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

Survival of Representations and Warranties and Covenants. All representations, warranties, agreements and covenants made by Target herein, or in any certificate, schedule or exhibit delivered pursuant hereto, shall survive the execution and delivery of this Agreement and the Closing and shall survive until the date that is twelve (12) months following Closing; provided, however, that any claims for indemnification involving (i) the Specified Matters or breach of the representations and warranties contained in Section 3.9 (Intellectual Property) (the “IP Representations”), shall survive until the date that is twenty-four (24) months following Closing, (ii) any breach of any of the representations and warranties contained in Section 3.2 (Authority), Section 3.5 (Capital Structure), and Section 3.21 (Taxes) (collectively, the “Specified Representations”) and the matters set forth in Sections 9.2(a)(iv), (v) and (viii) shall survive until the date that is thirty-six (36) months following the Closing, and (iii) Fraud shall survive until the date that is sixty (60) months following the Closing and, in each case of (i), (ii) and (iii), shall also survive thereafter until resolved if a claim in respect thereof has been made prior to the applicable survival date with respect to such matters. If a claim has been asserted by Acquiror prior to the termination of the applicable survival date, the representation or warranty relating to such claim shall survive solely with respect to such claim until such claim is finally determined in accordance with this Agreement. The parties acknowledge that the time periods set forth in this Section 9 and elsewhere in this Agreement for the assertion of claims and notices under this Agreement are the result of arms’-length negotiation among the parties and that they intend for the time periods to be enforced as agreed hereunder by the parties. The parties further acknowledge that the time periods set forth in this Section 9 and elsewhere in the Agreement may be shorter than otherwise provided by law.

Survival of Representations and Warranties and Covenants. All representations, warranties, agreements (a) The representations and covenants made by Target herein, or in any certificate, schedule or exhibit delivered pursuant hereto, shall survive the execution and delivery of this Agreement and the Closing and shall survive until the date that is twelve warranties set forth herein (12) months following Closing; provided, however, that any claims for indemnification involving (i) the Specified Matters or breach of other than the representations and warranties contained in Section 3.9 (Intellectual Property) (4.13, except Section 4.13(q)), and the “IP Representations”)right to commence any claim with respect thereto, shall survive until the date that is fifteen month anniversary of the Closing Date and shall expire thereafter, and the Parent and its Affiliates right to make any claim for indemnification for any Special Obligation in 42 accordance with the terms hereof, shall survive until the twenty-four (24) months following Closing, (ii) any breach seven month anniversary of the Closing Date and shall expire thereafter; provided that in the event written notice of any claim for indemnification under Section 9.2 or Section 8.1 shall have been given in accordance with Section 9.3(b) or Section 8.3 hereof or written notice of the commencement of a Tax audit shall have been given in accordance with Section 8.5(f) hereof within the applicable survival period, the right to be indemnified with respect to such matter shall survive until such time as such matter is fully and finally resolved. Any investigation or other examination that may have been made or may be made at any time by or on behalf of the party to whom representations and warranties are made shall not limit, diminish or in any way affect or be deemed to modify the representations and warranties contained in Section 3.2 (Authority), Section 3.5 (Capital Structure)this Agreement, and Section 3.21 (Taxes) (collectivelythe parties may rely on the representations, the “Specified Representations”) warranties and the matters set forth covenants in Sections 9.2(a)(iv), (v) and (viii) shall survive until the date that is thirty-six (36) months following the Closingthis Agreement, and (iii) Fraud shall survive until the date that is sixty (60) months following the Closing andany schedule, exhibit or certificate in respect thereof, irrespective of any information obtained by them by any investigation, examination or otherwise, in each case of (i)all cases subject to any and all limitations to which such representations, (ii) warranties and (iii), shall also survive thereafter until resolved if a claim in respect thereof has been made prior covenants are subject pursuant to the applicable survival date with respect to such matters. If a claim has been asserted by Acquiror prior to the termination of the applicable survival date, the representation or warranty relating to such claim shall survive solely with respect to such claim until such claim is finally determined in accordance with this Agreement. The parties acknowledge that , including the time periods set forth in this Section 9 and elsewhere in this Agreement for the assertion of claims and notices under this Agreement are the result of arms’-length negotiation among the parties and that they intend for the time periods to be enforced as agreed hereunder by the parties. The parties further acknowledge that the time periods set forth in this Section 9 and elsewhere in the Agreement may be shorter than otherwise provided by lawDisclosure Letter.

