Common use of Survival of Representations and Warranties Clause in Contracts

Survival of Representations and Warranties. Notwithstanding any right of Buyer or Seller fully to investigate the affairs of Buyer or Seller, and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer contained in this Agreement, or listed or disclosed on any Schedule hereto or in any instrument or document delivered in connection with or pursuant to any of the foregoing. All such representations, warranties, covenants and agreements shall survive the execution and delivery of this Agreement and the Closing hereunder for a period of two (2) years after the Closing Date, except that (a) any representation, warranty, covenant or agreement contained in Sections 3.1 and 4.2 hereof shall survive the execution and delivery of this Agreement and the Closing hereunder without limitation, (b) any representation, warranty, covenant or agreement related to Taxes shall survive the execution and delivery of this Agreement and the Closing hereunder until the expiration of the applicable statute of limitations, (c) any non-compete agreement delivered pursuant hereto shall survive the Closing until the expiration of the duration of such covenant not to compete, and (d) any representation, warranty, covenant or agreement contained herein and any Liabilities of Seller with respect thereto relating to Medicare, Medicaid or third party payors shall survive until the later of the third anniversary of the Closing Date or the conclusion of any audit or review commenced within such three-year period.

Appears in 4 contracts

Samples: Asset Purchase Agreement (Preferred Employers Holdings Inc), Asset Purchase Agreement (Us Homecare Corp), Asset Purchase Agreement (Transworld Home Healthcare Inc)

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Survival of Representations and Warranties. Notwithstanding any right of Buyer or Seller fully to investigate the affairs of Buyer or Seller, The representations and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer warranties set forth in Articles III and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer contained in this Agreement, or listed or disclosed on any Schedule hereto or in any instrument or document delivered in connection with or pursuant to any of the foregoing. All such representations, warranties, covenants and agreements shall survive the execution and delivery IV of this Agreement and the Closing hereunder for a period of two (2) years after shall survive until twelve months following the Closing Date, except at which time such representations or warranties will terminate and no indemnification obligations or any other action, claim or proceeding will be associated therewith, based thereon or otherwise brought, claimed or noticed following such termination; provided, however, that (a) any representation, warranty, covenant or agreement contained the representations and warranties of Seller set forth in Sections 3.1 and 4.2 hereof Section 3.14 (Taxes) shall survive the execution and delivery of this Agreement and the Closing hereunder without limitation, (b) any representation, warranty, covenant or agreement related to Taxes shall survive the execution and delivery of this Agreement and the Closing hereunder until 30 days after the expiration of the applicable statute of limitations; (b) the representations and warranties of Seller set forth in Section 3.1 (Organization), Section 3.2 (Capitalization), Section 3.4 (Authority), Section 3.8(c) (No Undisclosed Liabilities; No Adverse Changes) and Section 3.17 (Brokers) (collectively, the “Seller Fundamental Representations”) and Section 4.1 (Organization), Section 4.2 (Authority) and Section 4.5 (Brokers) shall survive indefinitely; and (c) any non-compete agreement delivered pursuant hereto shall survive the Closing until the expiration of the duration of such covenant not to compete, representations and (d) any representation, warranty, covenant or agreement contained herein and any Liabilities warranties of Seller with respect thereto relating to Medicare, Medicaid or third party payors set forth in Section 3.13 (Environmental) shall survive until the later of the third anniversary of the Closing Date Date. Notwithstanding the survival periods set forth above, as to each claim for indemnification under this Agreement regarding a representation or the conclusion warranty that is validly made before expiration of any audit such representation or review commenced within warranty, such three-year periodclaim and associated right to indemnification will not terminate before final determination and satisfaction of such claim.

Appears in 4 contracts

Samples: Securities Purchase Agreement (Atlas Pipeline Holdings, L.P.), Securities Purchase Agreement (Spectra Energy Partners, LP), Securities Purchase Agreement (Atlas America Inc)

Survival of Representations and Warranties. Notwithstanding any right The representations and warranties of Buyer or Abbott, Seller fully to investigate the affairs of Buyer or Seller, and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer Purchaser contained in this Agreement, or listed or disclosed on any Schedule hereto or in any instrument or document delivered in connection with or pursuant to any of the foregoing. All such representations, warranties, covenants and agreements Agreement shall survive the execution and delivery of this Agreement and the Closing hereunder for a period of two twelve (212) years after months following the Closing Date; provided, except however that (a) any representation, warranty, covenant or agreement the representations and warranties of Abbott contained in Sections 3.1 Section 3.01 (Organization; Standing), Section 3.02 (Corporate Authorization) and 4.2 hereof shall survive the execution Section 3.04 (Brokers and delivery of this Agreement and the Closing hereunder without limitationOther Advisors), (b) any representationthe Fundamental Representations, warrantyand (c) the representations and warranties of Purchaser contained in Section 5.01 (Organization; Standing), covenant or agreement related to Taxes Sections 5.02(a) and (b) (Corporate Authorization) and Section 5.07 (Brokers and Other Advisors) shall survive the execution and delivery of this Agreement and the Closing hereunder until thirty (30) days after the expiration of the applicable statute of limitationslimitations (including any extensions thereof, (c) any non-compete agreement delivered pursuant hereto shall survive whether automatic or permissive). All covenants contained in this Agreement which are to be performed prior to the Closing until shall terminate on the Closing Date. The covenants contained in this Agreement which are to be performed at or after the Closing shall terminate thirty (30) days after the expiration of the duration applicable statute of such covenant not to competelimitations (including any extensions thereof, and (d) any whether automatic or permissive). Notwithstanding the foregoing, each representation, warranty, covenant or and agreement contained herein and any Liabilities of Seller in this Agreement shall survive the time at which it would otherwise expire pursuant to this Section 10.01 if, prior to such time, a Third Party Claim Notice or Direct Claim Notice with respect thereto relating to Medicare, Medicaid the breach shall have been timely delivered to the Party against whom such indemnity may be sought in accordance with Section 10.05. Any claim not asserted in accordance with this Article X on or third party payors shall survive until prior to the later expiration of the third anniversary of the Closing Date or the conclusion of any audit or review commenced within such three-year periodapplicable survival period set forth in this Section 10.01 will be irrevocably and unconditionally released and waived.

Appears in 4 contracts

Samples: Purchase Agreement (Quidel Corp /De/), Purchase Agreement (Alere Inc.), Purchase Agreement (Quidel Corp /De/)

Survival of Representations and Warranties. Notwithstanding any right The representations and warranties of Buyer or Seller fully to investigate the affairs of Buyer or Seller, and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer Parties contained in this Agreement, or listed or disclosed on Agreement and any Schedule certificate delivered pursuant hereto or in any instrument or document delivered in connection with or pursuant to any of the foregoing. All such representations, warranties, covenants and agreements shall survive the execution and delivery of this Agreement and the Closing hereunder for a period of two (2) years after eighteen months following the Closing Date, except that (ai) the Fundamental Representations contained herein and any representation, warranty, covenant or agreement Fundamental Representations contained in Sections 3.1 and 4.2 hereof shall survive the execution and delivery of this Agreement and the Closing hereunder without limitation, (b) any representation, warranty, covenant or agreement related to Taxes shall survive the execution and delivery of this Agreement and the Closing hereunder until the expiration of the applicable statute of limitations, (c) any non-compete agreement certificate delivered pursuant hereto shall survive the Closing indefinitely and (ii) the representations and warranties set forth in Section 3.10 shall survive until the date that is 60 days after the expiration of the duration applicable statutes of limitations including any extension thereof (the applicable period of survival of a representation, warranty or covenant being the “Survival Period”); provided that, notwithstanding the expiration of any Survival Period, any obligations under Section 7.2(a) or Section 7.2(b) shall not terminate with respect to any Loss as to which the Person to be indemnified shall have given notice to the Indemnifying Party in accordance with Section 7.3 before the termination of the applicable Survival Period. The Survival Period for all covenants contained in this Agreement that, by their terms, are to be performed at or prior to the Closing, shall be fifteen months after the Closing, and all covenants contained in this Agreement that, by their terms, are to be performed after the Closing, shall survive the Closing until the performance of such covenant not to compete, and (d) any representation, warranty, covenant or agreement contained herein and any Liabilities of Seller covenants in accordance with respect thereto relating to Medicare, Medicaid or third party payors shall survive until the later of the third anniversary of the Closing Date or the conclusion of any audit or review commenced within such three-year periodtheir terms.

Appears in 4 contracts

Samples: Contribution Agreement (WESTMORELAND COAL Co), Contribution Agreement (Westmoreland Resource Partners, LP), Contribution Agreement (Westmoreland Resource Partners, LP)

Survival of Representations and Warranties. Notwithstanding any right The representations and warranties of Buyer or Xxxxxx, Seller fully to investigate the affairs of Buyer or Seller, and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer Purchaser contained in this Agreement, or listed or disclosed on any Schedule hereto or in any instrument or document delivered in connection with or pursuant to any of the foregoing. All such representations, warranties, covenants and agreements Agreement shall survive the execution and delivery of this Agreement and the Closing hereunder for a period of two twelve (212) years after months following the Closing Date; provided, however that (a) the representations and warranties of Seller contained in Section 4.12 (Intellectual Property) shall survive the Closing for a period of twenty-four (24) months following the Closing Date, except that and (ab) any representation, warranty, covenant or agreement (i) the representations and warranties of Xxxxxx contained in Section 3.01 (Organization; Standing), Section 3.02 (Corporate Authorization; Noncontravention) and Section 3.04 (Brokers and Other Advisors), (ii) the Fundamental Representations, and (iii) the representations and warranties of Purchaser contained in Section 5.01 (Organization; Standing), Sections 3.1 5.02(a) and 4.2 hereof (b) (Corporate Authorization) and Section 5.07 (Brokers and Other Advisors) shall survive the execution and delivery of this Agreement and the Closing hereunder without limitation, until thirty (b30) any representation, warranty, covenant or agreement related to Taxes shall survive the execution and delivery of this Agreement and the Closing hereunder until days after the expiration of the applicable statute of limitationslimitations (including any extensions thereof, (c) any non-compete agreement delivered pursuant hereto shall survive whether automatic or permissive). All covenants contained in this Agreement which are to be performed prior to the Closing until shall terminate on the Closing Date. The covenants contained in this Agreement which are to be performed at or after the Closing shall terminate thirty (30) days after the expiration of the duration applicable statute of such covenant not to competelimitations (including any extensions thereof, and (d) any whether automatic or permissive). Notwithstanding the foregoing, each representation, warranty, covenant or and agreement contained herein and any Liabilities of Seller in this Agreement shall survive the time at which it would otherwise expire pursuant to this Section 11.01 if, prior to such time, a Third Party Claim Notice or Direct Claim Notice with respect thereto relating to Medicare, Medicaid the breach shall have been timely delivered to the Party against whom such indemnity may be sought in accordance with Section 11.05. Any claim not asserted in accordance with this Article XI on or third party payors shall survive until prior to the later expiration of the third anniversary of the Closing Date or the conclusion of any audit or review commenced within such three-year periodapplicable survival period set forth in this Section 11.01 will be irrevocably and unconditionally released and waived.

Appears in 4 contracts

Samples: Triage Purchase Agreement (Alere Inc.), Triage Purchase Agreement (Quidel Corp /De/), Triage Purchase Agreement (Quidel Corp /De/)

Survival of Representations and Warranties. Notwithstanding any right All the representations and warranties of Buyer or Seller fully to investigate the affairs of Buyer or Seller, and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer contained in this Agreement, or listed or disclosed on any Schedule hereto or in any instrument or document delivered in connection with or pursuant to any of the foregoing. All such representations, warranties, covenants and agreements Agreement shall survive the execution Closing (even if the damaged Party knew or had reason to know of any misrepresentation or breach of warranty or covenant at the time of Closing) until the Expiration Date, other than (A) those contained in Section 3.2 (Due Authorization and delivery Enforceability), Section 3.5 (Title to Assets), Section 3.12 (Tax Matters), Section 3.22 (Employee Benefits), Section 3.32 (San Francisco Law School; Family Violence and Sexual Assault Institute) (“Seller Fundamental Reps”) and in Section 4.1 (Organization of this Agreement Buyer), Section 4.2 (Authorization of Transaction), Section 4.4 (Capitalization), Section 4.5 (Valid Issuance of Securities), Section 4.9 (Disqualification), and Section 4.10 (Brokers) (“Buyer Fundamental Reps”), which shall survive the Closing hereunder (even if the damaged Party knew or had reason to know of any misrepresentation or breach of warranty or covenant at the time of Closing) for a period of two eighteen (218) years months, and (B) fraud (including intentional misrepresentation but excluding negligent misrepresentation), as to which a claim may be made until the expiration of any applicable statutes of limitations (after giving effect to any extensions or waivers) plus 60 days. The post-closing covenants of the parties set forth in this Agreement shall survive the Closing until the expiration of any applicable statutes of limitations (after giving effect to any extensions or waivers) plus 60 days. All covenants and agreements made by any party that contemplate performance after the Closing Date, except that (a) any representation, warranty, covenant or agreement contained in Sections 3.1 and 4.2 hereof Date shall survive the execution and delivery of this Agreement and the Closing hereunder without limitationin accordance with their terms, (b) any representationor if no term is specified, warranty, covenant or agreement related to Taxes shall survive the execution and delivery of this Agreement and the Closing hereunder until the expiration of the applicable statute of limitations, (c) . All other covenants and agreements made by any non-compete agreement delivered pursuant hereto shall survive the Closing until the expiration of the duration of such covenant not to compete, and (d) any representation, warranty, covenant or agreement contained herein and any Liabilities of Seller with respect thereto relating to Medicare, Medicaid or third party payors in this Agreement shall survive until the later of the third anniversary of the Closing Date or the conclusion of any audit or review commenced within such three-year periodExpiration Date.

Appears in 3 contracts

Samples: Asset Purchase Agreement, Asset Purchase Agreement, Asset Purchase Agreement

Survival of Representations and Warranties. Notwithstanding any right of Buyer or Seller fully to investigate All representations and warranties that are covered by the affairs of Buyer or Seller, indemnification agreements in Section 7.1(a) and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer contained in this Agreement, or listed or disclosed on any Schedule hereto or in any instrument or document delivered in connection with or pursuant to any of the foregoing. All such representations, warranties, covenants and agreements Section 7.2(a) shall (a) survive the execution Closing and delivery of this Agreement and (b) shall expire on the Closing hereunder for a period of two date that is eighteen (218) years after months following the Closing Date, except that (ai) the representations and warranties set forth in Sections 2.1, 2.2, 2.3, 3.1 and 3.2 shall survive the Closing without limitation and (ii) the representations and warranties set forth in Sections 2.9, 2.20 and 2.21 shall survive until 30 days following expiration of all statutes of limitation applicable to the matters referred to therein. If an Indemnified Party delivers to an Indemnifying Party, before expiration of a representation or warranty, either a Claim Notice based upon a breach of such representation or warranty, or an Expected Claim Notice based upon a breach of such representation or warranty, then the applicable representation or warranty shall survive until, but only for purposes of, the resolution of the matter covered by such notice. If the legal proceeding or written claim with respect to which an Expected Claim Notice has been given is definitively withdrawn or resolved in favor of the Indemnified Party, the Indemnified Party shall promptly so notify the Indemnifying Party; and if the Indemnified Party has delivered a copy of the Expected Claim Notice to the Escrow Agent and Escrow Funds have been retained in escrow after the Termination Date (as defined in the Escrow Agreement) with respect to such Expected Claim Notice, the Indemnifying Party and the Indemnified Party shall promptly deliver to the Escrow Agent a written notice executed by both parties instructing the Escrow Agent to disburse such retained Escrow Fund in accordance with such withdrawal or resolution and the terms of the Escrow Agreement. The rights to indemnification set forth in this Article VII shall not be affected by (i) any investigation conducted by or on behalf of an Indemnified Party or any knowledge acquired (or capable of being acquired) by an Indemnified Party, whether before or after the date of this Agreement or the Closing Date (including through supplemental information provided pursuant to by Section 4.6), with respect to the inaccuracy or noncompliance with any representation, warranty, covenant or agreement contained in Sections 3.1 and 4.2 hereof shall survive obligation which is the execution and delivery subject of this Agreement and the Closing indemnification hereunder without limitation, or (bii) any representation, warranty, covenant or agreement related to Taxes shall survive the execution and delivery waiver by an Indemnified Party of this Agreement and the Closing hereunder until the expiration of the applicable statute of limitations, (c) any non-compete agreement delivered pursuant hereto shall survive the Closing until the expiration of the duration of such covenant not to compete, and (d) any representation, warranty, covenant or agreement contained herein and any Liabilities of Seller with respect thereto closing condition relating to Medicare, Medicaid or third party payors shall survive until the later accuracy of the third anniversary of the Closing Date any representations and warranties or the conclusion performance of any audit or review commenced within such three-year periodcompliance with agreements and covenants.

