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

Survival of Representations and Warranties and Covenants. If the Merger is consummated, absent fraud, willful breach or intentional misrepresentation, the representations and warranties of the Company contained in this Agreement, the Company Disclosure Schedule (including any exhibit or schedule to the Company Disclosure Schedule), and the other certificates contemplated hereby (and the indemnification obligations of the Company relating thereto) shall survive the Closing and remain in full force and effect, regardless of any investigation or disclosure made by or on behalf of any of the parties to this Agreement, until 11:59 p.m. Pacific Time on the date that is 18 months following the Closing Date (or if such date is not a Business Day, until such time on the first Business Day thereafter); provided, however, that the representations and warranties of the Company contained in Section 2.2 (Capitalization), Section 2.3 (Due Authorization), Section 2.13 (No Finder’s Fees; Transaction Expenses) or Section 2.15 (Tax Returns and Payment) and in any certificate delivered to Acquiror regarding Capitalization, Due Authorization, Finder’s Fees or Tax Returns (and the indemnification obligations of the Company Stockholders relating thereto) will remain operative and in full force and effect, regardless of any investigation or disclosure made by or on behalf of any of the parties to this Agreement, until 11:59 p.m. Pacific Time on the date that is 36 months following the Closing Date (or if such date is not a Business Day, until such time on the first Business Day thereafter); and provided, further, that no right to indemnification pursuant to Article IX in respect of any claim that is set forth in an Officer’s Certificate delivered to the Stockholders’ Agent prior to the expiration of the Claims Period, or with respect to Special Matters, the Subsequent Claims Period, shall be affected by the expiration of such representations and warranties. The representations and warranties of Acquiror and the Merger Sub contained in this Agreement, the Acquiror Related Agreements or in any certificate or other instrument delivered pursuant to this Agreement shall terminate at the Closing. If the Merger is consummated, all covenants of the parties shall expire and be of no further force or effect as of the Closing, except to the extent such covenants provide that they are to be performed after the Closing; provided, however, that no right to indemnification pursuant to Article IX in respect of any claim based upon any breach of a covenant prior to the Closing shall be affected by the expiration of such covenant (subject to the limitations set forth in this Agreement). Acquiror’s right to recover Indemnifiable Damages under this Agreement shall in no way be affected by any investigation by or knowledge of Acquiror, whether prior to or after the date hereof.

Survival of Representations and Warranties and Covenants. If the Merger is consummated, absent fraud, willful breach or intentional misrepresentation, the representations and warranties of the Company contained in this Agreement, the Company Disclosure Schedule Letter (including any exhibit or schedule to the Company Disclosure ScheduleLetter), and the other certificates contemplated hereby (and the indemnification obligations of the Company relating thereto) shall survive the Closing and remain in full force and effect, regardless of any investigation or disclosure made by or on behalf of any of the parties to this Agreement, until 11:59 p.m. Pacific Time on the date that is 18 fifteen (15) months following the Closing Date (or if such date is not a Business Day, until such time on the first Business Day thereafter“Expiration Date”); provided, however, that the representations and warranties of the Company contained in Section 2.2 (Capitalization), Section 2.3 (Due Authorization), Section 2.13 (No Finder’s Fees; Transaction Expenses) or Section 2.15 (Tax Returns and Payment) Special Representations and in any certificate delivered to Acquiror regarding Capitalization, Due Authorization, Finder’s Fees or Tax Returns the Special Representations (and the indemnification obligations of the Company Stockholders Indemnifying Parties relating thereto) and otherwise in the case of, will remain operative and in full force and effect, regardless of any investigation or disclosure made by or on behalf of any of the parties to this Agreement, until 11:59 p.m. Pacific Time on the date that is 36 expiration of the applicable statute of limitations (if later than the expiration of fifteen (15) months following the Closing Date (or if such date is not a Business Day, until such time on the first Business Day thereafterDate); and provided, further, that no right to indemnification pursuant to Article IX VIII in respect of any claim that is set forth in an Officer’s Certificate delivered to the StockholdersIndemnifying Parties’ Agent prior to the expiration of the Claims Period, or with respect to Special MattersFundamental Claims, the Subsequent Claims Period, shall be affected by the expiration of such representations and warranties. The If the Merger is consummated, the representations and warranties of Acquiror and the Merger Sub contained in this Agreement, Agreement and the Acquiror Related Agreements or in any certificate or other instrument delivered pursuant to this Agreement certificates contemplated hereby shall terminate at survive until 11:59 p.m. Pacific Time on the Closingdate that is fifteen (15) months following the Closing Date. If the Merger is consummated, all covenants of the parties shall expire and be of no further force or effect as of the Closing, except to the extent such covenants provide that they are to be performed after the Closing; provided, however, that no right to indemnification pursuant to Article IX VIII in respect of any claim based upon any breach of a covenant prior to the Closing shall be affected by the expiration of such covenant (subject to the limitations set forth in this Agreement). Acquiror’s right to recover Indemnifiable Damages under this Agreement shall in no way be affected by any investigation by or knowledge of Acquiror, whether prior to or after the date hereof.