Survival of Representations and Warranties and Covenants. All representations, warranties, agreements The representations and covenants made by Target herein, or warranties of the Parties contained in any certificate, schedule or exhibit delivered pursuant hereto, this Agreement shall survive the execution Closing until the date that is 18 months after the Closing Date, except that (i) the representations and delivery warranties contained in Sections ‎5.1(a), 5.2, 5.3(a), 5.5, and 5.23 (the “Seller Fundamental Representations”) and (ii) the representations and warranties contained in Sections 6.1, 6.2 and 6.6 (the “Purchaser Fundamental Representations”) shall survive until 30 days after the expiration of the applicable statute of limitations and the representations and warranties contained in Section 5.9 shall survive until 30 days after the expiration of the statute of limitations applicable to the respective Tax assessment under applicable Law. All of the covenants and agreements contained in this Agreement and that contemplate actions (or inaction) to be taken (or not taken) after the Closing shall survive the consummation of the transactions contemplated hereby and shall continue in full force and effect after the Closing in accordance with their terms. The covenants and agreements contained in this Agreement that contemplate actions (or inaction) to be taken (or not taken) prior to the Closing shall not survive the Closing; provided, however, that the indemnification obligations under Section 9.2(a)(iii) shall survive until the date that is 18 months after the Closing Date. The indemnification obligations under Section 9.2(a)(v), Section 9.2(a)(vi), Section 9.2(a)(vii) and Section 9.3(a)(iii) shall survive until 30 days after the expiration of the statute of limitations applicable to the respective Tax assessment under applicable Law. The indemnification obligations under Section 9.2(a)(iv) shall survive until 30 days after the expiration of the statute of limitations applicable to the underlying claim. The indemnification obligations under Section 9.2(a)(viii) shall survive until (i) if a plan of reorganization is confirmed in the Bestwall Case, the effective date of such plan of reorganization, provided that, on such date, an Assumption Order shall have been entered in the Bestwall Bankruptcy Case and shall have become a Final Order, (ii) if the Bestwall Case is dismissed, the date on which the dismissal order is entered, (iii) if the Bestwall Case is converted to a chapter 7 liquidation proceeding, the date on which the trustee in such chapter 7 liquidation proceeding completes the distributions of the property of the estate of Bestwall (each of the dates set forth in clause (i), (ii) or (iii), a “Bankruptcy Conclusion Date”); provided, however, that if the Ground Lease is rejected by the applicable Bankruptcy Conclusion Date, the obligations under Section 9.2(a)(viii) shall survive until the date that is twelve (12) months following Closing; provided, however, that any claims for such applicable Bankruptcy Conclusion Date. The indemnification involving (i) the Specified Matters or breach of the representations and warranties contained in obligations under Section 3.9 (Intellectual Property) (the “IP Representations”), shall survive until the date that is twenty-four (24) months following Closing, (ii) any breach of any of the representations and warranties contained in Section 3.2 (Authority), Section 3.5 (Capital Structure), and Section 3.21 (Taxes) (collectively, the “Specified Representations”) and the matters set forth in Sections 9.2(a)(iv), (v) and (viii9.3(a)(iv) shall survive until the earlier of the date that is thirty-six any and all obligations of Seller Parent or its Affiliates under (36A) months following the ClosingGround Lease or (B) the guarantee referred to in Schedule 7.21 have terminated. Notwithstanding Section 9.1, and (iiiin the event a Claim Notice for indemnification under Section 9.2(a) Fraud or Section 9.3(a) shall have been given in accordance with Section 9.4 within the applicable survival period, the indemnification claim shall survive until the date that is sixty (60) months following the Closing and, in each case of (i), (ii) and (iii), shall also survive thereafter until resolved if a claim in respect thereof has been made prior to the applicable survival date with respect to such matters. If a claim has been asserted by Acquiror prior to the termination of the applicable survival date, the representation or warranty relating to such claim shall survive solely with respect to such claim until time as such claim is fully and finally determined in accordance with this Agreement. The parties acknowledge that the time periods set forth in this Section 9 and elsewhere in this Agreement for the assertion of claims and notices under this Agreement are the result of arms’-length negotiation among the parties and that they intend for the time periods to be enforced as agreed hereunder by the parties. The parties further acknowledge that the time periods set forth in this Section 9 and elsewhere in the Agreement may be shorter than otherwise provided by lawresolved.