Appears in 3 contracts

Samples: Asset Purchase Agreement (World Energy Solutions, Inc.), Agreement and Plan of Merger (Suncrest Global Energy Corp), Asset Purchase Agreement (Suncrest Global Energy Corp)

Survival of Representations and Warranties. Notwithstanding any right All representations and warranties of Buyer or Seller fully to investigate the affairs of Buyer or Seller, and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer parties contained in this Agreement, or listed or disclosed on any Schedule hereto or in any instrument or document delivered in connection with or pursuant to any of the foregoing. All such representations, warranties, covenants and agreements Agreement shall survive the execution and delivery of this Agreement and the Closing hereunder and continue in full force and effect thereafter, regardless of any investigation made or to be made by or on behalf of any party hereto, for a period of two fifteen (215) years after months following the Closing Date, except that for the representations and warranties (a) any representation, warranty, covenant or agreement contained of Seller and Elecsys provided for (i) in Sections 3.1 3.13, 3.14.3 and 4.2 hereof 3.15.5, which shall survive the execution and delivery of this Agreement and the Closing hereunder without limitationand continue in full force and effect thereafter, regardless of any investigation made or to be made by or on behalf of any party hereto, for a period ending sixty (b60) any representation, warranty, covenant or agreement related to Taxes shall survive the execution and delivery of this Agreement and the Closing hereunder until days after the expiration of the applicable statute relevant statutes of limitations, including with respect to representations and warranties regarding Taxes, any extension or waiver thereof regarding the filing of Tax Returns and the payment of Taxes, and (cii) any non-compete agreement delivered pursuant hereto in Sections 3.1, 3.2, 3.3.1, 3.6.2 and 3.20, which shall survive the Closing until the expiration hereunder and continue in full force and effect thereafter, regardless of the duration any investigation made or to be made by or on behalf of such covenant not to competeany party hereto, without end or termination, and (db) of Buyer provided for in Sections 4.1, 4.2.1 and 4.5, which shall survive the Closing hereunder and continue in full force and effect thereafter, regardless of any representationinvestigation made or to be made by or on behalf of any party hereto, warrantywithout end or termination. Except as set forth in this Section 8.8, covenant or agreement contained herein and any Liabilities after the end of Seller such period, an Indemnitor's obligation to an Indemnitee under this Article VIII with respect thereto relating to Medicaresuch representations and warranties shall expire except with respect to a matter set forth in a Claim Notice theretofore delivered by an Indemnitee. It is further agreed that each Buyer Indemnitee's rights to indemnification set forth in Subsections 8.1.1, Medicaid or third party payors 8.1.2(b), 8.1.3 and 8.1.4, and each Seller Indemnitee's rights to indemnification set forth in Subsections 8.2.1 and 8.2.2(b), shall survive until the later of the third anniversary of the Closing Date or the conclusion of any audit or review commenced within such three-year periodremain in full force and effect indefinitely.

Appears in 3 contracts

Samples: Asset Purchase Agreement (Elecsys Corp), Asset Purchase Agreement (Elecsys Corp), Asset Purchase Agreement (Elecsys Corp)

Survival of Representations and Warranties. Notwithstanding any right Subject to the provisions of Buyer or Seller fully to investigate Section 7.3 below, (x) all representations and warranties of the affairs of Buyer or SellerCompany, and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of SellerIBF, the Stockholder Selling Parties (including IBF) and Buyer Purchaser contained in this Agreementherein (including, or listed or disclosed on any Schedule hereto without limitation, the Series B Representations) or in any document, certificate or other instrument or document required to be delivered hereunder in connection with the transactions contemplated hereby and (y) all Purchaser Claims relating to any breach or nonfulfillment by Seller or the Selling Parties, or any noncompliance by Seller or the Selling Parties with, any covenant, agreement or obligation contained herein or in any certificate or other document delivered pursuant to any of the foregoing. All such representations, warranties, covenants and agreements shall survive the execution and delivery of this Agreement and or relating to the Closing hereunder for a period of two (2) years after the Closing DateDissenter Claims, except that (a) any representation, warranty, covenant or agreement contained in Sections 3.1 and 4.2 hereof shall survive the execution and delivery of this Agreement and the Closing hereunder without limitation, (b) any representation, warranty, covenant or agreement related to Taxes shall survive the execution and delivery of this Agreement and the Closing hereunder until the expiration of the applicable statute of limitations, (c) any non-compete agreement delivered pursuant hereto shall survive the Closing until for the expiration of period ending on the duration of such covenant not to compete, and first Business Day following the twelve (d12) any representation, warranty, covenant or agreement contained herein and any Liabilities of Seller with respect thereto relating to Medicare, Medicaid or third party payors shall survive until the later of the third month anniversary of the Closing Date (the "Survival Date"); provided, however, that (i) the representations and warranties of the Company and the Selling Parties relating to the Reserved Claims shall not expire and shall survive the Survival Date until such Reserved Claim is finally determined and, if applicable, paid, and (ii) any covenant, agreement or obligation of Seller or the conclusion Selling Parties which contemplates performance subsequent to the Survival Date shall survive such Survival Date. No claim for indemnification for breach of any audit a representation, warranty, covenant, agreement or review obligation may be commenced within after the period of survival of such three-year periodrepresentation, warranty, covenant, agreement or obligation.

Appears in 3 contracts

Samples: Acquisition Agreement and Plan of Merger (Sunset Brands Inc), Acquisition Agreement and Plan of Merger (Ibf Vi Guaranteed Income Fund), Acquisition Agreement and Plan of Merger (Sunset Brands Inc)

Survival of Representations and Warranties. Notwithstanding any right All of Buyer or Seller fully to investigate the affairs of Buyer or Seller, representations and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer contained warranties made in this Agreement, or listed or disclosed on any Schedule hereto or in any instrument or document delivered in connection with or pursuant to any of the foregoing. All such representations, warranties, covenants and agreements shall survive the execution and delivery of this Agreement and the Closing hereunder for a period of two twenty-four (224) years after months following the Closing Date (the “General Survival Date”), except that (a) any representationat which point such representations and warranties shall terminate and be of no further force and effect thereafter; provided, warrantythat, covenant or agreement the representations and warranties contained in Sections 3.1 Section 3.01 (Organization; Good Standing), Section 3.02 (Power and 4.2 hereof Authority), Section 3.03 (Title to, and Sufficiency of, the Purchased Assets), Section 3.07 (Intellectual Property and Privacy), Section 3.18 (Brokers’ Fees), Section 4.01 (Organization; Good Standing), Section 4.02 (Power and Authority), and Section 4.04 (Brokers’ Fees) (collectively, the “Fundamental Representations”) shall survive until the execution and delivery of this Agreement and the Closing hereunder without limitation, date that is sixty (b60) any representation, warranty, covenant or agreement related to Taxes shall survive the execution and delivery of this Agreement and the Closing hereunder until days following the expiration of the applicable statute of limitations, (c) any non-compete agreement delivered pursuant hereto . All covenants and agreements of the Parties contained herein shall survive the Closing until indefinitely or for the expiration period explicitly specified therein. Notwithstanding the foregoing, any claims based upon, arising out of, or in connection with, fraud shall survive indefinitely. In addition, notwithstanding the foregoing, any representation or warranty in respect of which indemnity may be sought under this Agreement will survive the time at which it would otherwise terminate pursuant to the immediately preceding sentences if written notice of the duration inaccuracy or breach thereof, giving rise to such right of indemnification, has been given to the Party, against whom such covenant not indemnification may be sought, prior to compete, such time and (d) any representation, warranty, covenant or agreement contained herein such representations and any Liabilities of Seller with respect thereto relating to Medicare, Medicaid or third party payors warranties shall survive until the later of the third anniversary of the Closing Date or the conclusion of any audit or review commenced within such three-year periodclaim for indemnification is finally adjudicated and resolved.

Appears in 2 contracts

Samples: Asset Purchase Agreement (Winc, Inc.), Asset Purchase Agreement (Winc, Inc.)

Survival of Representations and Warranties. Notwithstanding any right If the Share Purchase is consummated, the representations and warranties of Buyer or Seller fully to investigate the affairs of Buyer or Seller, and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer Company and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer contained in this Agreement, or listed or disclosed on any Schedule hereto or in any instrument or document delivered in connection with or pursuant to any of the foregoing. All such representations, warranties, covenants and agreements shall survive the execution and delivery of this Agreement and the other agreements, certificates and documents contemplated hereby shall survive the Closing hereunder and remain in full force and effect, regardless of any investigation made, disclosure received, or knowledge obtained, by or on behalf of any of the parties to this Agreement, for a period of two (2) years after 24 months following the Closing Date, except that for the representation and warranties set forth in Section 3.8 (aIntellectual Property) any representation, warranty, covenant or agreement contained in Sections 3.1 and 4.2 hereof shall survive the execution and delivery of this Agreement and the Closing hereunder without limitation, (b) any representation, warranty, covenant or agreement related to Taxes shall survive the execution and delivery of this Agreement and the Closing hereunder until the expiration of the applicable statute of limitations, (c) any non-compete agreement delivered pursuant hereto which shall survive the Closing for a period of 36 months following the Closing Date, and except for the representation and warranties set forth in Section 3.1 (Organization and Good Standing), Section 3.2 (Subsidiaries), Section 3.3 (Power, Authorization and Validity), Section 3.4 (Capitalization of the Company), Section 3.5 (No Conflict), Section 3.6 (Taxes), Section 3.10 (Organization; Power and Capacity), Section 3.11 (Enforceability; Noncontravention), Section 3.12 (Title to Shares), Section 3.13 (Litigation), and Section 3.14 (Solvency) (“Fundamental Representation(s)”), which shall survive the Closing and continue in full force and effect until the expiration end of the duration statute of limitations under Israeli Law following the Closing Date. The parties hereby agree that this Article shall constitute a separate agreement for the requirements of Section 19 of the Israeli Statue of Limitation, 1958; Notwithstanding the foregoing, such covenant expiration shall not affect the rights of any Acquiror Indemnified Person under Article 11 or otherwise to competeseek recovery of Damages arising out of any fraud, intentional misrepresentation or willful misconduct by or on behalf of the Seller and/or the Company. Any claims under this Agreement with respect to a breach of a representation and warranty must be asserted by written notice within the applicable survival period contemplated by this Section 11.4, and (d) any representationif such a notice is given, warrantythe survival period for such representation and warranty shall continue until the claim is fully resolved provided however, covenant that in the event such written notice is not followed by a legal suit, within a period of 45 days following the end of the applicable survival period, then the applicable representation or agreement contained herein warranty in respect of which indemnity is sought under this Article 11, and any Liabilities of Seller the indemnity with respect thereto relating to Medicarethereto, Medicaid or third party payors shall survive until expire in accordance with the later of the third anniversary of the Closing Date or the conclusion of any audit or review commenced within such three-year periodapplicable survival period set forth under this Section 11.4.

Appears in 2 contracts

Samples: Share Purchase Agreement (ParaZero Technologies Ltd.), Share Purchase Agreement (Medigus Ltd.)

Survival of Representations and Warranties. Notwithstanding any right The representations and warranties of Buyer or the Seller fully to investigate contained in Section 4.1 and in the affairs of Buyer or Seller, and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller certificate delivered pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer contained in this Agreement, or listed or disclosed on any Schedule hereto or in any instrument or document delivered in connection with or pursuant to any of the foregoing. All such representations, warranties, covenants and agreements Section 3.2(g) shall survive the execution Closing and delivery of this Agreement and shall terminate eighteen (18) months after the Closing hereunder Date, except that the representations and warranties contained in (i) Section 4.1(i) (Taxes) shall survive until thirty (30) days after expiration of the statute of limitations governing the matters set forth therein (including any extensions thereof), (ii) Sections 4.1(a) (Organization, Authority), (b) (Ownership of Shares) and (e) (Capital Structure) shall survive for a period of two ten (210) years after the Closing Date, except that and (aiii) Section 4.1(u) (Environmental Matters), shall survive for five (5) years after the Closing Date. So long as an Indemnified Party (acting in good faith) delivers an Indemnification Claim Notice alleging in reasonable detail an inaccuracy in or breach of any representationof the representations and warranties of the Indemnifying Party and asserting a claim for recovery under Sections 7.1(a)(i), warranty(ii) or (viii) or Sections 7.2(a) or (c), covenant as the case may be, based on such alleged inaccuracy or agreement breach, then the claim asserted in such Indemnification Claim Notice shall survive the end of the applicable survival period until such time as such claim is fully and finally resolved. Only the representations and warranties of the Buyer contained in Sections 3.1 and 4.2 hereof shall survive the execution and delivery of this Agreement and the Closing hereunder without limitation, (b) any representation, warranty, covenant or agreement related to Taxes shall survive the execution and delivery of this Agreement and the Closing hereunder until the expiration of the applicable statute of limitations4.2(a), (c) any non-compete agreement delivered pursuant hereto and (h) shall survive the Closing until the expiration (and solely for purposes of the duration of Article VII) and such covenant not to compete, representations and warranties shall terminate eighteen (d18) any representation, warranty, covenant or agreement contained herein and any Liabilities of Seller with respect thereto relating to Medicare, Medicaid or third party payors shall survive until the later of the third anniversary of months after the Closing Date Date. The limitations set forth in this Section 8.4 shall not apply to the extent claims are based upon intentional misrepresentation or the conclusion fraud or on a provision of any audit or review commenced within such three-year periodthis Agreement that is not expressly limited by this Section 8.4.

Appears in 2 contracts

Samples: Stock Purchase Agreement (Caliper Technologies Corp), Stock Purchase Agreement (Caliper Technologies Corp)

Survival of Representations and Warranties. Notwithstanding any right Subject to the limitations and other provisions herein, (i) the representations and warranties of Buyer or Seller fully to investigate the affairs of Buyer or Seller, and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer parties contained in this Agreement, or listed or disclosed on any Schedule hereto or in any instrument or document delivered in connection with or pursuant to any of the foregoing. All such representations, warranties, covenants and agreements Agreement shall survive the execution Closing and delivery of this Agreement shall remain in full force and the Closing hereunder effect for a period of two eighteen (218) years after months following the Closing Date; provided, except however, that the representations and warranties (a) any representation, warranty, covenant or agreement contained of each Seller set forth in Sections 3.1 6.1 (Organization), 6.2 (Authorization), 6.4 (Ownership), and 4.2 hereof 6.6 (Financial Advisors) shall survive the execution and delivery of this Agreement and the Closing hereunder without limitationindefinitely, (b) any representationof the Company set forth (i) in Sections 5.1 (Organization), warranty5.2 (Authorization), covenant or agreement related to Taxes 5.4 (Capitalization), 5.5 (Subsidiaries) and 5.23 (Financial Advisors) shall survive the execution and delivery of this Agreement and Closing indefinitely, (ii) 5.9 (Taxes) shall survive the Closing hereunder until for a period of ninety (90) days following the expiration of the applicable statute statutes of limitationslimitation and (iii) 5.18 (Environmental Matters) shall survive the Closing for a period of five years following the Closing Date, and (c) of Purchaser set forth in Sections 7.1 (Organization), 7.2 (Authorization), 7.6 (Financial Advisors) and 7.8 (Conditions of the Business) shall survive the Closing indefinitely (in each case, the “Survival Period”); provided, however, that any non-compete agreement delivered pursuant obligations under Sections 10.2(a) and 10.3(a) shall not terminate with respect to any Losses as to which the Person to be indemnified shall have given notice (stating in reasonable detail the basis of the claim for indemnification and an estimate of the amount of Losses related thereto, if determinable) to the indemnifying party in accordance with Section 10.4 before the expiration of the applicable Survival Period, and (ii) the covenants and agreements of the parties hereto shall survive the Closing until for a period of eighteen (18) months following the expiration of the duration of Closing Date (unless this Agreement expressly 68 provides that such covenant not to compete, and (d) any representation, warranty, covenant or agreement contained herein and any Liabilities of Seller with respect thereto relating to Medicare, Medicaid or third party payors shall survive until the later of the third anniversary of the Closing Date or the conclusion of any audit or review commenced within for a longer period in which event it shall survive for such three-year longer period).

