation or warranty shall be barred and be of no force and effect, provided, that any representation or warranty, that would otherwise terminate in accordance with clause (Authority; Enforceabilitya)(i), (a)(ii) or (a)(iii) above will continue to survive if a written bona-fide notice of claim for indemnity shall survive have been timely asserted in accordance with SECTION 11.5 hereof on or prior to such expiration date thereof, until the Closing indefinitely. Each of the related claim for indemnification has been satisfied or otherwise resolved as provided in this ARTICLE XI. (d) All covenants and agreements contained in this Agreement: (i) to be performed on Agreement or prior to in any certificate or other writing delivered pursuant hereto or in connection with the transactions contemplated hereby shall survive the Closing and shall expire upon the Closing; (ii) continue to be performed remain in full force and effect in perpetuity after the Closing that specifies a time period for survival shall survive for such time period; and (iii) to be performed after the Closing that does not specify a time period for survival shall survive indefinitely. (b) Notwithstanding anything to the contrary in Section 7.1(a)Date, if a Notice of Claim has been provided by an Indemnified Party to an Indemnifying Party concerning the breach of a representation and warranty or covenant and agreement set forth in this Agreement prior to the end of the survival period that would otherwise apply to such representation and warranty or covenant and agreement, the right to indemnification with respect to the breach of the representation and warranty or covenant and agreement set forth in such Notice of Claim shall survive until such later date as such claim has been fully and finally resolved unless they terminate earlier in accordance with this Article VIItheir express terms.

Survival of Representations and Warranties and Covenants and Agreements. (a) Each Any claim for indemnification based on a breach of the representations representations, warranties, covenants and warranties of the Purchaser and the Sellers contained agreements set forth in this Agreement shall survive until the later of Closing as follows: (Aa) June 30, 2007 or (B) if the closing occurs after June 30, 2006, the first anniversary any claim for indemnification based on a breach of the Closing, and shall thereafter expire, except that: (i) each Seller’s respective representations and warranties set forth in Section 3.1(b) this Agreements shall, except as set forth in clauses (b), (c), and (cd) below, survive the Closing for a period of one year from the Closing Date; (b) any claim for indemnification based on a breach of the representations and warranties contained in Sections 4.1 (Due Organization and Qualification; Power and Authority), 4.2 (Authorization; Enforceability) Binding Agreement), 4.5 (Capitalization), 5.1 (Due Organization; Power and Section 3.4 Authority), and 5.2 (Title to SharesAuthorization; Binding Agreement) (collectively, the “Special Representations and WarrantiesFundamental Representations”) shall survive until the Closing indefinitelyexpiration of the statute of limitations period applicable for breach of contract claims in the State of Delaware; and (iic) any claim for indemnification based on a breach of the Purchaser’s representations and warranties set forth contained in Section 4.1(b) and 4.18 (cTaxes) (Authority; Enforceabilitythe “Tax Representations”) shall survive until the expiration of any applicable statute of limitations period plus 30 days; (d) any claim for indemnification based on a breach of the representations and warranties contained in Sections 4.15 (Employee Benefit Plans) shall survive for a period of three years from the Closing indefinitely. Each Date; (e) any claim for indemnification based on a breach of the covenants and agreements that are to be performed prior to Closing shall not survive the Closing; and (f) any claim for indemnification based on a breach of the covenants and agreements that are to be performed all or in part after Closing shall survive until either the date provided herein or, if no date is provided, the expiration of the applicable statute of limitations period (in each case, the “Survival Period”). It is the express intent of the Parties that, if an applicable Survival Period is shorter than the statute of limitations that would otherwise apply, then, by contract, the applicable statute of limitations shall be reduced to the Survival Period contemplated hereby. Any claim for indemnity under this Agreement with respect to any breach of any representation, warranty, covenant, or agreement contained in this Agreement: (i) Agreement shall be deemed time-barred, and no such claim shall be made after the Survival Period specified in this Section 10.6; provided, however, that if a claim notice is delivered in good faith pursuant to be performed on and in accordance with the requirements of ARTICLE X with respect to any breach of any representation, warranty, covenant, or agreement prior to the Closing shall expire upon expiration of the Closing; (ii) to be performed after the Closing that specifies a time period for survival shall survive for such time period; and (iii) to be performed after the Closing that does not specify a time period for survival shall survive indefinitely. (b) Notwithstanding anything to the contrary in Section 7.1(a), if a Notice of Claim has been provided by an Indemnified Party to an Indemnifying Party concerning the breach of a representation and warranty or covenant and agreement applicable Survival Period as set forth in this Agreement prior to the end of the survival period that would otherwise apply to such representation and warranty or covenant and agreementSection 10.6, the right to indemnification claim under this ARTICLE X with respect to the breach of the representation and warranty such representation, warranty, covenant, or covenant and agreement set forth in such Notice of Claim shall survive until such later date as such indemnification claim has been fully and is finally resolved in accordance with this Article VII.pursuant to ARTICLE X.