Survival of Representations and Warranties and Covenants. All representations(a) The representations and warranties set forth herein (other than the representations and warranties in Section 3.13), warranties, agreements and covenants made by Target herein, or in the right to commence any certificate, schedule or exhibit delivered pursuant heretoclaim with respect thereto, shall survive for 12 months from the execution Closing Date and delivery of this Agreement shall expire thereafter, and the representations and warranties set forth in Section 3.13, and the right to commence any claim with respect thereto, shall survive for 27 months from the Closing Date and shall survive until expire thereafter (such additional 15-month period, the date “Extended Survival Period”), it being understood and agreed that is twelve (12) months following Closing; provided, however, that the Parent and its Affiliates’ right to make any claims claim for indemnification involving under Article VII (i) the Specified Matters or breach including, without limitation, in respect of the representations and warranties contained in Section 3.9 (Intellectual Property) (the “IP Representations”Sections 3.13(j), (k), and (l)) and Section 8.2(a)(iii) shall survive for 27 months from the Closing Date; provided that in the event written notice of any claim for indemnification under Section 8.2 or Section 7.1 shall have been given in accordance with Section 8.3(b) or Section 7.3 hereof or written notice of the commencement of a Tax audit shall have been given in accordance with Section 7.5(f) hereof within the applicable survival period, the right to be indemnified with respect to such matter shall survive until such time as such matter is fully and finally resolved. Any investigation or other examination that may have been made or may be made at any time by or on behalf of the date that is twenty-four (24) months following Closingparty to whom representations and warranties are made shall not limit, (ii) diminish or in any breach of any of way affect or be deemed to modify the representations and warranties contained in Section 3.2 (Authority), Section 3.5 (Capital Structure)this Agreement, and Section 3.21 (Taxes) (collectivelythe parties may rely on the representations, the “Specified Representations”) warranties and the matters set forth covenants in Sections 9.2(a)(iv), (v) and (viii) shall survive until the date that is thirty-six (36) months following the Closingthis Agreement, and (iii) Fraud shall survive until the date that is sixty (60) months following the Closing andany schedule, exhibit or certificate in respect thereof, irrespective of any information obtained by them by any investigation, examination or otherwise, in each case of (i)all cases subject to any and all limitations to which such representations, (ii) warranties and (iii), shall also survive thereafter until resolved if a claim in respect thereof has been made prior covenants are subject pursuant to the applicable survival date with respect to such matters. If a claim has been asserted by Acquiror prior to the termination of the applicable survival date, the representation or warranty relating to such claim shall survive solely with respect to such claim until such claim is finally determined in accordance with this Agreement. The parties acknowledge that , including the time periods set forth in this Section 9 and elsewhere in this Agreement for the assertion of claims and notices under this Agreement are the result of arms’-length negotiation among the parties and that they intend for the time periods to be enforced as agreed hereunder by the parties. The parties further acknowledge that the time periods set forth in this Section 9 and elsewhere in the Agreement may be shorter than otherwise provided by lawCompany Disclosure Schedule.