Appears in 2 contracts

Samples: Stock Purchase Agreement (United Components Inc), Stock Purchase Agreement (UCI Holdco, Inc.)

Survival of Representations and Warranties. Notwithstanding The representations and warranties of Harsimus set forth in Section 8.1, of Columbia set forth in Section 8.2, of Seller set forth in Section 8.3(a) and 8.3(r) and of Purchaser set forth in Section 8.4, shall survive the Closing indefinitely and shall not be subject to the Representation Basket (as hereinafter defined) and the Representation Cap (as hereinafter defined) set forth below. The representations and warranties of Seller set forth in Sections 8.3(b) through 8.3(q) will survive the Closing for a period of twelve (12) months, after which time they will merge into the LLC Assignment and Assumption. Purchaser will not have any right of Buyer to bring any action against Harsimus, Columbia, or Seller fully to investigate the affairs as a result of Buyer any untruth, inaccuracy or breach of any representations and warranties of Harsimus, Columbia, or Seller, as the case may be, unless and notwithstanding until the aggregate amount of all liability and losses arising out of all such untruths exceeds One Hundred Thousand and 00/100 Dollars ($100,000.00) (the “Representation Basket”); and then only to the extent of such excess. In addition, in no event will Seller’s liability for all such breaches exceed, in the aggregate, the sum of Ten Million 00/100 Dollars ($10,000,000.00) (the “Representation Cap”). Notwithstanding anything contained herein to the contrary, Harsimus shall be solely liable for a breach of the representations and warranties set forth in Section 8.1, Columbia shall be solely liable for a breach of the representations and warranties set forth in Section 8.2, and Seller shall be solely liable for a breach of its representations and warranties set forth in Section 8.3. None of Harsimus, Columbia or Seller shall have any liability with respect any representation, warranty and covenant herein which may have been made by any of them, respectively, if, prior to the Closing, Purchaser has actual knowledge of facts determined a breach of such representation, warranty or determinable covenant by Buyer or Seller pursuant to such investigation or right of investigation, Buyer party and Seller have Purchaser nevertheless consummates the right to rely fully upon the transaction contemplated by this Agreement. The Closing Surviving Obligations will survive Closing without limitation unless a specified period is otherwise provided in this Agreement. All other representations, warranties, covenants and agreements of Sellermade or undertaken by Harsimus, the Stockholder and Buyer contained in Columbia, or Seller under this Agreement, or listed or disclosed on any Schedule hereto or in any instrument or document delivered in connection with or pursuant to any of the foregoing. All such representationsunless otherwise specifically provided herein, warranties, covenants and agreements shall survive the execution and delivery of this Agreement and the Closing hereunder for a period of two (2) years after the Closing Date, except that (a) any representation, warranty, covenant or agreement contained in Sections 3.1 and 4.2 hereof shall survive the execution and delivery of this Agreement and the Closing hereunder without limitation, (b) any representation, warranty, covenant or agreement related to Taxes shall survive the execution and delivery of this Agreement and the Closing hereunder until the expiration of the applicable statute of limitations, (c) any non-compete agreement delivered pursuant hereto shall will not survive the Closing until Date but will be merged into the expiration of LLC Assignment and Assumption and other Closing documents delivered at the duration of such covenant not to compete, and (d) any representation, warranty, covenant or agreement contained herein and any Liabilities of Seller with respect thereto relating to Medicare, Medicaid or third party payors shall survive until the later of the third anniversary of the Closing Date or the conclusion of any audit or review commenced within such three-year periodClosing.

Appears in 2 contracts

Samples: Agreement of Sale and Purchase (Mack Cali Realty L P), Agreement of Sale and Purchase (Mack Cali Realty Corp)

Survival of Representations and Warranties. (a) All of the representations and warranties contained in ARTICLE III of this Agreement shall survive until eighteen (18) months after the Closing Date (the “Termination Date”), at which time liability therefor shall cease, except as provided in the last sentence of this Section 7.1. Notwithstanding any right of Buyer or Seller fully to investigate the affairs of Buyer or Seller, and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Sellerforegoing, the Stockholder representations and Buyer warranties contained in Section 3.1, Section 3.2, Section 3.3 and Section 3.4 shall survive indefinitely and the representations and warranties in Section 3.18 and Section 3.19 shall survive until the lapsing of the appropriate statute of limitations, at which time liability therefor shall cease. If at any time prior to the applicable Termination Date or expiration of the appropriate statue of limitations, as applicable, an Indemnified Party (as defined below) delivers to the Shareholders’ Agent (as defined below) a written notice alleging, in good faith, the existence of an inaccuracy in or breach of any the representations and warranties of the Company and the Company Shareholders (and setting forth in reasonable detail the basis for such Indemnified Party’s belief that such an inaccuracy or breach may exist) and asserting a claim for recovery under Section 7.2 based on such alleged inaccuracy or breach, then the representation or warranty underlying the claim asserted in such notice shall survive the applicable Termination Date or expiration of the appropriate statue of limitations, as applicable, solely for the purposes of resolving such claim and only until such time as such claim is fully and finally resolved. All of the covenants, agreements and obligations of the parties contained in this AgreementAgreement or any other document, certificate, schedule or listed instrument delivered or disclosed on any Schedule hereto or in any instrument or document delivered executed in connection with or pursuant to any of the foregoing. All such representations, warranties, covenants and agreements herewith shall survive (i) until fully performed or fulfilled, unless non-compliance with such covenants, agreements or obligations is waived in writing by the execution and delivery of this Agreement and the Closing hereunder for a period of two party or parties entitled to such performance or (2ii) years after the Closing Dateif not fully performed, except that (a) any representation, warranty, covenant or agreement contained in Sections 3.1 and 4.2 hereof shall survive the execution and delivery of this Agreement and the Closing hereunder without limitation, (b) any representation, warranty, covenant or agreement related to Taxes shall survive the execution and delivery of this Agreement and the Closing hereunder until the expiration of the applicable relevant statute of limitations, (c) any non-compete agreement delivered pursuant hereto shall survive the Closing until the expiration of the duration of such covenant not to compete, and (d) any representation, warranty, covenant or agreement contained herein and any Liabilities of Seller with respect thereto relating to Medicare, Medicaid or third party payors shall survive until the later of the third anniversary of the Closing Date or the conclusion of any audit or review commenced within such three-year period.

Appears in 2 contracts

Samples: Agreement and Plan of Merger (It&e International Group), Agreement and Plan of Merger (Lavin Philip T)

Survival of Representations and Warranties. Notwithstanding any right of Buyer or Seller fully to investigate the affairs of Buyer or SellerThe representations and warranties contained in Sections 3.1, 3.15, 3.17, and notwithstanding any knowledge 4.1 hereof shall survive the Closing and remain in full force and effect until the third anniversary of facts determined the Closing Date, at which time they shall terminate. The representations and warranties contained in Sections 3.18, 4.5 and 4.6 hereof shall survive the Closing and remain in full force and effect until the sixth anniversary of the Closing Date, at which time they shall terminate. The representations and warranties contained in Sections 3.7 (as to the fact of ownership (but not as to the presence of Liens or determinable by otherwise as to the quality of ownership) of the Assets) and 3.16 hereof shall survive the Closing and remain in full force and effect until the expiration of the applicable statutes of limitations, at which time they shall terminate. All other representations and warranties contained in this Agreement shall survive the Closing and remain in full force and effect until the date eighteen months from the Closing Date, at which time they shall terminate. All covenants and agreements contained herein shall survive the Closing for the same period of time as to which Seller is obligated to indemnify Buyer or Seller pursuant to such investigation or right (or, in the case of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Buyer, for the same period of time as to which Buyer is obligated to indemnify Seller, ) pursuant to Section 7.5 hereof. The state- ments set forth in the Stockholder Closing Certificates with respect to the representations and Buyer warranties and covenants and agreements contained in this Agreement, or listed or disclosed on any Schedule hereto or in any instrument or document delivered in connection with or pursuant to any of the foregoing. All such representations, warranties, covenants and agreements Agreement shall survive for the execution same length of time as the corresponding representation and delivery warranty or covenant and agreement, as the case may be. The sole remedy for any breach of this Agreement and the Closing hereunder for a period of two (2) years after the Closing Date, except that (a) any representation, warranty, covenant or agreement contained shall be pursuant to Section 7.5 hereof, except in the case of fraud or as otherwise provided in Sections 3.1 5.14 and 4.2 hereof shall survive the execution and delivery of this Agreement and the Closing hereunder without limitation, (b) any representation, warranty, covenant or agreement related to Taxes shall survive the execution and delivery of this Agreement and the Closing hereunder until the expiration of the applicable statute of limitations, (c) any non-compete agreement delivered pursuant hereto shall survive the Closing until the expiration of the duration of such covenant not to compete, and (d) any representation, warranty, covenant or agreement contained herein and any Liabilities of Seller with respect thereto relating to Medicare, Medicaid or third party payors shall survive until the later of the third anniversary of the Closing Date or the conclusion of any audit or review commenced within such three-year period9.9 hereof.

Appears in 2 contracts

Samples: Asset Purchase Agreement (Omniquip International Inc), Asset Purchase Agreement (Figgie International Inc /De/)

Survival of Representations and Warranties. Notwithstanding any right The representations and warranties of Buyer or Seller fully to investigate the affairs of Buyer or Seller, and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer contained in this Agreement, or listed or disclosed on any Schedule hereto or in any instrument or document delivered in connection with or pursuant to any of the foregoing. All such representations, warranties, covenants and agreements shall survive the execution and delivery of this Agreement and the covenants of Seller under Section 5.11 hereof shall survive the Closing hereunder for a the applicable period set forth in this Section 8.06, and any and all Claims and causes of two action for indemnification under this Article VIII arising out of the inaccuracy or breach of any representation or warranty of Seller or Purchaser must be made prior to the termination of the applicable survival period. All of the representations and warranties of Seller contained in this Agreement and any and all Claims and causes of action for indemnification under this Article VIII with respect thereto shall terminate eighteen (218) years after months following the Closing Date, except ; provided that (a) any representation, warranty, covenant or agreement the representations and warranties of Seller contained in Sections 3.1 2.01 (Ownership of Shares), 2.02 (Organization), 2.03 (Authority and 4.2 hereof Binding Effect), 3.01 (Organization), 3.02 (Capitalization), Section 3.03(a) (last sentence only) and 3.03(c) (Subsidiaries) shall survive the execution and delivery of this Agreement and the Closing hereunder without limitation, indefinitely; (b) any representation, warranty, covenant or agreement related the representations and warranties of Seller contained in Section 3.17 (solely with respect to Income Taxes and wage withholding and payroll Taxes) and Section 3.19 shall survive the execution and delivery of this Agreement and the Closing hereunder until 90 days following the expiration of the applicable statute or similar period of limitations, ; (c) any non-compete agreement delivered pursuant hereto the representations and warranties of Seller contained in Section 3.13 shall survive until three (3) years following the Closing until the expiration of the duration of such covenant not to compete, and Date; (d) any representation, warranty, covenant or agreement contained herein the representations and any Liabilities warranties of Seller contained in Section 3.10 (solely with respect thereto relating to Medicarehealth care Laws), Medicaid or third party payors Section 3.11 (solely with respect to health care Laws) and Section 3.22, to the extent any Claims under such sections arise out of matters occurring prior to May 15, 2002, shall survive until seventy-two (72) months from May 15, 2002; and (e) the later representations and warranties of Seller contained in Section 3.10 (solely with respect to health care Laws), Section 3.11 (solely with respect to health care Laws) and Section 3.22, to the third anniversary extent any Claims under such sections arise out of matters occurring after May 15, 2002, but prior to Closing, shall survive until three (3) years following the Closing Date or Date; it being understood that in the conclusion event an Indemnified Party delivers notice of any audit claim for indemnification under Section 8.01(a), Section 8.02(a), Section 8.03(a) or review commenced Section 8.03(b) within the applicable survival period and such three-year periodnotice describes such Claims with reasonable specificity, the representations and warranties that are the subject of such indemnification claim shall survive until such time as such claim is finally resolved. The covenants of Seller under Section 5.11 shall survive for the same survival period as the underlying representation and warranty. If the Closing occurs, Purchaser will have no liability pursuant to Section 8.03 unless on or before eighteen months after the Closing Date, Seller notifies Purchaser of a claim in accordance with Section 8.06 hereof.

Appears in 2 contracts

Samples: Stock Purchase Agreement (Laidlaw International Inc), Stock Purchase Agreement (Emergency Medical Services CORP)

Survival of Representations and Warranties. Notwithstanding any right All representations and warranties of Buyer or Seller fully to investigate the affairs of Buyer or Seller, and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer parties contained in this Agreement, or listed or disclosed on any Schedule hereto or in any instrument or document delivered in connection with or pursuant to any of the foregoing. All such representations, warranties, covenants and agreements Agreement shall survive the execution and delivery of this Agreement and the Closing hereunder and continue in full force and effect thereafter, regardless of any investigation made or to be made by or on behalf of any party hereto, for a period of two eighteen (218) months following the Closing Date, except for the representations and warranties of Seller provided for in (i) Section 3.2.16, which shall survive the Closing hereunder and continue in full force and effect thereafter, regardless of any investigation made or to be made by or on behalf of any party hereto, for a period ending ninety (90) days after the expiration of the relevant statutes of limitations including any extension or waiver thereof regarding the filing of Tax Returns and the payment of Taxes, and (ii) Sections 3.1.2, 3.1.6, 3.1.7, and 3.2.12, which shall survive the Closing hereunder and continue in full force and effect thereafter, regardless of any investigation made or to be made by or on behalf of any party hereto, without end or termination. Except as set forth in this Section 8.8, after the end of such period, an Indemnitor’s obligation to an Indemnitee under this Article VIII with respect to such representations and warranties shall expire except with respect to a matter set forth in a claim notice theretofore delivered by an Indemnitee. It is further agreed that each Purchaser Indemnitee’s rights to indemnification set forth in Sections 8.1(b), 8.1(c), 8.1(d) and 8.1(e) and Seller Indemnitee’s rights to indemnification set forth in Sections 8.2(b) and 8.2(c) shall remain in full force and effect until three (3) years after the Closing Date, except that (a) any representation, warranty, covenant or agreement contained in Sections 3.1 and 4.2 hereof shall survive the execution and delivery of this Agreement and the Closing hereunder without limitation, (b) any representation, warranty, covenant or agreement related to Taxes shall survive the execution and delivery of this Agreement and the Closing hereunder until the expiration of the applicable statute of limitations, (c) any non-compete agreement delivered pursuant hereto shall survive the Closing until the expiration of the duration of such covenant not to compete, and (d) any representation, warranty, covenant or agreement contained herein and any Liabilities of Seller with respect thereto relating to Medicare, Medicaid or third party payors shall survive until the later of the third anniversary of the Closing Date or the conclusion of any audit or review commenced within such three-year period.

Appears in 2 contracts

Samples: Purchase and Sale Agreement (Laidlaw Energy Group, Inc.), Purchase and Sale Agreement (Laidlaw Energy Group, Inc.)