Survival of Representations and Warranties and Covenants. If the Merger Share Purchase is consummated, absent fraud, willful breach or intentional misrepresentation, the representations and warranties of the Company Sellers contained in this Agreement, the Company Disclosure Schedule Agreement (including any exhibit or schedule Schedule to the Company Sellers’ Disclosure ScheduleLetter), and the other certificates contemplated hereby (and the indemnification obligations of the Company relating thereto) shall survive the Closing and remain in full force and effect, regardless of any investigation or disclosure made by or on behalf of any of the parties to this Agreement, until 11:59 p.m. Pacific Time on the date that is 18 *** months following the Closing Date (or if such date is not a Business Day, until such time on the first Business Day thereafter)Date; provided, however, that the representations and warranties of the Company Sellers contained in Section 2.2 (Capitalization), Section 2.3 (Due Authorization), Section 2.13 (No Finder’s Fees; Transaction Expenses) or Section 2.15 (Tax Returns and Payment) and in any certificate delivered to Acquiror regarding Capitalization, Due Authorization, Finder’s Fees or Tax Returns (and the indemnification obligations of the Company Stockholders relating thereto) *** will remain operative and in full force and effect, regardless of any investigation or disclosure made by or on behalf of any of the parties to this Agreement, until 11:59 p.m. Pacific Time on the date that is 36 expiration of the applicable statute of limitations (if later than the expiration of 18 months following the Closing Date (Date) for claims against the Sellers which seek recovery of Indemnifiable Damages arising out of an inaccuracy or if breach of such date is not a Business Day, until such time on the first Business Day thereafter)representations or warranties; and provided, provided further, that no right to indemnification pursuant to Article IX VIII in respect of any claim that is set forth in an Officer’s Certificate delivered to the Stockholders’ Escrow Agent prior to the expiration of the Claims Period, or with respect to Special Matters, the Subsequent Claims Period, Escrow Period shall be affected by the expiration of such representations and warranties; and provided, further, that such expiration shall not affect the rights of any Indemnified Person under Article VIII or otherwise to seek recovery of Indemnifiable Damages arising out of any fraud or intentional misrepresentation by any Seller until the expiration of the applicable statute of limitations. The If the Share Purchase is consummated, the representations and warranties of Acquiror and the Merger Sub Purchaser contained in this Agreement, Agreement and the Acquiror Related Agreements or in any certificate or other instrument delivered pursuant to this Agreement shall terminate at the Closing. If the Merger is consummated, all covenants of the parties certificates contemplated hereby shall expire and be of no further force or effect as of the Closing. If the Share Purchase is consummated, all covenants of the parties (including the covenants set forth in Article IV and Article V) shall expire and be of no further force or effect on the date that is 18 months following the Closing Date, except to the extent such covenants provide that they are to be performed after the Closing; provided, however, that no right to indemnification pursuant to Article IX VIII in respect of any claim based upon any breach of a covenant prior to the Closing shall be affected by the expiration of such covenant (subject to the limitations set forth in this Agreement). Acquiror’s right to recover Indemnifiable Damages under this Agreement shall in no way be affected by any investigation by or knowledge of Acquiror, whether prior to or after the date hereofcovenant.