Survival of Representations and Warranties and Covenants. All representations, warranties, agreements The representations and covenants made by Target herein, or in any certificate, schedule or exhibit delivered pursuant hereto, warranties of each Party to this Agreement shall survive the execution and delivery of this Agreement and (without limitation) (i) the Closing and the sale of the Purchased Assets to DIVERSA; (ii) any sale or other disposition of any of the Purchased Assets by DIVERSA; and (iii) the dissolution of any Party to this Agreement. Except for the representations set forth in [*] which shall survive until for [*], the date that is twelve (12) months following Closingrepresentations and warranties of each Party to this Agreement shall survive [*]; provided, however, that if, with respect to any claims for indemnification involving (i) the Specified Matters or breach of the said representations and warranties contained that survive [*], at any time prior to the end of such [*], any indemnified Party under Section 7 delivers to the indemnifying Party under Section 7 a written notice alleging in Section 3.9 (Intellectual Property) (good faith the “IP Representations”), shall survive until the date that is twenty-four (24) months following Closing, (ii) any existence of a breach of any of the said representations and warranties made by the indemnifying Party (and setting forth in reasonable detail the basis for such indemnified Party’s belief that such a breach may exist) and asserting in good faith a claim for recovery under Section 7 based on such alleged breach, then said representation or warranty underlying the claim asserted in such notice shall survive the end of such [*] period until such time as such claim is fully and finally resolved. All of the covenants, agreements and obligations of the Parties contained in Section 3.2 (Authority), Section 3.5 (Capital Structure), and Section 3.21 (Taxes) (collectively, the “Specified Representations”) and the matters set forth in Sections 9.2(a)(iv), (v) and (viii) this Agreement shall survive until the date that is thirty-six (36) months following the Closing, and (iii) Fraud shall survive until the date that is sixty (60) months following the Closing and, in each case of (i)) until fully performed or fulfilled, unless non-compliance with such covenants, agreements or obligations is waived in writing by the Party entitled to such performance or (ii) and (iii)if not fully performed or fulfilled, shall also survive thereafter until resolved if a claim in respect thereof has been made prior to the applicable survival date with respect to such matters. If a claim has been asserted by Acquiror prior to the termination expiration of the applicable survival date, the representation or warranty relating to such claim shall survive solely with respect to such claim until such claim is finally determined in accordance with this Agreement. The parties acknowledge that the time periods set forth in this Section 9 and elsewhere in this Agreement for the assertion relevant statute of claims and notices under this Agreement are the result of arms’-length negotiation among the parties and that they intend for the time periods to be enforced as agreed hereunder by the parties. The parties further acknowledge that the time periods set forth in this Section 9 and elsewhere in the Agreement may be shorter than otherwise provided by lawlimitations.

Survival of Representations and Warranties and Covenants. All representations, warranties, agreements (a) The representations and covenants made by Target herein, or warranties contained in any certificate, schedule or exhibit delivered pursuant hereto, this Agreement shall survive the execution and delivery of this Agreement and the closing and the consummation of the transactions contemplated hereby (and any examination or investigation by or on behalf of any party hereto) for a period of 12 months from the Closing and shall survive until Date (the date that is twelve (12) months following Closing; provided"Cut-Off Date"). Notwithstanding the foregoing, however, that any claims for indemnification involving (i) any obligation in respect of a claim for indemnity as a result of a breach of any representation or warranty of any party that is asserted in writing with reasonable specificity as to the Specified Matters nature and, if then reasonably determinable, amount of the claim prior to the Cut-Off Date or the applicable Tax Claims Date, in each case as applicable, shall survive past such date until finally resolved or settled, (ii) any obligation in respect of a claim by a party for indemnity arising from or related to a breach of the representations and warranties contained set forth in Section 3.9 2.14 (Intellectual PropertyTaxes) (the “IP Representations”), shall survive until 30 days following the date that is twenty-four expiration of the applicable statute of limitations (24) months following Closingthe "Tax Claims" and such date, the "Tax Claims Date"); and (iiiii) any obligation in respect of a claim by a party for indemnity arising from or related to a breach of any of the representations and warranties contained set forth in Section 3.2 Sections 2.1 (Organization), 2.2 (Authority), Section 2.15 (Brokers), 2.16 (Purchased Assets), 2.29 (Investment Representations), 3.1 (Organization), 3.2 (Authorization), 3.5 (Capital StructureIssuance of Securities), and Section 3.21 3.10 (TaxesBrokers) or 3.13 (Buyer Acknowledgement), a breach of a covenant set forth in ARTICLE IV, a claim arising from or related to fraud or willful misrepresentation on the part of the other party, or a claim by Buyer with respect to the Excluded Assets or Excluded Liabilities, or by Seller with respect to the Assumed Liabilities, shall survive indefinitely (collectively, the “Specified Representations”) and the matters set forth in Sections 9.2(a)(iv"Indefinite Claims"), (v) and (viii) shall survive until the date that is thirty-six (36) months following the Closing, and (iii) Fraud shall survive until the date that is sixty (60) months following the Closing and, in each case of (i), (ii) and (iii), shall also survive thereafter until resolved if a claim in respect thereof has been made prior to the applicable survival date with respect to such matters. If a claim has been asserted by Acquiror prior to the termination of the applicable survival date, the representation or warranty relating to such claim shall survive solely with respect to such claim until such claim is finally determined in accordance with this Agreement. The parties acknowledge that the time periods set forth in this Section 9 and elsewhere in this Agreement for the assertion of claims and notices under this Agreement are the result of arms’-length negotiation among the parties and that they intend for the time periods to be enforced as agreed hereunder by the parties. The parties further acknowledge that the time periods set forth in this Section 9 and elsewhere in the Agreement may be shorter than otherwise provided by law.