Survival of Representations and Warranties. Notwithstanding any right of Buyer Unless otherwise specified in this Section 6.3 or Seller fully to investigate the affairs of Buyer or Seller, and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer contained elsewhere in this Agreement, or listed or disclosed on any Schedule hereto or in any instrument or document delivered in connection with or pursuant to any all provisions of the foregoing. All such representations, warranties, covenants and agreements this Agreement shall survive the execution and delivery of this Agreement Closing and the consummation of the transactions contemplated hereby and shall continue forever in full force and effect in accordance with their terms; provided that the representations and warranties of the Buyer set forth in Sections 3.6 and 3.7 and the covenants of the Buyer set forth in Section 4.8(b) (as they relate to such representations and warranties) shall terminate at, and shall not survive, the Closing. All representations and warranties (other than those set forth in Sections 2.2, 2.3, 2.9, 2.13 and 2.23) and all covenants and other agreements of the Company set forth in Article IV (other than those set forth in Sections 4.2, 4.13 and 4.14) shall expire on the date 18 months following the Closing hereunder Date, and the representations and warranties set forth in Sections 2.2, 2.3, 2.9, 2.13 and 2.23 and the covenants and other agreements of the Company set forth in Sections 4.2, 4.13 and 4.14 shall survive for a period of two 30 months following the Closing Date. If the Buyer delivers to the Representative, before expiration of a representation or warranty, either a Claim Notice based upon a breach of such representation or warranty, or an Expected Claim Notice based upon a breach of such representation or warranty, then the applicable representation or warranty shall survive until, but only for purposes of, the resolution of the matter covered by such notice. If the legal proceeding or written claim with respect to which a Claim Notice or an Expected Claim Notice has been given is definitively withdrawn or resolved in favor of the Buyer, the Buyer shall promptly so notify the Representative. The rights to indemnification set forth in this Article VI shall not be affected by (2i) years any investigation conducted by or on behalf of the Buyer or any actual or implied knowledge or notice acquired (or capable of being acquired) by the Buyer, whether before or after the date of this Agreement or the Closing Date, except that (a) with respect to the inaccuracy or noncompliance with any representation, warranty, covenant or agreement contained in Sections 3.1 and 4.2 hereof shall survive obligation which is the execution and delivery subject of this Agreement and the Closing hereunder without limitationindemnification hereunder, or (bii) any representation, warranty, covenant or agreement related to Taxes shall survive waiver by the execution and delivery Buyer of this Agreement and the Closing hereunder until the expiration of the applicable statute of limitations, (c) any non-compete agreement delivered pursuant hereto shall survive the Closing until the expiration of the duration of such covenant not to compete, and (d) any representation, warranty, covenant or agreement contained herein and any Liabilities of Seller with respect thereto closing condition relating to Medicare, Medicaid or third party payors shall survive until the later accuracy of the third anniversary of the Closing Date representations and warranties or the conclusion performance of any audit or review commenced within such three-year periodcompliance with agreements and covenants.

Appears in 2 contracts

Samples: Agreement and Plan of Merger (Akamai Technologies Inc), Agreement and Plan of Merger (Akamai Technologies Inc)

Survival of Representations and Warranties. Notwithstanding any right of Buyer or Seller fully to investigate the affairs of Buyer or Seller, The representations and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer warranties contained in this Agreement, or listed or disclosed on any Schedule hereto or in any instrument or document delivered in connection with or pursuant to any of the foregoing. All such representations, warranties, covenants and agreements shall survive the execution and delivery of this Agreement and the obligations of the parties pursuant to Sections 9.02(i), 9.02(v), 9.02(viii), 9.02(ix) and 9.03(a)(i) hereof shall survive the Closing hereunder and remain in full force and effect for a period of two (2) years after 15 months following the Closing DateDate (it being understood that, except subject to Sections 9.01(a), 9.01(b) and 9.01(c) hereof, and subject to the effect of any applicable statute of limitations, the obligations of the parties pursuant to the remaining provisions of Sections 9.02 and 9.03 hereof shall survive Closing indefinitely); provided, however, that (a) any representation, warranty, covenant or agreement the representations and warranties contained in Sections 3.1 3.20, 3.21 and 4.2 3.23 shall survive for the period provided in Section 7.08(c) (it being understood that the representations and warranties contained in Sections 3.20 and 3.21 shall survive for the period provided in Section 7.08(c) only to the extent of resulting Tax liabilities and otherwise shall remain in full force and effect for a period of 15 months following the Closing Date); (b) the representations and warranties contained in Section 3.14 and the obligations of the parties pursuant to Section 9.02(vii) hereof shall survive the execution Closing and delivery remain in full force and effect until the fourth anniversary of this Agreement and the Closing hereunder without limitation, Date; and (bc) any representation, warranty, covenant or agreement related the obligations of the parties pursuant to Taxes Section 9.02(x) shall survive the execution Closing and delivery of this Agreement remain in full force and effect until the Closing hereunder until 120th day following the expiration of the applicable statute of limitationslimitations with respect to the Loss or Liabilities in question (giving effect to any waiver, (c) any non-compete agreement delivered pursuant hereto shall survive the Closing until mitigation or extension thereof). If written notice of a claim has been given prior to the expiration of the duration of such covenant not applicable representations and warranties by the Purchaser to competeParent, or by Parent to the Purchaser, then the relevant representations and (d) any representation, warranty, covenant or agreement contained herein and any Liabilities of Seller with respect thereto relating to Medicare, Medicaid or third party payors warranties shall survive as to such claim, until the later of the third anniversary of the Closing Date or the conclusion of any audit or review commenced within such three-year periodclaim has been finally resolved.

Appears in 2 contracts

Samples: Asset and Stock Purchase Agreement (Amcol International Corp), Asset and Stock Purchase Agreement (Amcol International Corp)

Survival of Representations and Warranties. Notwithstanding any right The representations and warranties of Buyer or Seller fully to investigate the affairs of Buyer or Seller, and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer Parties contained in this Agreement, or listed or disclosed on any Schedule hereto or in any instrument or document delivered in connection with or pursuant to any of the foregoing. All such representations, warranties, covenants and agreements shall survive the execution and delivery of this Agreement and the Closing hereunder for a period of two (2) years after the Closing Date, except that (a) any representation, warranty, covenant or agreement contained in Sections 3.1 and 4.2 hereof shall survive the execution and delivery of this Agreement and the Closing hereunder without limitation, (b) any representation, warranty, covenant or agreement related to Taxes shall survive the execution and delivery of this Agreement and the Closing hereunder until the expiration of the applicable statute of limitations, (c) any non-compete agreement certificate delivered pursuant hereto shall survive the Closing until for fifteen (15) months following the Closing Date, except that the representations and warranties set forth in Section 3.01 (Existence); Section 3.02 (Validity of Agreement; Authorization); Section 3.03 (Consents and Approvals); Section 3.04(b) (No Breach); Section 3.05 (Ownership, Due Authorization and Transfer of Subject Interests); Section 3.07 (Financial Advisors), Section 4.01 (Formation; Due Qualification and Authority), Section 4.02 (Capitalization), Section 5.01 (Existence), Section 5.02 (Validity of Agreement; Authorization), Section 5.03 (Consents and Approvals), Section 5.04(a) and Section 5.04(b) (No Breach), and Section 5.07 (Financial Advisers) (collectively, the “Fundamental Representations”) and any Fundamental Representations in any certificate delivered pursuant hereto, shall survive the Closing three (3) years (the applicable period of survival of a representation, warranty or covenant being the “Survival Period”); provided that, notwithstanding the expiration of any Survival Period, any obligations under Section 8.02(a) and (b) shall not terminate with respect to any Losses as to which the duration Person to be indemnified shall have given notice to the Indemnifying Party in accordance with Section 8.03(a) before the termination of the applicable Survival Period. The Survival Period for all covenants contained in this Agreement that, by their terms, are to be performed at or prior to the Closing, shall be fifteen (15) months after the Closing, and all covenants contained in this Agreement that, by their terms, are to be performed after the Closing, shall survive the Closing until the performance of such covenant not to compete, and (d) any representation, warranty, covenant or agreement contained herein and any Liabilities of Seller covenants in accordance with respect thereto relating to Medicare, Medicaid or third party payors shall survive until the later of the third anniversary of the Closing Date or the conclusion of any audit or review commenced within such three-year periodtheir terms.

Appears in 2 contracts

Samples: Purchase Agreement (Global Infrastructure Investors II, LLC), Purchase Agreement (Williams Companies Inc)

Survival of Representations and Warranties. Notwithstanding any right All of Buyer or Seller fully the representations and warranties of the Sellers contained in Article IV and Sections 5.01(a), 6.01 and 6.02 and the representations and warranties contained in Section 6.09 (but only to investigate the affairs of Buyer or Seller, and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant extent that they relate to such investigation or right of investigation, Buyer and Seller have liabilities due to the right to rely fully upon the representations, warranties, covenants and agreements of SellerPBGC, the Stockholder and Buyer contained in this Agreement, U.S. Internal Revenue Service or listed or disclosed on any Schedule hereto or in any instrument or document delivered in connection with or pursuant to any the U.S. Department of the foregoing. All such representations, warranties, covenants and agreements shall survive the execution and delivery of this Agreement and the Closing hereunder for a period of two (2Labor) years after the Closing Date, except that (a) any representation, warranty, covenant or agreement contained in Sections 3.1 and 4.2 hereof shall survive the execution and delivery of this Agreement and the Closing hereunder without limitation, (b) any representation, warranty, covenant or agreement related to Taxes shall survive the execution and delivery of this Agreement and the Closing hereunder until the expiration of the applicable statute of limitations, (c) any non-compete agreement delivered pursuant hereto shall survive the Closing until the expiration and continue in full force and effect forever thereafter (subject to any applicable statutes of limitations). The representations and warranties of the duration Sellers contained in Section 6.08 and Section 6.09 (except to the extent that the survival of such covenant not to compete, representations and (dwarranties in Section 6.09 is governed by the first sentence of this Section 14.01) any representation, warranty, covenant or agreement contained herein and any Liabilities of Seller with respect thereto relating to Medicare, Medicaid or third party payors shall survive the Closing and continue in full force and effect until the later of the third anniversary of the Closing Date. The representations and warranties of the Sellers contained in Sections 6.05 and 6.16 shall survive the Closing and continue in full force and effect until the seventh anniversary of the Closing Date and the sixth anniversary of the Closing Date, respectively. Subject to Section 12.09, the representations and warranties of the Sellers contained in Section 6.08, to the extent that such representations and warranties relate to Income Taxes, Sales Taxes, and, with respect to the Limited Companies, Employment Taxes, shall not survive the Closing and, from and after the Closing, shall be of no further force or effect. All of the other representations and warranties of the Sellers contained in Article VI shall survive the Closing and continue in full force and effect until the second anniversary of the Closing Date. Notwithstanding the foregoing, if Purchaser sells a majority of the capital stock of any of the Limited Companies or APX-Brazil, or if Purchaser or any of the Limited Companies or APX-Brazil sells substantially all of its assets during any applicable survival period to any third party (other than any Affiliate of Purchaser), regardless of how such sale is structured (including any such sale structured as a merger, consolidation, reorganization, exchange, or issuance of capital stock), then all of the representations and warranties of the Sellers contained in Article VI, insofar as such representations and warranties relate to the entity or assets sold, shall expire on the earlier of (i) the date such representations and warranties would otherwise expire in accordance with the preceding sentences of this Section 14.01 or (ii) the third anniversary of the Closing Date, it being understood that if such sale or transaction takes place after the third anniversary of the Closing Date, such representations and warranties which have not theretofore expired shall expire immediately prior to the consummation of such sale or other transaction; provided that this sentence shall not apply to any claim (x) resulting from a breach of the representations and warranties of the Sellers contained in Sections 6.01, 6.02 and 6.09 (but, in the case of the representations and warranties contained in Section 6.09, only to the extent that they relate to liabilities due to the PBGC, the U.S. Internal Revenue Service or the conclusion U.S. Department of Labor) or (y) by a third party (other than a third party purchasing all or a portion of such stock or assets or any audit Affiliate of such third party) against any of the Indemnified Purchaser Parties, except to the extent such claim relates to or review commenced within arises from the offering or sale of such three-year periodstock or assets. All of the representations and warranties of Purchaser contained in Article VII shall survive the Closing and continue in full force and effect forever thereafter (subject to any applicable statutes of limitations). Notwithstanding the foregoing, any representation or warranty shall survive the time at which it would otherwise expire in accordance with this Section 14.01 to the extent that Purchaser or the Sellers, as the case may be, makes a written claim for indemnification for breach of that representation or warranty (setting forth in reasonable detail the factual and contractual bases upon which such Party is entitled to indemnification under this Agreement) prior to the time at which that representation or warranty would otherwise expire. Except as set forth in this Section 14.01 or in Article XVI, the provisions of this Agreement shall survive the Closing and shall continue indefinitely.

Appears in 2 contracts

Samples: Acquisition Agreement (MSX International Business Services Inc), Acquisition Agreement (Mascotech Inc)

Survival of Representations and Warranties. Notwithstanding any right The representations and warranties of Buyer or Seller fully to investigate the affairs of Buyer or Seller, and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer contained in this Agreement, or listed or disclosed on any Schedule hereto or in any instrument or document delivered in connection with or pursuant to any of the foregoing. All such representations, warranties, covenants and agreements shall survive the execution and delivery of this Agreement and the covenants of Seller under Section 5.09 hereof shall survive the Closing hereunder for a the applicable period set forth in this Section 8.05, and any and all Claims and causes of two action for indemnification under this Article VIII arising out of the inaccuracy or breach of any representation or warranty of Seller or Purchaser must be made prior to the termination of the applicable survival period. All of the representations and warranties of Seller contained in this Agreement and any and all Claims and causes of action for indemnification under this Article VIII with respect thereto shall terminate eighteen (218) years after months following the Closing Date, except ; provided that (a) any representation, warranty, covenant or agreement the representations and warranties of Seller contained in Sections 3.1 2.01 (Ownership of Shares), 2.02 (Organization), 2.03 (Authority and 4.2 hereof Binding Effect), 3.01 (Organization), 3.02 (Capitalization), Section 3.03(a) (last sentence only) and 3.03(c) (Subsidiaries) shall survive the execution and delivery of this Agreement and the Closing hereunder without limitation, indefinitely; (b) any representation, warranty, covenant or agreement related the representations and warranties of Seller contained in Section 3.17 (solely with respect to Income Taxes and wage withholding and payroll Taxes) and Section 3.19 shall survive the execution and delivery of this Agreement and the Closing hereunder until 90 days following the expiration of the applicable statute or similar period of limitations, ; (c) any non-compete agreement delivered pursuant hereto the representations and warranties of Seller contained in Section 3.13 shall survive until three (3) years following the Closing until the expiration of the duration of such covenant not to compete, and Date; (d) any representation, warranty, covenant or agreement contained herein the representations and any Liabilities warranties of Seller contained in Section 3.10 (solely with respect thereto relating to Medicarehealth care Laws), Medicaid or third party payors Section 3.11 (solely with respect to health care Laws) and Section 3.22, to the extent any Claims under such sections arise out of matters occurring prior to June 1, 2002, shall survive until seventy-two (72) months from June 1, 2002; and (e) the later representations and warranties of Seller contained in Section 3.10 (solely with respect to health care Laws), Section 3.11 (solely with respect to health care Laws) and Section 3.22, to the third anniversary extent any Claims under such sections arise out of matters occurring after June 1, 2002, but prior to Closing, shall survive until three (3) years following the Closing Date or Date; it being understood that in the conclusion event an Indemnified Party delivers notice of any audit claim for indemnification under Section 8.01(a), Section 8.02(a), Section 8.03(a) or review commenced Section 8.03(b) within the applicable survival period and such three-year periodnotice describes such Claims with reasonable specificity, the representations and warranties that are the subject of such indemnification claim shall survive until such time as such claim is finally resolved. The covenants of Seller under Section 5.09 shall survive for the same survival period as the underlying representation and warranty. If the Closing occurs, Purchaser will have no liability pursuant to Section 8.03 unless on or before eighteen months after the Closing Date, Seller notifies Purchaser of a claim in accordance with Section 8.05 hereof.