Survival of Representations and Warranties and Covenants. If the Merger is consummated, absent fraud, willful breach or intentional misrepresentation, the representations and warranties of the Company contained in this Agreement, the Company Disclosure Schedule Letter (including any exhibit or schedule to the Company Disclosure ScheduleLetter), and the other certificates contemplated hereby (and the indemnification obligations of the Company relating thereto) shall survive the Closing and remain in full force and effect, regardless of any investigation or disclosure made by or on behalf of any of the parties to this Agreement, until 11:59 p.m. Pacific Time on the date that is 18 24 months following the Closing Date (or if such date is not a Business Day, until such time on the first Business Day thereafter)Date; provided, however, that the Special Representations and the representations and warranties of the Company contained in Section 2.2 (Capitalization), Section 2.3 (Due Authorization), Section 2.13 (No Finder’s Fees; Transaction Expenses) or Section 2.15 (Tax Returns and Payment) and in any certificate delivered to Acquiror regarding Capitalizationthe same subject matter as those covered by the Special Representations pursuant to any provision of this Agreement, Due Authorization, Finder’s Fees or Tax Returns (and the indemnification obligations of the Company Stockholders relating thereto) will remain operative and in full force and effect, regardless of any investigation or disclosure made by or on behalf of any of the parties to this Agreement, until 11:59 p.m. Pacific Time on the expiration of the applicable statute of limitations (if later than the expiration of the date that is 36 24 months following the Closing Date (Date) for claims against the Converting Holders and Management Plan Participants which seek recovery of Indemnifiable Damages arising out of an inaccuracy or if breach of such date is not a Business Day, until such time on the first Business Day thereafter)representations or warranties; and provided, further, that no right to indemnification pursuant to Article IX ARTICLE 8 in respect of any claim that is set forth in an Officer’s Claim Certificate delivered to the Stockholders’ Agent prior to the expiration of the Claims Period, or with respect to Special Matters, the Subsequent Claims Period, Holdback Period shall be affected by the expiration of such representations and warranties; and provided, further, that such expiration shall not affect the rights of any Indemnified Person under ARTICLE 8 or otherwise to seek recovery of Indemnifiable Damages arising out of any Fundamental Claims until the expiration of the applicable statute of limitations (if later than the expiration of the date that is 24 months following the Closing Date). The If the Merger is consummated, the representations and warranties of Acquiror and the Merger Sub contained in this Agreement, Agreement and the Acquiror Related Agreements other certificates contemplated hereby shall expire and be of no further force or in any certificate or other instrument delivered pursuant to this Agreement shall terminate at effect as of the Closing. If the Merger is consummated, all covenants of the parties shall expire and be of no further force or effect as of the Closing, except to the extent such covenants provide that they are to be performed at or after the Closing; provided, however, that no right to indemnification pursuant to Article IX ARTICLE 8 in respect of any claim based upon any breach of a covenant prior to the Closing shall be affected by the expiration of such covenant (subject to covenant. Notwithstanding the limitations set forth in this Agreement). Acquiror’s right to recover foregoing, claims for Indemnifiable Damages under this Agreement shall in no way may be affected by any investigation by or knowledge of Acquiror, whether prior to or after made during the date hereofClaims Period.