Survival of Representations and Warranties and Covenants and Agreements. (a) Each of the representations and warranties of Parent and Merger Sub, on the Purchaser one hand, and the Sellers Company and the FT Stockholders, on the other hand, contained in this Agreement or in any Transaction Closing Certificate shall survive until the later expiration of (A) June 30, 2007 or (B) if eighteenth months following the closing occurs after June 30, 2006, the first anniversary of the ClosingClosing Date, and shall thereafter thereupon expire, except that: that (i) each Seller’s respective the Fundamental Parent Representations and the Fundamental Company Representations shall survive for a period of six (6) years from the Closing Date and (ii) the representations and warranties set forth in Section 3.1(b) and 4.7 (c) (Authority; Enforceability) and Section 3.4 (Title to Shares) (collectively, the “Special Representations and Warranties”Taxes) shall survive until the Closing indefinitely; and applicable statute of limitations has run plus six (ii6) the Purchaser’s representations and warranties set forth in Section 4.1(b) and (c) (Authority; Enforceability) shall survive the Closing indefinitelymonths. Each (x) of the covenants and agreements contained set forth in this Agreement: (i) Agreement to be performed on or prior to the Closing shall expire upon the Closing; (ii) to be performed after survive the Closing until the second anniversary of the date of the Closing Date and shall thereupon expire and (y) of the other covenants and agreements set forth in this Agreement shall survive the Closing without limitation as to time; provided, that if a covenant or agreement referred to in this clause (y) specifies a time period for survival term, in such case the performance obligations under such covenant or agreement shall survive for such time period; specified term and (iii) shall thereupon expire, but the right of the Parent Indemnified Parties and the Company Indemnified Parties, as applicable, to be performed after make a claim for a breach of any such covenant or agreement, which such breach occurred prior to the Closing that does not specify a time period for survival expiration of the performance obligations pursuant to the terms of such covenant or agreement, shall survive indefinitelyuntil six (6) months following the specified term of such covenant or agreement, and shall thereupon expire. The parties agree that the time periods set forth in this Section 8.1(a), to the extent shorter than an applicable statute of limitations, is intended by the parties to function as a private statute of limitations. (b) Subject to Section 8.1(a) and Section 8.3(h), from and after the Closing Date, the Company Stockholders, jointly and severally, shall indemnify the Parent Indemnified Parties and hold them harmless from and against any and all Losses suffered, sustained or incurred by such Parent Indemnified Party arising out of or resulting from: (i) Subject to Section 8.2, the breach of any representation or warranty of the Company or the FT Stockholders set forth in Article IV or any Transaction Closing Certificate; (ii) Indemnified Taxes, Transfer Taxes or failure to file any Tax Returns as set forth in Section 5.13; (iii) the breach of any covenant or agreement of the Company or the FT Stockholders contained in this Agreement or any Transaction Closing Certificate; (iv) any claim by a shareholder or former optionholder of the Company that the proceeds payable to such shareholder or optionholder in connection with the Transactions are inadequate; or (v) any actual Company Transaction Expenses that were not taken into account for purposes of calculating the Company Transaction Expenses or the Final Closing Working Capital Ratio. (c) Subject to Section 8.1(a), from and after the Closing, Parent shall indemnify the Company Indemnified Parties and hold them harmless from and against any and all Losses suffered, sustained or incurred by such Company Indemnified Party arising out of or resulting from: (i) the breach of any representation or warranty of Parent or Merger Sub set forth in Article III or any Transaction Closing Certificate delivered at the Closing; or (ii) the breach of any covenant or agreement of Parent or Merger Sub contained in this Agreement or any Transaction Closing Certificate. (d) For purposes of determining whether there has been, and the Losses for, a breach of any representation or warranty set forth in this Agreement or any Transaction Closing Certificate, (A) each representation and warranty made in this Agreement is made without any qualification or limitations as to materiality or Material Adverse Effect and (B) without limiting the foregoing, the word "material", "Material Adverse Effect" and words of similar import shall be deemed deleted from any such representation or warranty. (e) The rights of the Parent Indemnified Parties and the Company Indemnified Parties to indemnification pursuant to the provisions of this Article VIII are subject to the following limitations: (i) Notwithstanding anything in this Article VIII (other than Section 8.3(h)), in no event shall (A) the Company Stockholders be required to provide indemnification to any of the Parent Indemnified Parties with respect to any claim for indemnification made pursuant to Section 8.1(b)(i) unless and until the Losses associated with all claims for indemnification made pursuant to Section 8.1(b)(i) incurred by the Parent Indemnified Parties aggregate at least Six Hundred Thousand Dollars ($600,000) (the “Basket”), after which point the Company Stockholders shall only be required to provide indemnification with respect to indemnifiable Losses with respect to any such claim for indemnification made pursuant to Section 8.1(b)(i) in excess of the Basket; provided, however, that, notwithstanding anything to the contrary contained herein, the Basket shall not apply to any indemnification claims made with respect to the Fundamental Company Representations, the representations and warranties set forth in Section 4.7 (Taxes), indemnification claims made pursuant to Sections 8.1(b)(ii) through 8.1(b)(v) or any claim based on Fraud or criminal activity; (B) the Company Stockholders be required to provide