Appears in 2 contracts

Samples: Stock Purchase Agreement (Laidlaw International Inc), Stock Purchase Agreement (Emergency Medical Services CORP)

Survival of Representations and Warranties. Notwithstanding any right of Buyer or Seller fully to investigate the affairs of Buyer or Seller, and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the All representations, warranties, covenants and agreements of Sellermade by Company in or pursuant to this Agreement or in any writing, the Stockholder and Buyer contained certificate, schedule, exhibit, statement, list, report, instrument, or other document furnished or delivered to Lincare in connection with, or in contemplation of, this Agreement, or listed or disclosed on any Schedule hereto or in any instrument or document delivered in connection with or pursuant to any the purchase and sale of the foregoing. All Assets shall be true and correct as of the date of this Agreement and as of the Closing Date as if made at and as of such representationsdate, warrantiesexcept with respect to representations and warranties which speak as to an earlier date which shall be at and as of such date, covenants and agreements shall survive the execution execution, delivery and delivery performance of this Agreement and the Closing hereunder Closing; provided, however, that the representations and warranties contained in Sections 4.1, 4.2, 4.3, 4.5 (a)-(f), (i), and (k)-(m), 4.6, 4.9, 4.10 and 4.11 of this Agreement shall survive only for a period of two five (25) years after the Closing DateDate (the “Survival Period”), except that and the remaining representations and warranties (athe “Remaining Representations”) any representation, warranty, covenant or agreement contained in Sections 3.1 and 4.2 hereof shall survive the execution and delivery of this Agreement and the Closing hereunder without limitation, (b) any representation, warranty, covenant or agreement related to Taxes shall survive the execution and delivery of this Agreement and the Closing hereunder until the expiration of all applicable statutes of limitation, subject to any tolling thereof, provided that any matter as to which a claim has been asserted with respect to any such Remaining Representations by Lincare’s notice to Company that is pending or unresolved at the end of any applicable limitation period shall remain subject to Company’s representations, warranties to and indemnification of Lincare, notwithstanding any applicable statute of limitationslimitations (which the parties hereby waive solely with respect to any such pending or unresolved claim) until such claim is finally terminated or resolved by the parties or by a court of competent jurisdiction and any amounts payable hereunder in respect thereof are finally determined and paid. Notwithstanding the above, (c) any non-compete agreement delivered pursuant hereto in no event shall survive the Closing until the expiration of the duration of such covenant not any of the Remaining Representations of Company be limited for a shorter period of time than the Survival Period. The representations in Section 4.12 as they relate to compete, and (d) any representation, warranty, covenant or agreement contained herein and any Liabilities of Seller with respect thereto relating to Medicare, Medicaid or third party payors representations in other Sections shall survive until to the later of the third anniversary of the Closing Date or the conclusion of any audit or review commenced within extent set forth above for such three-year periodother Sections.

Appears in 2 contracts

Samples: Asset Purchase Agreement (Pediatric Services of America Inc), Asset Purchase Agreement (Pediatric Services of America Inc)

Survival of Representations and Warranties. Notwithstanding any right All representations and warranties of Buyer or Seller fully to investigate the affairs of Buyer or Seller, and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer parties hereto contained in this Agreement, or listed or disclosed on any Schedule hereto or in any instrument or document delivered in connection with or pursuant to any of the foregoing. All such representations, warranties, covenants and agreements Agreement (except as otherwise provided below) shall survive the execution Closing Date until twenty-one (21) months following the Closing Date and delivery expire on such date, but shall not survive any termination of this Agreement Agreement; provided, however, the representations and the Closing hereunder for a period of two (2) years after the Closing Date, except that (a) any representation, warranty, covenant or agreement contained warranties set forth in Sections 3.1 3.10, 3.11 (including those representations and 4.2 hereof warranties set forth in Section 3.21 to the extent that the same are treated as representations or warranties set forth in Section 3.11 pursuant to the last sentence of Section 3.21, Section 5.19(s), or Section 7.3(g)), 3.21(a), 3.21(d) and 3.21(e) shall survive the execution and delivery of this Agreement and the Closing hereunder without limitation, until sixty (b60) any representation, warranty, covenant or agreement related to Taxes shall survive the execution and delivery of this Agreement and the Closing hereunder until days after the expiration of the applicable statute of limitationslimitations including extensions thereof under the Applicable Law, (c) including ERISA and the Code, and the representations and warranties set forth in Sections 3.1(a), 3.2, 3.5, and 3.17 and, unless otherwise expressly provided in any non-compete agreement delivered pursuant hereto Included Agreement, all representations and warranties in such Included Agreements shall survive indefinitely; provided, further, however, that the Closing until the expiration of the duration of such covenant not to compete, representations and (dwarranties set forth in Section 3.6(b) any representation, warranty, covenant or agreement contained herein and any Liabilities of Seller with respect thereto relating to Medicare, Medicaid or third party payors hereof shall survive until the later of (A) the third anniversary date following agreement upon the Final Statement of Net Settlement pursuant to Section 2.9(d) hereof and (B) the date following delivery of the Third Party Account Report pursuant to Section 2.10(a) hereof, but, notwithstanding anything in this Agreement or any Ancillary Agreement to the contrary, following the expiration of the representations and warranties set forth in Section 3.6(b), no claim may be made for indemnification that could not have been made without the existence of the representations and warranties set forth in Section 3.6(b), and no such actual or alleged breach of the representations and warranties set forth in Section 3.6(b) after the expiration date thereof may be used to demonstrate or support the breach of any other representation or warranty contained in this Agreement, the Ancillary Agreements, or any other agreement, document or instrument to be delivered in connection with the transactions contemplated hereby and thereby; and provided, further, that if a claim for indemnification which has been timely and properly made pursuant hereto has not been finally resolved before the expiration of the applicable period referred to in this Section 7.2, such claim shall continue to survive until the final resolution thereof. The parties agree that, except as expressly provided in this Article VII, with respect to Sellers and Buyer, no claims or causes of action may be brought against any of the parties hereto, or any of their respective directors, officers, employees, Affiliates, successors, permitted assigns, advisors, agents, or representatives based upon any of the representations or warranties contained in this Agreement following the Closing Date or any termination of this Agreement. This Section 7.2 shall not limit (i) any covenant or agreement of the conclusion parties in this Agreement or any Ancillary Agreement to the extent that such covenant or agreement contemplates or requires performance after the Closing or any representation or warranty in any Ancillary Agreement or (ii) the parties’ indemnity obligations under Section 5.19, which shall survive for ninety (90) days after the expiration of all applicable statutes of limitation (giving effect to any audit waivers, mitigations or review commenced within such three-year periodextensions thereof), or (iii) Sections 7.3(a)(ii), (a)(iii), (b)(ii) and (b)(iii), which indemnity obligations shall survive indefinitely.

Appears in 2 contracts

Samples: Stock Purchase and Asset Transfer Agreement (Prudential Financial Inc), Stock Purchase and Asset Transfer Agreement (Cigna Corp)

Survival of Representations and Warranties. Notwithstanding any right All representations and warranties of Buyer or Seller fully to investigate the affairs of Buyer or Seller, and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer parties contained in Article II or III of this Agreement, or listed or disclosed on any Schedule hereto Agreement or in any instrument or document compliance certificate delivered in connection with or pursuant to any of the foregoing. All such representations, warranties, covenants and agreements Sections 6.2(a) or 6.3(a) shall survive the execution and delivery of this Agreement and the Closing hereunder for a period of two until fifteen (215) years months after the Closing Date; provided, except however, that (a) any representation, warranty, covenant or agreement the representations and warranties contained in Sections 3.1 and 4.2 hereof (i) Section 2.6 (Taxes) of this Agreement shall survive the execution and delivery of this Agreement and the Closing hereunder without limitation, until thirty (b30) any representation, warranty, covenant or agreement related to Taxes shall survive the execution and delivery of this Agreement and the Closing hereunder until days after the expiration of the applicable statute of limitationslimitations applicable to the matters covered thereby (giving effect to any waiver, mitigation or extension thereof), (cii) any non-compete agreement delivered pursuant hereto shall survive the Closing until the expiration Sections 2.10 (Employee Benefits Plans) and 2.12 (Environmental Matters) of the duration of such covenant not to compete, and (d) any representation, warranty, covenant or agreement contained herein and any Liabilities of Seller with respect thereto relating to Medicare, Medicaid or third party payors this Agreement shall survive until the later of the third anniversary of the Closing Date or Date, (iii) Section 2.7 (Intellectual Property) shall survive until the conclusion second anniversary of the Closing Date, and (iv) Sections 2.1(a) (Organization; Standing and Power), 2.1(c) (Subsidiaries), 2.2 (Capital Structure), 2.3(a) (Authority), 3.1(a) (Organization; Standing and Power) and 3.2(a) (Authority) shall survive the Closing indefinitely (the “Indefinitely Surviving Representations”). The termination of representations and warranties provided herein shall not affect the rights of any audit Indemnified Party in respect of any claim made by such indemnified party in a Claim Notice received by the other party pursuant to and in compliance with the provisions of this Article VII prior to the expiration date specified above. All covenants and agreements that by their terms are to performed after the Closing shall expire upon the completion of performance or review commenced within such three-year periodwaiver thereof.

Appears in 2 contracts

Samples: Stock Purchase Agreement (Science Applications International Corp), Stock Purchase Agreement (Science Applications International Corp)

Survival of Representations and Warranties. Notwithstanding any right The representations and warranties (other than the Fundamental Representations (as defined below)) of Buyer or Seller fully to investigate the affairs parties hereto contained in this Agreement shall survive the Closing for a period of Buyer or eighteen (18) months from the Closing Date; provided, however, that representations and warranties set forth in (a) Section 3.01 (Organization, Authority and Qualification of Seller), (b) Section 3.02 (Organization, Authority and Qualification of the Companies), (c) Section 3.03 (Capitalization; Ownership of Shares), (d) Section 7.01 (Tax Representations), (e) Section 4.01 (Organization, Authority and Qualification of Parent and Purchaser), (f) Section 4.02 (Organization, Authority and Qualification of the Parent Subsidiaries), (g) Section 4.09 (Preferred Stock), and notwithstanding (h) Section 4.10 (Capitalization) (collectively, the “Fundamental Representations”; provided, that the representations and warranties set forth in Section 7.01 (Tax Representations) shall be considered Fundamental Representations only for purposes of this Article IX, and not for purposes of Article VIII) shall survive the Closing until six (6) years from the Closing Date; provided, however, that any knowledge claim made in writing (specifying the nature of facts determined or determinable the claim and the underlying basis for which indemnification is sought) by Buyer or Seller pursuant the party seeking to be indemnified thereunder within the time periods set forth in this Section 9.01 shall survive until such investigation or right of investigation, Buyer claim is finally and Seller have the right to rely fully upon the representations, warranties, resolved. The covenants and agreements of Seller, the Stockholder and Buyer contained parties in this Agreement, Agreement that by their terms are to be performed following the Closing shall survive the Closing and continue in effect in accordance with their terms until performed or listed or disclosed on any Schedule hereto or in any instrument or document delivered in connection with or pursuant the obligation to any of the foregoingso perform shall have expired. All such representations, warranties, The covenants and agreements of the parties contained herein that by their terms are to be performed at or prior to the Closing shall survive the execution and delivery of this Agreement and the Closing hereunder for a period of two until one (21) years after year from the Closing Date, except that (a. The indemnity obligations set forth in Section 9.02(c) any representation, warranty, covenant or agreement contained in Sections 3.1 and 4.2 hereof Section 9.02(d) shall survive the execution and delivery of this Agreement and the Closing hereunder without limitation, until sixty (b60) any representation, warranty, covenant or agreement related to Taxes shall survive the execution and delivery of this Agreement and the Closing hereunder until days after the expiration of the applicable statute of limitationslimitations period; provided, however, that any claim made in writing (cspecifying the nature of the claim and the underlying basis for which indemnification is sought) any non-compete agreement delivered pursuant hereto by the party seeking to be indemnified thereunder within the time period set forth in this Section 9.01 shall survive until such claim is finally and fully resolved. The indemnity obligations set forth in Section 9.02(e), Section 9.02(f), Section 9.02(g), and Section 9.02(h), shall survive the Closing until for a period of three (3) years from the expiration Closing Date; provided, however, that any claim made in writing (specifying the nature of the duration of such covenant not claim and the underlying basis for which indemnification is sought) by the party seeking to compete, and (d) any representation, warranty, covenant or agreement contained herein and any Liabilities of Seller with respect thereto relating to Medicare, Medicaid or third party payors be indemnified thereunder within the time period set forth in this Section 9.01 shall survive until the later of the third anniversary of the Closing Date or the conclusion of any audit or review commenced within such three-year periodclaim is finally and fully resolved.

Appears in 2 contracts

Samples: Registration Rights Agreement (Entercom Communications Corp), Stock Purchase Agreement (Entercom Communications Corp)

Survival of Representations and Warranties. Notwithstanding any right of Buyer or Seller fully to investigate All representations and warranties that are covered by the affairs of Buyer or Seller, indemnification agreements in Section 7.1(a) and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer contained in this Agreement, or listed or disclosed on any Schedule hereto or in any instrument or document delivered in connection with or pursuant to any of the foregoing. All such representations, warranties, covenants and agreements Section 7.2(a) shall (a) survive the execution Closing and delivery of this Agreement and (b) shall expire on the Closing hereunder for a period of two (2) years after date 15 months following the Closing Date, except that (ai) the representations and warranties set forth in Sections 2.1, 2.2, 2.3, 2.5, 3.1 and 3.2 shall survive the Closing without limitation, (ii) the representations and warranties set forth in Sections 2.9 and 2.18 shall survive until thirty (30) days following expiration of all statutes of limitation applicable to the matters referred to therein and (iii) the representations and warranties set forth in Section 2.17 shall survive until the earlier to occur of (A) thirty (30) days following expiration of all statutes of limitation applicable to the matters referred to therein and (B) five (5) years after the Closing Date. If an Indemnified Party delivers to an Indemnifying Party, before expiration of a representation or warranty, either a Claim Notice based upon a breach of such representation or warranty, or an Expected Claim Notice based upon a breach of such representation or warranty, then the applicable representation or warranty shall survive until, but only for purposes of, the resolution of the matter covered by such notice. If the legal proceeding or written claim with respect to which an Expected Claim Notice has been given is definitively withdrawn or resolved in favor of the Indemnified Party, the Indemnified Party shall promptly so notify the Indemnifying Party. Except for the disclosures contained in the Disclosure Schedule, the rights to indemnification set forth in this Article VII shall not be affected by (i) any investigation conducted by or on behalf of an Indemnified Party or any knowledge acquired (or capable of being acquired) by an Indemnified Party, whether before or after the date of this Agreement or the Closing Date (including through supplements to the Disclosure Schedule permitted by Section 4.5 other than as expressly set forth in Section 4.5), with respect to the inaccuracy or noncompliance with any representation, warranty, covenant or agreement contained in Sections 3.1 and 4.2 hereof shall survive obligation which is the execution and delivery subject of this Agreement and the Closing indemnification hereunder without limitation, or (bii) any representation, warranty, covenant or agreement related to Taxes shall survive the execution and delivery waiver by an Indemnified Party of this Agreement and the Closing hereunder until the expiration of the applicable statute of limitations, (c) any non-compete agreement delivered pursuant hereto shall survive the Closing until the expiration of the duration of such covenant not to compete, and (d) any representation, warranty, covenant or agreement contained herein and any Liabilities of Seller with respect thereto closing condition relating to Medicare, Medicaid or third party payors shall survive until the later accuracy of the third anniversary of the Closing Date any representations and warranties or the conclusion performance of any audit or review commenced within such three-year periodcompliance with agreements and covenants other than as expressly set forth in Section 4.5.