Survival of Representations and Warranties and Covenants. If the Merger is Mergers are consummated, absent fraud, willful breach or intentional misrepresentation, the representations and warranties of the Parent and Company contained in this Agreement, the Company Disclosure Schedule Letter (including any exhibit or schedule to the Company Disclosure ScheduleLetter), and the other certificates contemplated hereby (and the indemnification obligations of the Company relating thereto) shall survive the Closing and remain in full force and effect, regardless of any investigation or disclosure made by or on behalf of any of the parties to this Agreement, effect until 11:59 p.m. Pacific Time on the date that is 18 months following the Closing Date (or if such date is not a Business Day, until such time on the first Business Day thereafter)Date; provided, however, that the Special Representations and the representations and warranties of the Parent and Company contained in Section 2.2 (Capitalization), Section 2.3 (Due Authorization), Section 2.13 (No Finder’s Fees; Transaction Expenses) or Section 2.15 (Tax Returns and Payment) and in any certificate delivered to Acquiror regarding Capitalizationthe same subject matter as those covered by the Special Representations pursuant to any provision of this Agreement, Due Authorization, Finder’s Fees or Tax Returns (and the indemnification obligations of the Company Stockholders relating thereto) will remain operative and in full force and effect, regardless of any investigation or disclosure made by or on behalf of any effect until the expiration of the parties to this Agreement, until 11:59 p.m. Pacific Time on applicable statute of limitations (if later than the expiration of the date that is 36 18 months following the Closing Date (Date) for claims against the Company Stockholders and Parent Members which seek recovery of Indemnifiable Damages arising out of an inaccuracy or if breach of such date is not a Business Day, until such time on the first Business Day thereafter)representations or warranties; and provided, further, that no right to indemnification pursuant to Article IX ARTICLE 8 in respect of any claim that is set forth in an Officer’s a Claim Certificate delivered to the Stockholders’ Agent prior to the expiration of the Claims Period, or with respect to Special Matters, the Subsequent Claims Period, Holdback Period shall be affected by the expiration of such representations and warranties; and provided, further, that such expiration shall not affect the rights of any Indemnified Person under ARTICLE 8 or otherwise to seek recovery of Indemnifiable Damages arising out of any Fundamental Claims and any claims relating to a failure of the representations and warranties contained in Section 2.11 (Taxes) to be true and correct until the expiration of the applicable statute of limitations (if later than the expiration of the date that is 18 months following the Closing Date). The If the Mergers are consummated, the representations and warranties of Acquiror and the Merger Sub Subs contained in this Agreement, Agreement and the Acquiror Related Agreements other certificates contemplated hereby shall expire and be of no further force or in any certificate or other instrument delivered pursuant to this Agreement shall terminate at effect as of the Closing. If the Merger is Mergers are consummated, all covenants of the parties shall expire and be of no further force or effect as of the Closing, except to the extent such covenants provide that they are to be performed at or after the Closing; provided, however, that no right to indemnification pursuant to Article IX ARTICLE 8 in respect of any claim based upon any breach of a covenant prior to the Closing shall be affected by the expiration of such covenant (subject to covenant. Notwithstanding the limitations set forth in this Agreement). Acquiror’s right to recover foregoing, claims for Indemnifiable Damages under this Agreement shall in no way may be affected by any investigation by or knowledge of Acquiror, whether prior to or after made during the date hereofClaims Period.