Survival of Representations and Warranties and Covenants. All representations, warranties, agreements (a) The representations and covenants made by Target herein, warranties of Seller contained in this Agreement or in any certificate, schedule or exhibit the certificate delivered pursuant hereto, to Section 8.1(d) (the “Seller Representations”) shall survive the execution and delivery of this Agreement and the Closing and shall survive continue in full force and effect until the date that is twelve (12) months following ClosingSurvival Date; provided, however, that any claims for indemnification involving (i) the Specified Matters or breach of the representations and warranties contained in made pursuant to Section 3.9 5.1 (Intellectual Property) (the “IP Representations”), shall survive until the date that is twenty-four (24) months following Closing, (ii) any breach of any of the representations Organization and warranties contained in Section 3.2 (AuthorityGood Standing), Section 3.5 5.2 (Capital StructureAuthorization of Agreement), Section 5.4 (Purchased Subsidiaries; Capitalization), Section 5.5 (Ownership and Transfer of Purchased Assets), Section 3.21 5.19 (TaxesFinancial Advisors) (collectively, the “Specified Seller Fundamental Representations”) and the matters set forth representations and warranties made pursuant to Section 5.9 (Taxes) and Section 5.14 (Employee Benefits Plans) shall in Sections 9.2(a)(iveach case survive until sixty (60) days following the expiration of the applicable statutory period of limitation (including all periods of extension, whether automatic or permissive), (vii) the representations and warranties made pursuant to Section 5.12(c) (Intellectual Property) and Section 5.18 (viiiEnvironmental Matters) shall survive until the date that is thirty-six third (363rd) months following anniversary of the Closing, Closing Date and (iii) Fraud the representations and warranties made pursuant to Section 5.12 (Intellectual Property) other than Section 5.12(c) shall survive until the date that is sixty second (602nd) months following anniversary of the Closing and, in each case Date. Written notice of (i), (ii) and (iii), shall also survive thereafter until resolved if a claim for indemnification must be given by Purchaser to Seller in respect thereof has been made accordance with the provisions hereof prior to the applicable survival date with respect to such matters. If a claim has been asserted by Acquiror prior to the termination expiration of the applicable survival daterepresentations and warranties, the representation or warranty relating to in which case such claim shall survive solely with respect to such until finally resolved or judicially determined. Any claim until such claim is finally determined in accordance with this Agreement. The parties acknowledge that the time periods set forth in this Section 9 and elsewhere in this Agreement for the assertion of claims and notices under this Agreement are the indemnification as a result of arms’-length negotiation among a breach of a representation and warranty by Seller for which notice is not delivered to Seller on or prior to the parties expiration of the applicable representation and that they intend for the time periods to warranty will be enforced as agreed hereunder by the parties. The parties further acknowledge that the time periods set forth in this Section 9 irrevocably and elsewhere in the Agreement may be shorter than otherwise provided by lawunconditionally released and waived.