Appears in 2 contracts

Samples: Agreement and Plan of Merger (Lionbridge Technologies Inc /De/), Agreement and Plan of Merger (Bowne & Co Inc)

Survival of Representations and Warranties. Notwithstanding any right (a) The representations and warranties made by (i) Sprint in Sections 3.1 through 3.5, the first two sentences of Buyer or Seller fully Section 3.6(a) and Section 3.7 (but, in the case of Section 3.7, only to investigate the affairs extent that a change described in such Section relates to a Material Adverse Effect on Sprint and its Subsidiaries taken as a whole that existed on the Primary Closing Date, but arose after the later of Buyer or Seller(x) the date of the end of the quarter covered by the last Quarterly Report on Form 10-Q of Sprint filed prior to the Primary Closing Date and (y) the date of the end of the year covered by the last Annual Report on Form 10-K of Sprint filed prior to the Primary Closing Date) of this Agreement, and notwithstanding (ii) the Buyers in Sections 4.1 and 4.2 of this Agreement (the "Surviving Representations") will survive, solely with respect to any knowledge damages relating to each particular investment to be made at an Applicable Closing, until the earlier to occur of facts determined or determinable (x) 15 months after the date of the Applicable Closing and (y) 90 days after the publication of the results of the first full audit of the consolidated financial statements of Sprint and its Subsidiaries by Buyer or Seller pursuant Sprint's independent auditors following the Applicable Closing, such financial statements to such investigation or right include a balance sheet and statements of investigation, Buyer income and Seller cash flows as of a date following the Applicable Closing and to be prepared in accordance with GAAP applied on a consistent basis with the financial statements included in the SEC Documents. Sprint shall have the right to rely fully upon cause its independent auditors to conduct such an audit at any time after the representationsApplicable Closing. No action may be brought with respect to a breach of any Surviving Representation after such time unless, warranties, covenants and agreements of Sellerprior to such time, the Stockholder Party seeking to bring such an action has notified the other Parties of such claim, specifying in reasonable detail the nature of the loss suffered. The representations and Buyer contained warranties provided in Sections 3.10, 4.1(g) and 4.2(g) shall survive without limitation as to time. None of the other representations and warranties made by any party in this Agreement, Agreement or listed or disclosed on any Schedule hereto Amended Other Agreement or in any instrument certificate or document delivered in connection with pursuant hereto or pursuant thereto prior to any of or on the foregoing. All such representations, warranties, covenants and agreements Applicable Closing shall survive the execution Applicable Closing. None of the representations and delivery of warranties made by any Party in this Agreement and the Closing hereunder for a period of two (2) years after the Closing Date, except that (a) or any representation, warranty, covenant Amended Other Agreement or agreement contained in Sections 3.1 and 4.2 hereof shall survive the execution and delivery of this Agreement and the Closing hereunder without limitation, (b) any representation, warranty, covenant certificate or agreement related to Taxes shall survive the execution and delivery of this Agreement and the Closing hereunder until the expiration of the applicable statute of limitations, (c) any non-compete agreement document delivered pursuant hereto or thereto at the Secondary Closing or Greenshoe Closing shall survive such Secondary Closing or Greenshoe Closing, as the Closing until the expiration of the duration of case may be, provided that if any certificate or document delivered pursuant hereto, or any portion thereof, pertains to a Surviving Representation, such covenant not to competecertificate or document, and (d) any representationor such portion thereof, warranty, covenant or agreement contained herein and any Liabilities of Seller with respect thereto relating to Medicare, Medicaid or third party payors shall survive until the later of the third anniversary of the Closing Date or the conclusion of any audit or review commenced within such three-year periodSurviving Representation to which it pertains shall no longer survive as provided herein.

Appears in 2 contracts

Samples: Restructuring and Investment Agreement (Sprint Corp), Investment Agreement (Deutsche Telekom Ag)

Survival of Representations and Warranties. Notwithstanding any right The representations and warranties of Buyer or Seller fully to investigate the affairs of Buyer or Seller, and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer parties contained in this Agreement, or listed or disclosed on any Schedule hereto or in any instrument or document delivered in connection with or pursuant to any of the foregoing. All such representations, warranties, covenants Articles IV and agreements shall survive the execution and delivery V of this Agreement and the Closing hereunder for a period of two (2) years after the Closing Date, except that (a) any representation, warranty, covenant or agreement indemnification contained in Sections 3.1 Section 11.2(a) and 4.2 hereof shall survive the execution and delivery of this Agreement and the Closing hereunder without limitation, (b11.2(b) any representation, warranty, covenant or agreement related to Taxes shall survive the execution and delivery of this Agreement and the Closing hereunder until the expiration of the applicable statute of limitations, (c) any non-compete agreement delivered pursuant hereto shall survive the Closing until the expiration of the duration of such covenant not to compete, and (d) any representation, warranty, covenant or agreement contained herein and any Liabilities of Seller with respect thereto relating to Medicare, Medicaid or third party payors shall survive until the later of the third first anniversary of the Closing Date Date, other than (a) the indemnification obligations set forth in Section 11.2(a)(ii)(y) and Section 11.2(b)(ii)(y) with respect to the covenants set forth in Sections 6.4, 6.6, 6.9, 6.10, 6.12, 6.13(b) -(f), 6.15, 6.19, 6.20 and 6.24 which by their terms are not capable of performance prior to the first anniversary of the Closing Date, in which case the indemnification obligations shall, with respect to each such covenant required to be performed following the Closing Date, survive for 30 days following the expiration of such covenant in accordance with its terms and (b) the indemnification obligations set forth in Section 11.2(a)(iii), in which case the indemnification obligations shall survive until June 30, 2010 (the “Survival Period”); provided, however, that (x) any obligations to indemnify and hold harmless shall not terminate with respect to any Losses as to which the Person to be indemnified shall have given notice (stating in reasonable detail the basis of the claim for indemnification) to the indemnifying party in accordance with Section 11.10 before the termination of the Survival Period and (y) any obligations to indemnify and hold harmless pursuant to Section 11.2(a)(iii) shall not terminate with respect to any Losses, to the extent such Losses were actually incurred prior to the termination of the applicable Survival Period and, for the avoidance of doubt, there shall be no obligation to indemnify or hold harmless pursuant to 11.2(a)(iii) any Losses that were not actually incurred prior to the conclusion termination of any audit or review commenced within such three-year periodSurvival Period, without regard to whether notice was given prior to such termination.

Appears in 2 contracts

Samples: Note Purchase Agreement (Deerfield Triarc Capital Corp), Agreement and Plan of Merger (Triarc Companies Inc)

Survival of Representations and Warranties. Notwithstanding any right of Buyer or Seller fully to investigate The parties agree that the affairs of Buyer or Seller, ------------------------------------------ representations and notwithstanding any knowledge of facts determined or determinable warranties made by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer contained parties in this Agreement, or listed or disclosed on any Schedule hereto or in any certificate or other instrument or document delivered in connection with or pursuant to any of the foregoing. All such representationsthis Agreement, warranties, covenants and agreements shall survive the execution and delivery of this Agreement and the Closing hereunder for a period of two twelve (212) years after months from the Closing Merger Effective Date (which date is hereinafter called the "Expiration Date"), except that (ai) any representationthe representations and warranties contained in Section 6.21 hereof shall survive until such time as the limitations period has run for all tax periods ended prior to the Merger Effective Date, warrantywhich shall be deemed to be the Expiration Date for purposes of this clause (i), covenant or agreement (ii) the representations and warranties contained in Sections 3.1 6.26 and 4.2 6.27 hereof shall survive for a period of three years from the execution and delivery Merger Effective Date, which shall be deemed the Expiration Date for purposes of this Agreement and the Closing hereunder without limitationclause (ii), (biii) solely for purposes of Section 12.1(iii) hereof, and solely to the extent that USFloral actually incurs liability under the 1933 Act, the Exchange Act, or any other Federal or state securities laws, the representations and warranties set forth herein shall survive for a period of three years from the Merger Effective Date, which shall be deemed to be the Expiration Date for purposes of this clause (iii) and (iv) any representation, warranty, covenant or agreement related to Taxes representations and warranties which serve as a basis of the indemnity obligations of Stockholders under Section 12.2 shall survive the execution and delivery of this Agreement and the Closing hereunder until the expiration of the applicable statute of limitations, (c) any non-compete agreement delivered pursuant hereto shall survive the Closing until the expiration of the duration of such covenant not to compete, and (d) any representation, warranty, covenant or agreement contained herein and any Liabilities of Seller with respect thereto relating to Medicare, Medicaid or third party payors shall survive until the later of the third anniversary of the Closing Merger Effective Date or the conclusion of any audit or review commenced within such three-year periodwithout time limitation.

Appears in 2 contracts

Samples: Agreement and Plan of Contribution (U S a Floral Products Inc), Agreement and Plan of Contribution (U S a Floral Products Inc)

Survival of Representations and Warranties. Notwithstanding any right of Buyer The representations and warranties contained in or Seller fully to investigate the affairs of Buyer or Seller, and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller made pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer contained in this Agreement, the Related Documents or listed any certificate or disclosed on any Schedule hereto or in any instrument or document other writing delivered in connection with this Agreement or pursuant to any of the foregoing. All such representations, warranties, covenants and agreements Closing shall survive the execution and delivery of this Agreement and the Closing hereunder for a period of two (2) years after the Closing DateClosing, except that (a) any representation, warranty, covenant or agreement the representations and warranties contained in Sections 3.1 5.1, 5.2, 5.4 and 4.2 hereof 5.10 shall survive the execution remain in full force and delivery of this Agreement effect indefinitely and the Closing hereunder without limitationrepresentations and warranties dealing with Tax matters, (b) any representationMedicare, warrantyMedicaid and other third party payor payment Liabilities, covenant or agreement related to Taxes and environmental matters shall survive the execution remain in full force and delivery of this Agreement and the Closing hereunder effect until the expiration of the applicable statute of limitations, (c) any non-compete agreement delivered pursuant hereto . The covenants and other agreements of the parties contained in this Agreement shall survive the Closing Date until the expiration of the duration applicable statute of such limitations. This Article XI shall survive the Closing and shall remain in effect (a) with respect to Sections 11.2(a)(i) and 11.2(b)(i), so long as the relevant representations and warranties survive, (b) with respect to Sections 11.2(a)(ii) and 11.2(b)(ii), so long as the applicable covenant not to compete, survives and (dc) with respect to Sections 11.2(a)(iii) through (x) and Sections 11.2(b)(iii) and (b)(iv), indefinitely. If written notice of a Claim has been given prior to the expiration of the applicable limitation period and such Claim is pending and unresolved at the end of any representationapplicable limitation period, warranty, covenant such Claim shall continue to be covered by this Article XI notwithstanding any applicable limitation period (which the Parties hereby waive) until such matter is finally terminated or agreement contained herein otherwise resolved by the parties pursuant to Section 11.4 or by a court of competent jurisdiction and any Liabilities amounts payable hereunder are finally determined and paid. After the Closing, the rights set forth in this Agreement shall be each party’s sole and exclusive remedies against the other parties hereto for misrepresentations or breaches of Seller representations, warranties or covenants contained in this Agreement, the Related Documents and any certificate or other writing delivered in connection with this Agreement or the Closing, except with respect thereto relating to Medicare, Medicaid (i) actions based upon allegations of fraud or third party payors shall survive until other intentional misrepresentation or (ii) the later of the third anniversary of the Closing Date or the conclusion ability of any audit party to seek injunctive relief or review commenced within such three-year periodother appropriate remedies with respect to a breach of any covenants hereunder or thereunder.

Appears in 2 contracts

Samples: Asset Purchase Agreement by And (Sunrise Senior Living Inc), Facilities Purchase and Sale Agreement (Sunrise Senior Living Inc)

Survival of Representations and Warranties. Notwithstanding any right The respective representations and warranties of Buyer or Seller fully to investigate the affairs of Buyer or Seller, and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer parties contained in this Agreement, or listed or disclosed on any Schedule hereto or in any instrument or document delivered in connection with or pursuant to any and the rights and obligations of the foregoing. All parties under this Article VIII with respect to breaches of such representations, representations and warranties, covenants and agreements shall survive the execution and delivery of this Agreement and the Closing hereunder for a period of two (2) years after the Closing Dateyears, except that that: (a) any representation, warranty, covenant claims for indemnification with respect to any breaches of representations and warranties made on or agreement contained in Sections 3.1 and 4.2 hereof before such expiration date shall survive the execution and delivery of this Agreement and the Closing hereunder without limitation, until final resolution thereof; (b) the representations and warranties contained in Section 3.01 (Authority Relative to Agreement), Section 3.04 (Non-Contravention), Section 3.10 (Intellectual Property), Section 3.26 (No Broker), Section 3.27 (Sufficiency of Assets), Section 4.01 (Authority Relative to Agreement), Section 4.03 (Non-Contravention), and Section 4.09 (No Broker), and the rights and obligations of the parties under this Article VIII with respect to any representationbreaches of such representations and warranties, warranty, covenant or agreement related to Taxes shall survive the execution Closing for a period of three years; (c) the representations and delivery of this Agreement warranties contained in Section 3.12 (Employee Benefit Plans), Section 3.15 (Taxes) and Section 3.25 (Environmental Matters) shall survive the Closing hereunder until for a period ending on the ninetieth (90th) day after the expiration of the applicable statute of limitations, (c) and the rights and obligations of the parties under this Article VIII with respect to any non-compete agreement delivered pursuant hereto breaches of such representations and warranties shall survive the Closing until for a period ending at the same time and (d) the representations and warranties contained in Section 3.02 (Capitalization, Title to Shares), Section 3.03 (Execution and Performance of Agreement; Validity and Binding Nature), and Section 4.02 (Execution and Performance of Agreement; Validity and Binding Nature) shall survive the Closing indefinitely. No claims for indemnification for breaches of representations and warranties shall be made under Article VI or this Article VIII after the expiration of the duration applicable period of such covenant not to compete, survival. The rights and (d) any representation, warranty, covenant or agreement contained herein and any Liabilities obligations of Seller the parties under this Article VIII with respect thereto relating to Medicare, Medicaid or third party payors breaches of covenants shall survive until the later of the third anniversary of the Closing Date or the conclusion of any audit or review commenced within such three-year periodindefinitely.

Appears in 2 contracts

Samples: Stock Purchase Agreement (Bisys Group Inc), Stock Purchase Agreement (Open Solutions Inc)

Survival of Representations and Warranties. Notwithstanding any right The rights of Buyer or the Parties to indemnification under this Agreement with respect to the representations and warranties made hereunder shall survive the Closing (i) for a period of fifteen (15) months; provided, however (ii) that the rights of the applicable Parties to indemnification under this Agreement with respect to the representations and warranties in Sections 4.01, 4.02, 4.03, 4.04(i) and 4.17 (collectively, the “Non-Healthcare Fundamental Seller fully to investigate the affairs of Buyer or SellerRepresentations”), and notwithstanding any knowledge Sections 5.01, 5.02, 5.03(i), 5.05, 5.13, 5.17, 5.24 and 5.26 (collectively, the “Non-Healthcare Fundamental Buyer Representations”), shall survive the Closing for a period of facts determined six (6) years, and (iii) that the rights of the applicable Parties to indemnification under this Agreement with respect to the representations and warranties in Sections 4.10 and 4.11 (collectively, the “Healthcare Fundamental Seller Representations”) and Sections 5.07 and 5.08 (collectively, the “Healthcare Fundamental Buyer Representations”) shall survive the Closing for a period of six (6) years. None of the covenants or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have other agreements in contained in this Agreement shall survive the right to rely fully upon Closing other than the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer contained that by their terms apply or are to be performed in this Agreement, or listed or disclosed on any Schedule hereto whole or in any instrument or document delivered in connection with or pursuant to any of part after the foregoing. All such representationsClosing Date, warranties, which covenants and agreements shall survive until the execution earlier of (a) the period provided in such covenants and delivery of this Agreement agreements, if any, or until fully performed and (b) the Closing hereunder for a period of two date that is six (26) years after the Closing Date, except . Any claim for indemnification pursuant to this Section 12.01 that (a) any representation, warranty, covenant or agreement contained is made in Sections 3.1 and 4.2 hereof shall survive accordance with the execution and delivery of this Agreement and the Closing hereunder without limitation, (b) any representation, warranty, covenant or agreement related requirements set forth in Section 12.05 prior to Taxes shall survive the execution and delivery of this Agreement and the Closing hereunder until the expiration of the applicable statute of limitations, (c) any non-compete agreement delivered pursuant hereto shall survive the Closing until the expiration of the duration of such covenant not to compete, and (d) any representation, warranty, covenant or agreement contained herein and any Liabilities of Seller survival period set forth in this Section 12.01 with respect thereto relating to Medicaresuch claim shall survive, Medicaid or third party payors shall survive subject to the remaining limitations set forth in this Section 12.01, until the later of the third anniversary of the Closing Date or the conclusion of any audit or review commenced within such three-year periodclaim is finally resolved.