Survival of Representations and Warranties and Covenants. If the Merger is consummated, absent fraud, willful breach or intentional misrepresentation, the representations and warranties of the Company contained in this Agreement, the Company Disclosure Schedule Letter (including any exhibit or schedule to the Company Disclosure ScheduleLetter), and the other certificates contemplated hereby (and the indemnification obligations of the Company relating thereto) shall survive the Closing and remain in full force and effect, regardless of any investigation or disclosure made by or on behalf of any of the parties to this Agreement, until 11:59 p.m. Pacific Time on the date that is 18 twelve (12) months following the Closing Date (or if such date is not a Business Day, until such time on the first Business Day thereafter)Date; provided, however, that the representations and warranties of the Company contained in Section 2.2 (Capitalization), Section 2.3 (Due Authorization), Section 2.13 (No Finder’s Fees; Transaction Expenses) or Section 2.15 (Tax Returns and Payment) and in any certificate delivered to Acquiror regarding Capitalization, Due Authorization, Finder’s Fees or Tax Returns (and the indemnification obligations of the Company Stockholders relating thereto) will remain operative and in full force and effect, regardless of any investigation or disclosure made by or on behalf of any of the parties to this Agreement, until 11:59 p.m. Pacific Time on the date that is 36 months following the Closing Date (or if such date is not a Business Day, until such time on the first Business Day thereafter); and provided, further, that no right to indemnification pursuant to Article IX 8 in respect of any claim based upon an inaccuracy or breach of a representation or warranty that is set forth in an Claim Certificate delivered to the Effective Time Holders’ Agent prior to the applicable expiration date of such representation or warranty shall be affected by the expiration of such representation or warranty. The representations and warranties of the Company contained in this Agreement and the other agreements, certificates and documents contemplated hereby shall expire and be of no further force or effect at 11:59 p.m. California time on the 12-month anniversary of the Closing provided, however, no right to indemnification pursuant to Article 8 in respect of any claim that is set forth in an Officer’s Claim Certificate delivered to the Stockholders’ Escrow Agent prior to the expiration of the Claims Period, or with respect to Special Matters, the Subsequent Claims Period, Escrow Period shall be affected by the expiration of such representations and warranties. The representations and warranties of Acquiror and the Merger Sub Acquirer contained in this AgreementAgreement and the other agreements, the Acquiror Related Agreements certificates and documents contemplated hereby shall expire and be of no further force or in any certificate or other instrument delivered pursuant to this Agreement shall terminate at effect as of the Closing. If the Merger is consummated, all covenants of the parties (including the covenants set forth in Article 4 and Article 5) shall expire and be of no further force or effect as of the Closing, except to the extent such covenants provide that they are to be performed after the Closing; provided. Other than for fraud by the Company, however, that no right to indemnification Acquirer and the Company expressly agree pursuant to Article IX in respect this Section 9.1 to shorten the statutes of any claim limitations applicable to all claims and causes of action based upon any breach inaccuracies in or breaches of a covenant prior to (i) representations and warranties of the Closing shall be affected by Company in this Agreement and (ii) the expiration representations and warranties of such covenant (subject to the limitations set forth Acquirer and Sub in this Agreement). Acquiror’s right , in each case to recover Indemnifiable Damages under the period specified in this Agreement shall in no way be affected by any investigation by or knowledge of Acquiror, whether prior to or after the date hereofSection 9.1.

Survival of Representations and Warranties and Covenants. If the Merger is consummated, absent fraud, willful breach or intentional misrepresentation, the The representations and warranties of Parent and the Company contained in this Agreement, the Company Disclosure Schedule Letter (including any exhibit or schedule to the Company Disclosure ScheduleLetter), and the other certificates contemplated hereby (and the indemnification obligations of the Company relating thereto) shall survive the Closing and remain in full force and effect, regardless of any investigation or disclosure made by or on behalf of any of the parties to this Agreement, until 11:59 p.m. Pacific Time on the date that is 18 months following the Closing Date (or if such date is not a Business Day, until such time on the first Business Day thereafter)Escrow Release Date; provided, however, that the Special Representations and the representations and warranties of Parent and the Company contained in Section 2.2 (Capitalization), Section 2.3 (Due Authorization), Section 2.13 (No Finder’s Fees; Transaction Expenses) or Section 2.15 (Tax Returns and Payment) and in any certificate delivered to Acquiror regarding Capitalization, Due Authorization, Finder’s Fees