Survival of Representations and Warranties and Covenants. All representationsThe representations and warranties of Buyer, warranties, agreements Seller and covenants made by Target herein, the Company contained in this Agreement or in any certificate, schedule or exhibit certificate to be delivered pursuant hereto, to this Agreement shall survive the execution Closing and delivery remain in full force and effect for a period of fifteen (15) months after the Closing Date and then shall thereafter terminate and be of no further force or effect; provided, that any claim relating to Fundamental Representations (other than representations set forth in Section 3.2 (Capitalization) or Section 3.4 (Subsidiaries)) or Indemnified Taxes may be made at any time prior to the expiration of the applicable statute of limitations (including any valid extension of such statute of limitations); provided, further, that the representations set forth in Section 3.2 (Capitalization) and Section 3.4 (Subsidiaries) shall survive indefinitely. All covenants and other agreements of the parties contained in this Agreement and shall survive the Closing and shall survive continue in full force until the date that is twelve (12) months following Closing; providedtime period contemplated by its terms. Notwithstanding the foregoing, howeverif, that at any claims for indemnification involving (i) the Specified Matters or breach of the representations and warranties contained in Section 3.9 (Intellectual Property) (the “IP Representations”), shall survive until the date that is twenty-four (24) months following Closing, (ii) any breach of any of the representations and warranties contained in Section 3.2 (Authority), Section 3.5 (Capital Structure), and Section 3.21 (Taxes) (collectively, the “Specified Representations”) and the matters set forth in Sections 9.2(a)(iv), (v) and (viii) shall survive until the date that is thirty-six (36) months following the Closing, and (iii) Fraud shall survive until the date that is sixty (60) months following the Closing and, in each case of (i), (ii) and (iii), shall also survive thereafter until resolved if a claim in respect thereof has been made time prior to the applicable survival date with respect to such matters. If a claim has been asserted by Acquiror prior to the termination end of the applicable survival dateperiod, any Buyer Indemnified Person or Seller Indemnified Person delivers to Seller or Buyer, as applicable, a Claim Notice as provided in Section 6.4(a) alleging a breach of any representation, warranty or covenant and asserting a claim for recovery under Section 6.2 based on such breach, then the representation representation, warranty or warranty relating to covenant underlying the claim asserted in such claim Claim Notice shall survive solely with respect to until such claim until time as such claim is fully and finally determined in accordance with resolved. It is the express intent of the parties that if an applicable survival period as contemplated by this AgreementSection 6.1 is shorter (or longer) than the statute of limitations that would otherwise apply, then, by contract, the applicable statute of limitations shall be reduced to (or increased to) the survival period contemplated hereby. The parties further acknowledge and agree that the time periods set forth in this Section 9 and elsewhere in this Agreement 6.1 for the assertion of claims and notices under this Agreement are the result of arms’-length negotiation among the parties and that they intend for the time periods to be enforced as agreed hereunder by the parties. The parties further acknowledge that the time periods set forth in this Section 9 and elsewhere in the Agreement may be shorter than otherwise provided by law.

Survival of Representations and Warranties and Covenants. All representations(a) If the Merger is consummated, warranties, agreements the representations and covenants made by Target herein, or warranties of the Company contained in any certificate, schedule or exhibit delivered pursuant hereto, this Agreement shall survive the execution Closing and delivery remain in full force and effect for a period of this Agreement [*] after the Closing Date and then shall terminate other than the Specified Representations, which shall survive the Closing and remain in full force and effect until ninety (90) days following the expiration of the applicable statute of limitations (such applicable date, the “Survival Date”). If the Merger is consummated, all covenants of the Parties (including the covenants set forth in Articles IV and V) shall expire and be of no further force or effect as of the close of business on the date that is [*] months after the Closing Date, except to the extent such covenants provide that they are to be performed after the Closing, in which case such covenants shall survive until the date that or end of the period specified therein (and, if no date or period is twelve (12[*] Confidential treatment requested. 