Appears in 2 contracts

Samples: Stock Purchase Agreement (General Electric Co), Stock Purchase Agreement (Neogenomics Inc)

Survival of Representations and Warranties. Notwithstanding any right The respective representations and warranties of Buyer or Seller fully to investigate the affairs of Buyer or Seller, and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer Purchaser contained in this Agreement, or listed or disclosed on any Schedule hereto or in any instrument or document delivered in connection with or pursuant to any of the foregoing. All such representations, warranties, covenants and agreements Agreement shall survive the execution and delivery of this Agreement and Closing until the Closing hereunder for a period of two date that is twelve (212) years after months from the Closing Date, except that (ai) the representations and warranties contained in Section 4.1 (Due Organization, Good Standing and Corporate Power), Section 4.2 (Authorization; Noncontravention), Section 4.14 (Finders; Brokers), Section 5.1 (Corporate Due Organization, Good Standing and Corporate Power of Purchaser), Section 5.2 (Authorization; Noncontravention) and Section 5.6 (Finders; Brokers) shall survive indefinitely and (ii) the representations and warranties contained in Section 4.8 (Tax Matters) and Section 4.12 (Environmental Matters) shall terminate as of the Closing. Each covenant and other agreement of Purchaser or Seller hereunder shall survive in accordance with its terms, except that (x) the covenants and agreements contained in Section 6.10(c), Section 8.2(d) and Section 8.3(d) shall terminate six (6) years from the end of the taxable year to which the relevant covenant or agreement relates and (y) the covenants and agreements contained in Section 8.2(j) shall terminate six (6) years after the Closing Date. No Person shall be liable for any claim for indemnification under this Article VIII unless a Claim Certificate (as defined below) is delivered by the Person seeking indemnification to the Person from whom indemnification is sought prior to the expiration of the applicable survival period, in which case the representation, warranty, covenant or agreement contained in Sections 3.1 and 4.2 hereof which is the subject of such claim shall survive survive, to the execution and delivery of this Agreement and the Closing hereunder without limitation, (b) any representation, warranty, covenant or agreement related to Taxes shall survive the execution and delivery of this Agreement and the Closing hereunder until the expiration extent of the applicable statute of limitationsclaims described in such Claim Certificate only, (c) any non-compete agreement delivered pursuant hereto shall survive until such claim is resolved, whether or not the Closing until the expiration amount of the duration of Losses resulting from such covenant not to compete, and (d) any representation, warranty, covenant or agreement contained herein and any Liabilities of Seller with respect thereto relating to Medicare, Medicaid or third party payors shall survive until breach has been finally determined at the later of time the third anniversary of the Closing Date or the conclusion of any audit or review commenced within such three-year periodnotice is given.

Appears in 2 contracts

Samples: Purchase and Sale Agreement (Buckeye Partners, L.P.), Purchase and Sale Agreement

Survival of Representations and Warranties. Notwithstanding any right of Buyer or Seller fully to investigate the affairs of Buyer or Seller, All representations and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer contained in this Agreement, or listed or disclosed on any Schedule hereto or in any instrument or document delivered in connection with or pursuant to any of the foregoing. All such representations, warranties, covenants and agreements warranties shall survive the execution Closing and delivery expire on the eighteen month anniversary of this Agreement and the Closing hereunder Date; provided, however, all representations and warranties of Sellers made pursuant to Section 4.10 (Taxes) and Section 4.22 (Environmental) shall survive the Closing for a period of two continuing until thirty (230) years after the Closing Date, except that (a) any representation, warranty, covenant or agreement contained in Sections 3.1 and 4.2 hereof shall survive the execution and delivery of this Agreement and the Closing hereunder without limitation, (b) any representation, warranty, covenant or agreement related to Taxes shall survive the execution and delivery of this Agreement and the Closing hereunder until days following the expiration of the applicable statute of limitations, as extended, and all representations and warranties of Sellers made pursuant to Sections 4.1 (cOrganization and Good Standing), 4.2 (Capitalization; Stock Ownership), 4.3 (Subsidiaries of MTC), 4.4 (Authority and Enforceability) any non-compete and 4.5 (No Conflicts; Authorizations) shall survive the Closing indefinitely. Each covenant, agreement delivered pursuant and obligation of the Parties hereto shall survive the Closing until and expire on the expiration of the duration of such covenant not to compete, and (d) any representation, warranty, covenant or agreement contained herein and any Liabilities of Seller with respect thereto relating to Medicare, Medicaid or third party payors shall survive until the later of the third first anniversary of the Closing Date date on which such covenant, agreement or obligation was to be performed, unless a different term is expressly specified. Any cause of action for breach of a representation or warranty, covenant, agreement or obligation contained herein shall expire and terminate, unless the conclusion Party claiming that such breach occurred delivers to the other Party written notice and a reasonably detailed explanation of the alleged breach on or before 5:00 P.M., Chicago time, on the date on which such representation or warranty, covenant, agreement or obligation expires pursuant to this Section 9.2. If any audit claim for indemnification or review commenced other recovery is timely asserted pursuant to this Section 9.2, the Indemnitee shall have the right to bring an Action with respect to such claim within one (1) year after first giving the Indemnifying Party notice thereof, but may not bring any such three-year periodAction thereafter.

Appears in 2 contracts

Samples: Stock Purchase Agreement (Baldwin Technology Co Inc), Stock Purchase Agreement (Baldwin Technology Co Inc)

Survival of Representations and Warranties. Notwithstanding any right The representations and warranties of Buyer or Seller fully to investigate the affairs of Buyer or Seller, and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer Parties contained in this Agreement, or listed or disclosed on any Schedule hereto or in any instrument or document delivered in connection with or pursuant to any of the foregoing. All such representations, warranties, covenants and agreements shall survive the execution and delivery of this Agreement and the Closing hereunder for a period of two (2) years after the Closing Date, except that (a) any representation, warranty, covenant or agreement contained in Sections 3.1 and 4.2 hereof shall survive the execution and delivery of this Agreement and the Closing hereunder without limitation, (b) any representation, warranty, covenant or agreement related to Taxes shall survive the execution and delivery of this Agreement and the Closing hereunder until the expiration of the applicable statute of limitations, (c) any non-compete agreement certificate delivered pursuant hereto shall survive the Closing until for fifteen (15) months following the Closing Date, except that the representations and warranties set forth in Section 3.01 (Existence); Section 3.02 (Validity of Agreement; Authorization); Section 3.03 (Consents and Approvals); Section 3.04(b)(i) (No Breach); Section 3.05 (Ownership, Due Authorization and Transfer of Subject Interests); Section 3.07 (Financial Advisors), Section 4.01 (Formation; Due Qualification and Authority), Section 4.02 (Power and Authority to Act), Section 4.03 (Capitalization), Section 4.04(a) (Enforceability of Operative Agreements), Section 5.01 (Existence), Section 5.02 (Validity of Agreement; Authorization), Section 5.03 (Consents and Approvals), Section 5.04(a) and Section 5.04(b) (No Breach), and Section 5.07 (Financial Advisers) (collectively, the “Fundamental Representations”) and any Fundamental Representations in any certificate delivered pursuant hereto, shall survive the Closing three (3) years (the applicable period of survival of a representation, warranty or covenant being the “Survival Period”); provided that, notwithstanding the expiration of any Survival Period, any obligations under Section 8.02(a) and (b) shall not terminate with respect to any Losses as to which the duration Person to be indemnified shall have given notice to the Indemnifying Party in accordance with Section 8.03(a) before the termination of the applicable Survival Period. The Survival Period for all covenants contained in this Agreement that, by their terms, are to be performed at or prior to the Closing, shall be fifteen (15) months after the Closing, and all covenants contained in this Agreement that, by their terms, are to be performed after the Closing, shall survive the Closing until the performance of such covenant not to compete, and (d) any representation, warranty, covenant or agreement contained herein and any Liabilities of Seller covenants in accordance with respect thereto relating to Medicare, Medicaid or third party payors shall survive until the later of the third anniversary of the Closing Date or the conclusion of any audit or review commenced within such three-year periodtheir terms.

Appears in 2 contracts

Samples: Purchase Agreement (Williams Companies Inc), Purchase Agreement (Williams Companies Inc)

Survival of Representations and Warranties. Notwithstanding any right of Buyer or Seller fully to investigate the affairs of Buyer or Seller, and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the The representations, warranties, warranties and covenants and agreements of Seller, the Stockholder and Buyer contained in this Agreement, or listed or disclosed on any Schedule hereto or in any instrument or document certificate delivered in connection with herewith or pursuant to any of the foregoing. All such representations, warranties, covenants and agreements therewith shall survive the execution and delivery of this Agreement and the Closing hereunder for a period of two eighteen (218) years after the Closing Datemonths thereafter; provided, except however, that (a) any representation, warranty, claim under the covenant or agreement contained set forth in Sections 3.1 and 4.2 hereof Section 15.3(i) shall survive the execution and delivery of this Agreement and the Closing hereunder without limitation, until thirty (b30) any representation, warranty, covenant or agreement related to Taxes shall survive the execution and delivery of this Agreement and the Closing hereunder until days after the expiration of the applicable statute statutory period of limitationslimitations to which the claim relates, as such period may be extended from time to time, (b) representations and warranties set forth in Sections 7.1, 7.3, 7.4, 8.1, 8.2 and 8.3 shall survive the Closing without any limitation as to time, (c) any non-compete agreement delivered pursuant hereto claims for damage to real or personal property as of Closing arising out of a breach of a representation, warranty or covenant shall survive for six (6) months following the Closing and (d) representations and warranties set forth in Section 7.20 shall survive the Closing until the expiration of the duration of such covenant not to compete, and (d) any representation, warranty, covenant or agreement contained herein and any Liabilities of Seller with respect thereto relating to Medicare, Medicaid or third party payors shall survive until the later of the third fifth anniversary of the Closing Date Date. Notwithstanding anything contained herein to the contrary, any covenant, agreement, representation or warranty in respect of which indemnity may be sought pursuant to this Agreement, shall survive the conclusion time at which it would otherwise terminate pursuant to the preceding sentence, if, prior to such time, written notice of any audit a good faith claim, breach or review commenced within inaccuracy thereof giving rise to such three-year periodindemnity shall have been given to the other party specifying in reasonable detail the basis thereof and referencing the provision of this Agreement pursuant to which the claim is being asserted and shall be extended for the representation, covenant, agreement or warranty alleged to have been breached as applied to the circumstances set forth in such notice until after the final resolution of the matter.

Appears in 1 contract

Samples: Asset Purchase Agreement (Dixie Group Inc)

Survival of Representations and Warranties. Notwithstanding any right of Buyer or Seller fully to investigate the affairs of Buyer or Seller, All representations and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer warranties contained in this Agreement, or listed or disclosed on any Schedule hereto or in any instrument or document delivered in connection with or pursuant to any of the foregoing. All such representations, warranties, covenants and agreements Agreement shall survive the execution Closing until, and delivery of this Agreement and shall terminate on the Closing hereunder for a period of two date that is eighteen (218) years months after the Closing Date; provided, except however, that the representations and warranties in (a) any representationSections 5.1(a) (ChromaDex Organization), warranty5.1(b) (ChromaDex Analytics’ Organization), covenant or agreement contained in Sections 3.1 5.2(a) (Due Authorization), 5.2(b) (Binding Agreement) and 4.2 hereof 5.17 (No Broker) (collectively, the “Fundamental Reps”) shall survive the execution Closing until, and delivery shall terminate on, the date that is the sixth (6th) anniversary of this Agreement and the Closing hereunder without limitationDate, (b) any representation, warranty, covenant or agreement related to Taxes the representations and warranties in Section 5.7 (Taxes) shall survive the execution Closing until, and delivery of this Agreement and shall terminate on, the Closing hereunder until sixtieth (60th) day following the expiration of the applicable statute of limitations, and (c) any non-compete agreement delivered pursuant hereto the representations and warranties in Section 5.11 (Environmental Matters) shall survive the Closing until, and shall terminate on, May 1, 2024, and provided further, however, that any claims for common law fraud shall survive the Closing until, and shall terminate on, the date that is the sixth (6th) anniversary of the Closing Date. All covenants and agreements contained in this Agreement or any other Transaction Document that are to be performed prior to or as of the Closing shall terminate upon the Closing, and all covenants and agreements contained in this Agreement or any other Transaction Document that are to be performed in whole or in part after the Closing Date shall survive in accordance with their respective terms until fully performed. No claim for indemnification hereunder for breach, inaccuracy, non-fulfillment or non-performance of any representations or warranties or covenants or agreements contained in this Agreement or any other Transaction Document may be made after the expiration of the duration applicable survival period indicated in the two preceding sentences (each, an “Indemnification Period”);provided that, if a Claim Notice is given on or prior to the expiration of the applicable Indemnification Period in accordance with Section 11.4, then, notwithstanding that such covenant not to competeIndemnification Period shall have expired, the representations, warranties, covenants and (d) any representation, warranty, covenant or agreement contained herein and any Liabilities of Seller with respect thereto agreements relating to Medicaresuch claim, Medicaid including but not limited, to any attendant indemnification rights or third party payors obligations associated therewith in accordance with the terms and conditions of this Agreement, shall continue to survive until the later claim is finally resolved. The right to indemnification, reimbursement or other remedy based upon the representations and warranties of Seller Parties shall not be affected by any investigation conducted with respect to, or any knowledge acquired (or capable of being acquired) at any time, whether before or after the third anniversary execution and delivery of this Agreement or the Closing Date Date, with respect to the accuracy or the conclusion inaccuracy of any audit such representation or review commenced within such three-year periodwarranty.

Appears in 1 contract

Samples: Asset Purchase Agreement (ChromaDex Corp.)

Survival of Representations and Warranties. of MedSource and the --------------------------------------------------------------- Transferee. Notwithstanding any right of Buyer or Seller the Transferors fully to investigate ---------- the affairs of Buyer or Seller, MedSource and the Transferee and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller the Transferors pursuant to such investigation or right of investigation, Buyer and Seller the Transferors have the right to rely fully upon the representations, warranties, covenants representations and agreements warranties of Seller, MedSource and the Stockholder and Buyer Transferee contained in this Agreement, or listed or disclosed on any Schedule hereto Agreement or in any instrument other Transaction Documents or document delivered in connection with or pursuant Acquisition Agreements, including the Memorandum as amended from time to any of time prior to the foregoingClosing Date. All such representations, warranties, covenants representations and agreements warranties shall survive the execution and delivery of this Agreement and the Closing hereunder for a period and shall thereafter continue in full force and effect until the second anniversary of two (2) years after the Closing Date, and MedSource's and the Transferee's liability in respect of any breach of any such representation or warranty shall terminate on the second anniversary of the Closing Date, except that (a) any representationfor liability with respect to which notice shall have been given on or prior to such date to the party against which such claim is asserted pursuant to section 10.3. The foregoing notwithstanding, warrantythe representations and warranties set forth in sections 4.2, covenant or agreement contained in Sections 3.1 4.6 and 4.2 hereof 4.10 shall survive the execution Closing, and delivery of this Agreement MedSource's and the Closing hereunder without Transferee's liability in respect of any breach thereof shall continue until 60 days after all liability relating thereto is barred by all applicable statutes of limitation, (b) any representation, warranty, covenant or agreement related to Taxes shall survive the execution including extensions and delivery of this Agreement and the Closing hereunder until the expiration of the applicable statute of limitations, (c) any non-compete agreement delivered pursuant hereto shall survive the Closing until the expiration of the duration of such covenant not to compete, and (d) any representation, warranty, covenant or agreement contained herein and any Liabilities of Seller with respect thereto relating to Medicare, Medicaid or third party payors shall survive until the later of the third anniversary of the Closing Date or the conclusion of any audit or review commenced within such three-year periodwaivers.