or Tax Returns (and the indemnification obligations same subject matter as those covered by the Special Representations pursuant to any provision of the Company Stockholders relating thereto) this Agreement will remain operative and in full force and effect, regardless of any investigation or disclosure made by or on behalf of any Parent or the Company, until the expiration of ninety (90) days following the expiration of the parties to this Agreement, until 11:59 p.m. Pacific Time on applicable statute of limitations (if later than the date that is 36 months following expiration of the Closing Date (Escrow Release Date) for claims which seek recovery of Indemnifiable Damages arising out of an inaccuracy or if breach of such date is not a Business Day, until such time on the first Business Day thereafter)representations or warranties; and provided, provided further, that no right to indemnification pursuant to Article IX 5 in respect of any claim that is set forth in an Officer’s Certificate delivered to the Stockholders’ Agent made prior to the expiration of the Claims Period, or with respect to Special Matters, the Subsequent Claims Period, Escrow Release Date shall be affected by the expiration of such representations and warrantieswarranties after the delivery of a Claim Certificate in respect of such claim; and provided, further, that such expiration shall not affect the rights of any Indemnified Person under Article 5 or otherwise to seek recovery of Indemnifiable Damages arising out of any fraud, willful breach or intentional misrepresentation by Parent or the Company until the expiration of the applicable statute of limitations. The representations and warranties of Acquiror and the Merger Sub contained in this Agreement, Agreement and the Acquiror Related Agreements other certificates contemplated hereby shall expire and be of no further force or in any certificate or other instrument delivered pursuant to this Agreement shall terminate at effect as of the Closing. If the Merger is consummated, all All covenants of the parties (including the covenants set forth in Article 4) shall expire and be of no further force or effect as of the Closing, except to the extent such covenants provide or contemplate by their terms that they survive or are to be performed after the Closing; provided, however, that no right to indemnification pursuant to Article IX 5 in respect of any claim based upon any breach of a covenant prior to the Closing shall be affected by the expiration of such covenant (subject to the limitations set forth in this Agreement). Acquiror’s right to recover Indemnifiable Damages under this Agreement shall in no way be affected by any investigation by or knowledge of Acquiror, whether prior to or after the date hereofcovenant.

Survival of Representations and Warranties and Covenants. If the Merger is consummated, absent fraud, willful breach or intentional misrepresentation, the representations and warranties of the Company contained in this Agreement, the Company Disclosure Schedule Letter (including any exhibit or schedule to the Company Disclosure ScheduleLetter), and the other certificates contemplated hereby (and the indemnification obligations of the Company relating thereto) shall survive the Closing and remain in full force and effect, regardless of any investigation or disclosure made by or on behalf of any of the parties to this Agreement, until 11:59 p.m. Pacific Time California time on the date that is 18 twelve (12) months following after the Closing Date Date, or (a) in the case of the Fundamental Representations and Warranties or if such date is not a Business DayTax Matters, until the expiration of the applicable statute of limitations with respect to such time on Fundamental Representations and Warranties and Tax Matters and (b) in the first Business Day thereafter)case of the Select Matters, until the two (2) year anniversary of the Closing Date; provided, however, that no right to indemnification pursuant to Article 8 in respect of any claim based upon an inaccuracy or breach of a representation or warranty that is set forth in an Claim Certificate delivered to the representations Effective Time Holders’ Agent prior to the applicable expiration date of such representation or warranty shall be affected by the expiration of such representation or warranty; and warranties provided, further, that such expiration shall not affect the rights of any Indemnified Person under Article 8 or otherwise to seek recovery of Indemnifiable Damages arising out of any fraud by the Company or any Subsidiary until the expiration of the Company applicable statute of limitations. The representations, warranties and covenants of Acquirer contained in Section 2.2 (Capitalization), Section 2.3 (Due Authorization), Section 2.13 (No Finder’s Fees; Transaction Expenses) or Section 2.15 (Tax Returns and Payment) and in any certificate delivered to Acquiror regarding Capitalization, Due Authorization, Finder’s Fees or Tax Returns (this Agreement and the indemnification obligations of other agreements, certificates and documents contemplated hereby shall survive the Company Stockholders relating thereto) will Closing and remain operative and in full force and effect, regardless of any investigation or disclosure made by or on behalf of any of the parties to this Agreement, until 11:59 p.m. Pacific Time California time on the date that is 