indemnification to the Parent Indemnified Parties for indemnifiable Losses arising from claims for indemnification made pursuant to Section 8.1(b)(i) in an aggregate amount in excess of Eight Million Dollars ($8,000,000) (the “Indemnification Cap”), except with respect to claims made with respect to the Fundamental Company Representations or any claim based on Section 4.7 (Taxes), Fraud or criminal activity; (C) the Company Stockholders be required to provide indemnification to the Parent Indemnified Parties for indemnifiable Losses arising from claims for indemnification made pursuant to Section 4.7 (Taxes) in an aggregate amount in excess of Ten Million Dollars ($10,000,000); or (D) the Company Stockholders be required to provide indemnification to the Parent Indemnified Parties for indemnifiable Losses arising from claims for indemnification made pursuant to Section 8.1(b) in excess of the aggregate Merger Consideration received by all Company Stockholders. (ii) Notwithstanding anything to the contrary in Section 7.1(a)this Article VIII, if a Notice of Claim has been provided by an Indemnified Party in no event shall (A) Parent be required to an Indemnifying Party concerning the breach of a representation and warranty or covenant and agreement set forth in this Agreement prior provide indemnification to the end any of the survival period that would otherwise apply Company Indemnified Parties with respect to such representation any claim for indemnification made pursuant to Section 8.1(c)(i) unless and warranty or covenant and agreementuntil the Losses associated with all claims for indemnification made pursuant to Section 8.1(c)(i) incurred by the Company Indemnified Parties aggregate at least the Basket, the right after which point Parent shall only be required to provide indemnification with respect to the breach indemnifiable Losses with respect to any such claim for indemnification made pursuant to Section 8.1(c)(i) in excess of the representation Basket; provided, however, that notwithstanding anything to the contrary contained herein, the Basket shall not apply to any indemnification claims made with respect to the Fundamental Parent Representations, indemnification claims made pursuant to Section 8.1(c)(ii) or any claim based on Fraud or criminal activity; (ii) in no event shall Parent be required to provide indemnification to the Company Indemnified Parties for indemnifiable Losses arising from claims for indemnification made pursuant to Section 8.1(c)(i) in an aggregate amount in excess of the Indemnification Cap except with respect to claims based on Fraud or criminal activity; and warranty or covenant and agreement set forth (iii) in such Notice no event shall Parent be required to provide indemnification to the Company Indemnified Parties for indemnifiable Losses with respect to Section 8.1(c) in an aggregate amount in excess of Claim shall survive until such later date as such claim has been fully and finally resolved in accordance with this Article VIIthe Merger Consideration.

Survival of Representations and Warranties and Covenants and Agreements. (a) Each of the representations The representations, warranties, covenants and warranties of the Purchaser and the Sellers contained agreements set forth in this Agreement shall survive until the later of (A) June 30, 2007 or (B) if the closing occurs after June 30, 2006, the first anniversary of the Closing, and shall thereafter expire, except thatClosing as follows: (ia) each Seller’s respective the representations and warranties set forth in Section 3.1(bthis Agreements shall, except as set forth in clauses (b) and (c) below, survive the Closing for a period of 18 months from the Closing Date; (b) the representations and warranties contained in Sections 4.1 (Authority; Enforceability) Binding Agreement), 4.4 (Ownership), 5.1 (Due Organization and Section 3.4 Qualification), 5.2 (Title to SharesAuthority; Binding Agreement), 5.5 (Capitalization), 6.1 (Due Organization and Authority), and 6.2 (Authority; Binding Agreement) (collectively, the “Special Representations and WarrantiesFundamental Representations”) shall survive until the Closing indefinitelyfifth anniversary of the Closing; and (ii) the Purchaser’s representations and warranties set forth in Section 4.1(b) and (c) the representations and warranties contained in Section 5.18 (Authority; EnforceabilityTaxes) (the “Tax Representations”) shall survive until the Closing indefinitely. Each expiration of all applicable statutes of limitations, including any extensions thereof, plus 60 days (whether permissive or otherwise); (d) the covenants and agreements contained in this Agreement: (i) that are to be performed on or prior to the Closing shall expire upon not survive the Closing; and (iie) the covenants and agreements that are to be performed all or in part after the Closing that specifies a time period for survival shall survive for such time period; and (iii) to be performed after until either the Closing that does not specify a time period for survival shall survive indefinitely. (b) Notwithstanding anything to the contrary in Section 7.1(a)date provided herein or, if a Notice no date is provided, the expiration of Claim the applicable statutes of limitations (in each case, the “Survival Period”). Each representation and warranty made in this Agreement shall expire on the last day, if any, that claims for breaches of such representation or warranty may be made, except that any such representation or warranty that has been provided by an Indemnified Party to an Indemnifying Party concerning made the subject of a claim or the breach of which is the subject to a representation and warranty or covenant and agreement set forth in this Agreement prior to the end of the survival period that would otherwise apply to written notice before such representation and warranty or covenant and agreement, the right to indemnification expiration date shall survive with respect to the breach of the representation and warranty or covenant and agreement set forth in such Notice of Claim shall survive until such later date as such claim has been fully and finally resolved in accordance with this Article VIIor notice of beach until the final resolution of such claim or breach.