90 CONFIDENTIAL TREATMENT REQUESTED specified therein, then such covenants shall survive indefinitely). Notwithstanding anything to the contrary contained in this Section 8.1, if, at any time prior to the applicable Survival Date, any Indemnified Person delivers to the Securityholders’ Representative a written notice as provided in Section 8.4(a) months following Closingalleging a breach or violation of any such representation or warranty or covenant and asserting a claim for recovery under Section 5.9 or Section 8.2 based on such breach or violation, then the representation or warranty or covenant underlying the claim asserted in such notice shall survive until such time as such claim is fully and finally resolved; provided, however, that any claims for indemnification involving (i) the Specified Matters or breach of the representations and warranties contained set forth in Section 3.9 (Intellectual Property) (the “IP Representations”), 2.11 hereof shall survive until the date that is twenty-four (24) months following Closing, (ii) any breach of any of the representations and warranties contained Tax Survival Date. Except as otherwise provided in Section 3.2 (Authority)5.9, Section 3.5 (Capital Structure)if the Merger is consummated, this Article VIII is the sole and Section 3.21 (Taxes) (collectively, exclusive remedy to the “Specified Representations”) Parties for all claims in any way related to this Agreement and the matters set forth in Sections 9.2(a)(iv)transactions contemplated hereby other than (a) claims based upon fraud or intentional misrepresentation, or intentional breach, or (vb) and (viii) shall survive until the date that is thirty-six (36) months following the Closing, and (iii) Fraud shall survive until the date that is sixty (60) months following the Closing and, in each case of (i), (ii) and (iii), shall also survive thereafter until resolved if a claim in respect thereof has been made prior to the applicable survival date with respect to such matters. If a claim has been asserted by Acquiror prior to the termination of the applicable survival date, the representation or warranty relating to such claim shall survive solely with respect to such claim until such claim is finally determined in accordance with this Agreement. The parties acknowledge that the time periods set forth in this Section 9 and elsewhere in this Agreement for the assertion of claims and notices under this Agreement are the result of arms’-length negotiation among the parties and that they intend for the time periods to be enforced as agreed hereunder by the parties. The parties further acknowledge that the time periods set forth in this Section 9 and elsewhere in the Agreement may be shorter than otherwise provided by lawseeking equitable remedies.

Survival of Representations and Warranties and Covenants. All representations, warranties, agreements and covenants made by Target herein, or in any certificate, schedule or exhibit delivered pursuant hereto, shall survive the execution and delivery of this Agreement and the Closing and shall survive until the date that is twelve (12) months following Closing; provided, however, that any claims for indemnification involving (i) the Specified Matters or breach of the The representations and warranties contained in Section 3.9 (Intellectual PropertyArticles II and III and in the certificates delivered pursuant to Sections 6.3(b) (and 6.4(b), and the “IP Representations”)covenants contained herein to be fully performed or complied with at or prior to the Closing Date, shall survive until the date that is twenty-four 18 months after the Closing Date, whereupon they shall expire; provided, however, that the representations and warranties contained in Sections 2.1 (24Corporate Status and Authority of the Seller), 2.2 (No Conflicts, Consents and Approvals), 2.3 (Corporate Status of the Company), 2.4 (Capitalization), 2.5 (Subsidiaries), and 2.19 (Brokers) months following Closing(collectively, (iithe “Fundamental Representations”) any breach of any of shall survive the Closing indefinitely; provided, further that the representations and warranties contained in Section 3.2 2.14 (Authority), Section 3.5 (Capital Structure), and Section 3.21 (TaxesTax) (collectively, the “Specified Tax Representations”) and the matters set forth in Sections 9.2(a)(iv), (v) and (viii) shall survive until the date that is thirty-six (36) months following the Closing, and (iii) Fraud shall survive until the date that is sixty (60) months following the Closing and, in each case expiration of (i), (ii) and (iii), shall also survive thereafter until resolved if a claim in respect thereof has been made prior to the applicable survival date statute of limitations (including any applicable extensions thereof). No claim for indemnification under this Article VII may be asserted with respect to such matters. If a claim has been asserted by Acquiror representations, warranties or covenants after the date indicated in the preceding sentence unless, prior to the termination of the applicable survival datedate such representations, warranties or covenants expire, the representation or warranty relating to such party seeking indemnification shall have suffered actual Damages and shall have notified in writing in reasonable detail the party from whom indemnification is sought of a claim shall survive solely with respect to such claim until such claim is finally determined in accordance with this Agreement. The parties acknowledge that the time periods set forth in this Section 9 and elsewhere in this Agreement for the assertion of claims and notices under this Agreement are the result of arms’-length negotiation among the parties and that they intend for the time periods to be enforced as agreed hereunder by the parties. The parties further acknowledge that the time periods set forth in this Section 9 and elsewhere in the Agreement may be shorter than otherwise provided by lawindemnity hereunder.