36 twelve (12) months following after the Closing Date (or if such date is not a Business Day, until such time on the first Business Day thereafter)Date; and provided, furtherhowever, that no right to indemnification pursuant to Article IX in respect of any claim that is set forth in an Officer’s Certificate delivered to the Stockholders’ Agent prior to the expiration covenants of the Claims Period, Acquirer or with respect its subsidiaries that require performance beyond such expiration date shall continue to Special Matters, the Subsequent Claims Period, shall be affected by the expiration of such representations and warranties. The representations and warranties of Acquiror and the Merger Sub contained in this Agreement, the Acquiror Related Agreements or in any certificate or other instrument delivered pursuant to this Agreement shall terminate at the Closingsurvive. If the Merger is consummated, all covenants of the parties (including the covenants set forth in Article 4 and Article 5) shall expire and be of no further force or effect as of the Closing, except to the extent such covenants provide that they are to be performed after the Closing; provided, however, that no right to indemnification pursuant to Article IX in respect of any claim based upon any breach of a covenant prior to the Closing shall be affected by the expiration of such covenant (subject to the limitations set forth in this Agreement). Acquiror’s right to recover Indemnifiable Damages under this Agreement shall in no way be affected by any investigation by or knowledge of Acquiror, whether prior to or after the date hereof.

Survival of Representations and Warranties and Covenants. If the Merger is consummated, absent fraud, willful breach or intentional misrepresentation, the representations and warranties of the Company contained in this Agreement, as modified or qualified by the Company Disclosure Schedule (including any exhibit or schedule to the Company Disclosure Schedule), and the other certificates contemplated hereby (and the indemnification obligations of the Company Stockholders relating thereto) shall survive the Closing and remain in full force and effect, regardless of any investigation or disclosure made by or on behalf of any of the parties to this Agreement, until 11:59 p.m. Pacific Time on the date that is 18 months following month anniversary of the Closing Date (or if such date is not a Business Day, until such time on the first Business Day thereafter) (the period ending on such date the “General Survival Period”); providedprovided however, that notwithstanding the foregoing (i) the survival period for Fundamental Claims shall be the applicable statute of limitations; and (ii) the survival period for IP/EB Claims will end on the 30 month anniversary of Closing (the “IP/EB Claims Survival Period”); provided further, however, that upon the consummation of an Acquiror COC Event, the IP/EB Claims Survival Period shall immediately terminate. If the Merger is consummated, the representations and warranties of the Company Acquiror contained in Section 2.2 (Capitalization), Section 2.3 (Due Authorization), Section 2.13 (No Finder’s Fees; Transaction Expenses) or Section 2.15 (Tax Returns and Payment) and in any certificate delivered to Acquiror regarding Capitalization, Due Authorization, Finder’s Fees or Tax Returns (this Agreement and the indemnification obligations of the Company Stockholders relating thereto) will remain operative and in full force and effect, regardless of any investigation or disclosure made by or on behalf of any of the parties to this Agreement, other certificates contemplated hereby shall survive until 11:59 p.m. Pacific Time on the date that is 36 twelve (12) months following the Closing Date (or if such date is not a Business Day, until such time on the first Business Day thereafter); and provided, further, that no right to indemnification pursuant to Article IX in respect of any claim that is set forth in an Officer’s Certificate delivered to the Stockholders’ Agent prior to the expiration of the Claims Period, or with respect to Special Matters, the Subsequent Claims Period, shall be affected by the expiration of such representations and warranties. The representations and warranties of Acquiror and the Merger Sub contained in this Agreement, the Acquiror Related Agreements or in any certificate or other instrument delivered pursuant to this Agreement shall terminate at the ClosingDate. If the Merger is consummated, all covenants of the parties shall expire and be of no further force or effect as of the Closing, except to the extent such covenants expressly provide that they are to be performed after the Closing; provided, however, that no right to indemnification pursuant to Article IX VI in respect of any claim based upon any breach of a covenant prior to the Closing shall be affected by the expiration of such covenant (subject to the limitations set forth in this Agreement). Acquiror’s right The parties acknowledge that by this Section 7.1 and the claim limitations set forth in Article VI, it is their intention to recover Indemnifiable Damages under this Agreement shall in no way contractually establish their own limitations periods for bringing claims, which may be affected by any investigation by or knowledge of Acquiror, whether prior to or after the date hereofshorter than what applicable law would otherwise provide.

Survival of Representations and Warranties and Covenants. If the Merger is consummated, absent fraud, willful breach or intentional misrepresentation, the The representations and warranties of the Company Company, the Israeli Subsidiary and the Sellers contained in this Agreement, the other Transaction Documents (including the Company Disclosure Schedule (including Letter and any exhibit or schedule to the Company Disclosure ScheduleLetter), and the other certificates contemplated hereby (and the indemnification obligations of the Company relating thereto) shall survive the Closing and remain in full force and effect, regardless of any investigation or disclosure made by or on behalf of any of the parties to this Agreement, until 11:59 p.m. Pacific Time on the date that is 18 twelve (12) months following the Closing Date (or if such date is not a Business Day, until such time on the first Business Day thereafter)Date; provided, however, that the Special Representations and the representations and warranties of the Company contained in Section 2.2 (Capitalization), Section 2.3 (Due Authorization), Section 2.13 (No Finder’s Fees; Transaction Expenses) or Section 2.15 (Tax Returns and Payment) and in any certificate delivered to Acquiror Buyer regarding Capitalizationthe same subject matter as those covered by the Special Representations pursuant to any provision of this Agreement, Due Authorization, Finder’s Fees or Tax Returns (and the indemnification obligations of the Company Stockholders relating thereto) will remain operative and in full force and effect, regardless of any investigation or disclosure made by or on behalf of any of the parties to this Agreement, until 11:59 p.m. Pacific Time on the expiration of the date that is 36 fifteen (15) months following the Closing Date (Date; provided, however, that the Fundamental Representations and the representations and warranties of the Company contained in any certificate delivered to Buyer regarding the same subject matter as those covered by the Fundamental Representations pursuant to any provision of this Agreement, will remain operative and in full force and effect, regardless of any investigation or if such date is not a Business Daydisclosure made by or on behalf of any of the parties to this Agreement, until such time on the first Business Day thereafter)expiration of the applicable statute of limitations; and provided, provided further, that no right to indemnification pursuant to Article IX ARTICLE 9 in respect of any claim that is set forth in an Officer’s a Claim Certificate delivered to the StockholdersSellers’ Agent Representative prior to the expiration of the Claims Period, or with respect to Special Matters, the Subsequent Claims Period, Period shall be affected by the expiration of such representations and warranties; and provided, further, that such expiration shall not affect the rights of any Indemnified Person under ARTICLE 9 or otherwise to seek recovery of Indemnifiable Damages arising out of any Fundamental Claims until the expiration of the applicable statute of limitations (if later than the expiration of the date that is fifteen (15) months following the Closing Date). The If the Share Exchange is consummated, the representations and warranties of Acquiror and the Merger Sub Buyer contained in this AgreementAgreement and the other Transaction Documents shall expire and be of no further force or effect as of March 1, the Acquiror Related Agreements or in any certificate or other instrument delivered pursuant to this Agreement shall terminate at the Closing2015. If the Merger Share Exchange is consummated, all covenants of the parties shall expire and be of no further force or effect as of the Closing, except to the extent such covenants provide that they are to be performed after the Closing; provided, however, that no right to indemnification pursuant to Article IX ARTICLE 9 in respect of any claim based upon any breach of a covenant prior to the Closing shall be affected by the expiration of such covenant (subject to the limitations set forth in this Agreement). Acquiror’s right to recover Indemnifiable Damages under this Agreement shall in no way be affected by any investigation by or knowledge of Acquiror, whether prior to or after the date hereofcovenant.