Appears in 1 contract

Samples: Contribution and Exchange Agreement (Medsource Technologies Inc)

Survival of Representations and Warranties. (a) Notwithstanding any right investigation conducted at any time with regard thereto by or on behalf of Buyer any party, all representations, warranties, covenants and agreements of the Company, the Shareholders and Purchaser shall survive the Closing hereunder; provided however, that the representations and ----------------- warranties of the Shareholders and Purchaser and the obligation of indemnity with respect thereto, set forth in Article II, Article III and Article IV of this Agreement, shall survive until May 10, 2000 with respect to claims for indemnification made on or Seller fully to investigate the affairs of Buyer or Sellerbefore May 10, 2000, for which notice has been duly and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller properly given pursuant to the provisions of this Article VIII; provided -------- further, however, that the representations and warranties and the obligation of ---------------- indemnity with respect thereto shall survive with respect to such investigation claims until they are finally determined and paid; provided further, however, that the ------------------------- representations and warranties and the obligation of indemnity with respect thereto of the Shareholders with respect to the representations and warranties set forth in Section 2.18 (Taxes) and Section 2.25 (Immigration Compliance) shall survive until the expiration of the applicable statutes of limitation on third party and governmental claims; provided further, however, that the -------------------------- representations and warranties and the obligation of indemnity with respect thereto of the Shareholders with respect to the representations and warranties set forth in Section 2.2 (Capital Structure) shall survive forever; and provided -------- further, however, that the obligation of indemnity of the Shareholders for ---------------- claims based on fraud or right intentional misrepresentation with respect to any of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer contained Shareholders in this Agreement, or listed or disclosed on any Schedule hereto or in any instrument or document delivered in connection with or pursuant to any of the foregoing. All such representations, warranties, covenants and agreements Agreement shall survive the execution and delivery of this Agreement and the Closing hereunder for a period of two (2) years after the Closing Date, except that (a) any representation, warranty, covenant or agreement contained in Sections 3.1 and 4.2 hereof shall survive the execution and delivery of this Agreement and the Closing hereunder without limitation, (b) any representation, warranty, covenant or agreement related to Taxes shall survive the execution and delivery of this Agreement and the Closing hereunder until the expiration of the applicable statute of limitations, (c) any non-compete agreement delivered pursuant hereto shall survive the Closing until the expiration of the duration of such covenant not to compete, and (d) any representation, warranty, covenant or agreement contained herein and any Liabilities of Seller with respect thereto relating to Medicare, Medicaid or third party payors shall survive until the later of the third anniversary of the Closing Date or the conclusion of any audit or review commenced within such three-year periodforever.

Appears in 1 contract

Samples: Stock Purchase Agreement (Hall Kinion & Associates Inc)

Survival of Representations and Warranties. Notwithstanding any right of Buyer or Seller fully to investigate the affairs of Buyer or Seller, and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the (i) The representations, warranties, covenants obligations and agreements of Seller, the Stockholder Fund and Buyer Supremex contained in this Agreement, or listed or disclosed on any Schedule hereto or Agreement and in any instrument certificate delivered pursuant to this Agreement or document delivered in connection with or pursuant to any the purchase and sale of the foregoing. All such representations, warranties, covenants and agreements Units shall survive the execution purchase of the Units and delivery of this Agreement shall continue in full force and the Closing hereunder effect for a period of two (2) years after 18 months from the Closing DateDate unaffected by any subsequent disposition of the Units by the Underwriters or the termination of the Underwriters' obligations and shall not be limited or prejudiced by any investigation made by or on behalf of the Underwriters in connection with the preparation of the Prospectus, any Prospectus Amendments or the distribution of the Units, except that that: (aw) any representationthe representations and warranties set out in sections 5(a), warranty, covenant or agreement contained in Sections 3.1 5(b)(xi) and 4.2 hereof 5(b)(xii) (and the related indemnity obligation with respect to the foregoing sections) shall survive for a period of 90 days following the execution date on which the Fund is no longer liable under Canadian Securities Laws for a misrepresentation under the Prospectus, (x) the representations and delivery of this Agreement warranties set out in sections 5(b)(i) to 5(b)(vi) inclusively, 5(b)(vii)(A) and (B), 5(b)(ix), 5(b)(xiv) and 5(b)(xv) (and the Closing hereunder without limitation, (brelated indemnity obligation with respect to the foregoing sections) any representation, warranty, covenant or agreement related to Taxes shall survive the execution and delivery of this Agreement and the Closing hereunder until the expiration of the applicable statute of limitations, (c) any non-compete agreement delivered pursuant hereto shall survive the Closing until and continue in full force and effect without limitation of time, (y) the expiration representations and warranties set out in section 5(b)(xxxiii) (and the related indemnity obligation with respect to the foregoing section) shall be subject to the time limitations set forth in section 7.1 of the duration of such covenant not to competeAcquisition Agreement, and (dz) a claim for any representation, warranty, covenant or agreement contained herein and breach of any Liabilities of Seller with respect thereto relating to Medicare, Medicaid or third party payors shall survive until the later of the third anniversary representations and warranties of the Closing Date Fund or the conclusion Supremex contained in this Agreement involving fraud shall not be subject to any limitation of any audit or review commenced within such three-year periodtime.

Appears in 1 contract

Samples: Underwriting Agreement (Cenveo, Inc)

Survival of Representations and Warranties. Notwithstanding any right All of Buyer or Seller fully to investigate the affairs terms and conditions of Buyer or Seller, and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer contained in this Agreement, or listed or disclosed on any Schedule hereto together with the warranties, representations, agreements and covenants contained herein or in any instrument or document delivered in connection with or to be delivered pursuant to any of the foregoing. All such representationsthis Agreement, warranties, covenants and agreements shall survive the execution and delivery of this Agreement and the Closing hereunder Date, notwithstanding any investigation heretofore or hereafter made by or on behalf of any party hereto; provided, however, that unless otherwise stated, the agreements and covenants set forth in this Agreement shall survive and continue until all obligations set forth therein shall have been performed and satisfied. Notwithstanding the foregoing, (a) the representations and warranties contained in Article III and Sections 4.1, 4.2, 4.3, 4.4, 5.1, 5.2, 5.3 and 5.4 of this Agreement shall survive the Closing and continue in full force and effect for a period 7 years from the Closing Date; (b) the representations and warranties of two the Selling Shareholders and the Company contained in Sections 4.11, 4.25 and the covenants set forth in Section 10.6 of this Agreement shall survive the Closing and continue in full force and effect until the expiration of 7 years from the Closing Date; and (2c) years after all other representations and warranties, and the related agreements of the Selling Shareholders, the Company and the Buyer to indemnify each other set forth in this Article IX, shall survive and continue for, and all indemnification claims with respect thereto shall be made prior to the end of, eighteen (18) months from the Closing Date, except that (a) any representationfor representations, warranty, covenant or agreement contained in Sections 3.1 warranties and 4.2 hereof related indemnities for which an indemnification claim shall survive be pending as of the execution and delivery of this Agreement and the Closing hereunder without limitation, (b) any representation, warranty, covenant or agreement related to Taxes shall survive the execution and delivery of this Agreement and the Closing hereunder until the expiration end of the applicable statute of limitationsperiod referred to above, (c) any non-compete agreement delivered pursuant hereto in which event such indemnities shall survive the Closing with respect to such indemnification claim until the expiration of final disposition thereof (the duration of such covenant not to compete, and (d) any representation, warranty, covenant or agreement contained herein and any Liabilities of Seller with respect thereto relating to Medicare, Medicaid or third party payors shall survive until the later of the third anniversary of the Closing Date or the conclusion of any audit or review commenced within such three-year period“Indemnification Period”).

Appears in 1 contract

Samples: Share Purchase Agreement (Protea Biosciences Group, Inc.)

Survival of Representations and Warranties. Notwithstanding any right The representations and warranties of Buyer or Seller fully to investigate the affairs of Buyer or Seller, and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer parties contained in this Agreement, or listed or disclosed on any Schedule certificate delivered pursuant hereto or in any instrument Company Document, CVPS Document or document delivered in connection with or pursuant to any of the foregoing. All such representations, warranties, covenants and agreements Purchaser Document shall survive the execution Initial Closing through and delivery of this Agreement including June 30, 2007; provided, however, that the representations and the Closing hereunder for a period of two (2) years after the Closing Date, except that warranties (a) any representationof CVPS and the Company in the first sentence of Section 3.1 (Organization), warrantySection 3.2 (Authorization), covenant or agreement contained in Sections 3.1 Section 3.4 (Capitalization), all sentences except the third sentence of Section 3.5(a) (Subsidiaries) and 4.2 hereof the third sentence of Section 3.5(b) (Subsidiaries) shall survive the execution and delivery of this Agreement and the Initial Closing hereunder without limitationindefinitely, (b) of CVPS and the Company in Section 3.15 (Employee Benefit Plans) and Section 3.19 (Environmental) (but only as it relates to the Rumford and Ryegate Underlying Projects, it being agreed that Section 3.19 as it relates to any representation, warranty, covenant or agreement related other matter shall survive only as specified in clauses (i) and (ii) hereof without giving effect to Taxes this proviso) shall survive the execution and delivery of this Agreement and the Initial Closing hereunder until 60 days following the expiration of the applicable statute of limitationslimitations with respect to the particular matter that is the subject matter thereof, (c) any non-compete agreement delivered pursuant hereto of Purchaser in Section 4.1 (Organization) and Section 4.2 (Authorization) shall survive the Initial Closing until indefinitely (in each case, the expiration of the duration of such covenant not to compete“Survival Period”), and (d) of CVPS and the Company in Sections 3.9(a)(iv) and (v) and Section 3.10 (Taxes) shall not survive the Initial Closing Date; provided, however, that any representation, warranty, covenant or agreement contained herein and any Liabilities of Seller obligations under Section 7.2(a)(i) shall not terminate with respect thereto relating to Medicare, Medicaid or third party payors any Losses as to which the Person to be indemnified shall survive until have given notice (stating in reasonable detail the later basis of the third anniversary claim for indemnification) to the indemnifying party in accordance with Section 7.3(a) before the termination of the Closing Date or the conclusion of any audit or review commenced within such three-year periodapplicable Survival Period.

Appears in 1 contract

Samples: Stock Subscription Agreement (Central Vermont Public Service Corp)

Survival of Representations and Warranties. Notwithstanding any right of Buyer or Seller fully Except with respect to investigate the affairs of Buyer or Sellerrepresentations and warranties set forth in Sections 3.1(a), 3.2(1) and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller3.2(n) hereof, the Stockholder representations and Buyer contained warranties set forth in this Agreement, or listed or disclosed on any Schedule hereto or in any instrument or document delivered in connection with or pursuant to any of the foregoing. All such representations, warranties, covenants Articles III and agreements shall survive the execution and delivery of this Agreement and the Closing hereunder for a period of two (2) years after the Closing Date, except that (a) any representation, warranty, covenant or agreement contained in Sections 3.1 and 4.2 IV hereof shall survive the execution Closing and delivery remain in effect until the second anniversary of this Agreement and the Closing hereunder without limitation, (bDate. The representations and warranties set forth in Section 3.1(a) any representation, warranty, covenant or agreement related to Taxes shall survive the execution indefinitely. The representations and delivery warranties set forth in Section 3.2(1) hereof shall survive until all applicable statutes of this Agreement limitations have expired. The representations and the Closing hereunder until the expiration of the applicable statute of limitations, (cwarranties set forth in Section 3.2(n) any non-compete agreement delivered pursuant hereto hereof shall survive the Closing until the expiration of the duration of such covenant not to compete, and (d) any representation, warranty, covenant or agreement contained herein and any Liabilities of Seller with respect thereto relating to Medicare, Medicaid or third party payors shall survive until the later of the third twelfth anniversary of the Closing Date or, if earlier, the date upon which the Buyer's Preferred Stock held by the Stockholders shall be required to be redeemed or repurchased pursuant to the terms of the Buyer's Preferred Stock or otherwise, or the conclusion date set for any such redemption or repurchase agreed to by the Buyer, whether or not there shall be legally available funds to effect any such redemption or repurchase on such date. All covenants of any audit party hereto shall survive indefinitely, until by their respective terms they become inoperative. The date upon which any representation and warranty or review commenced within covenant expires is referred to herein as the "Survival Date" of such three-year periodrepresentation and warranty or covenant (except that the Survival Date of any representation and warranty or covenant with respect to any claim made pursuant to Section 8.2.3 or 8.2.4 hereof prior to the date of expiration of such representation, warranty or covenant shall be, solely with respect to such claim, the date of final adjudication of such claim). The Survival Date with respect to the representations and warranties set forth in Section 3.2(n) hereof is referred to herein as the "Environmental Survival Date".

Appears in 1 contract

Samples: Exchange Agreement (Bremen Bearings Inc)

Survival of Representations and Warranties. (a) Notwithstanding any right of Buyer or Seller the Parent and the Merger Subs to fully to investigate the affairs of Buyer or Seller, the Companies and notwithstanding any knowledge Knowledge of facts determined or determinable by Buyer or Seller the Parent and the Merger Subs pursuant to such investigation or right of investigation, Buyer the Parent and Seller the Merger Subs have the right to rely fully upon the representations, warranties, covenants representations and agreements warranties of Seller, the Stockholder and Buyer Seller Group contained in this Agreement, or listed or disclosed on any Schedule the Schedules hereto or and in any instrument or document delivered in connection with or pursuant to any of the foregoingOperative Agreements. All Except as provided in the immediately following sentence, all such representations, warranties, covenants representations and agreements warranties shall survive the execution and delivery of this Agreement and the Closing hereunder for a period and shall thereafter continue in full force and effect until the second anniversary of two the Closing Date, and (2subject to Section 8.2(b)) years after the liability of the Seller Group in respect of any inaccuracy in any such representation or warranty shall terminate on the second anniversary of the Closing Date, except that (a) any representationfor liability with respect to which notice shall have been given on or prior to such date to the party against which such claim is asserted. The foregoing notwithstanding, warranty, covenant or agreement the obligation of the Seller Group to indemnify pursuant to this Agreement with respect to representations and warranties contained in Section 3.3 (Equity Interests; Title), which shall survive indefinitely, and Sections 3.1 3.11 (Taxes), 3.16 (Environment), 3.21 and 4.2 hereof 3.14 (Employment and Benefit Plans; ERISA), and with respect to matters arising from fraud, shall survive the execution and delivery of this Agreement and the Closing hereunder without limitation, (b) any representation, warranty, covenant or agreement related to Taxes shall survive the execution and delivery of this Agreement and the Closing hereunder until the expiration of the applicable statute of limitations, (c) any non-compete agreement delivered pursuant hereto shall survive the Closing until the expiration of the duration of such covenant not to competeClosing, and (dsubject to Section 8.2(b)) any representation, warranty, covenant or agreement contained herein and any Liabilities of the Seller with Group’s liability in respect thereto relating to Medicare, Medicaid or third party payors shall survive until the later of the third anniversary of the Closing Date or the conclusion of any audit inaccuracy therein shall continue until all liability relating thereto is barred by all applicable statutes of limitation (including any extensions or review commenced within such three-year periodwaivers thereof).

Appears in 1 contract

Samples: Agreement and Plan of Merger (CKX, Inc.)

Survival of Representations and Warranties. Notwithstanding any right The representations and warranties of Buyer or Seller fully to investigate the affairs of Buyer or Seller, and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer contained Company set forth in this Agreement, or listed or disclosed on any Schedule hereto or in any instrument or document delivered in connection with or pursuant to any including the representations and warranties of the foregoing. All Company set forth in Section 2.13 (Intellectual Property) (such representations, warranties, covenants and agreements representation the “Special Representation”) shall survive until 11:59 p.m. California time on the execution and delivery of this Agreement and date that is eighteen (18) months following the Closing hereunder for a period Date (the date of two (2) years after expiration of such period, the Closing “Expiration Date”); provided, except however, that (a) any representation, in the event of Actual Fraud or intentional misrepresentation with respect to a representation or warranty, covenant subject to the terms of Section 8.3(g), such representation or agreement contained in Sections 3.1 and 4.2 hereof warranty shall survive until 11:59 p.m. California time on the execution and delivery date that is thirty (30) days after the expiration of this Agreement and the Closing hereunder without limitation, relevant statute of limitations; (b) the representations and warranties of the Company set forth in Section 2.1 (Organization and Good Standing), Section 2.2 (Authority and Enforceability), Section 2.5 (Company Capital Structure), Section 2.6 (Company Subsidiaries), Section 2.10 (Taxes), and the first sentence of Section 2.24 (Brokers’ Fees) (together, the “Fundamental Representations”) subject to the terms of Section 8.3(g), such Fundamental Representations shall survive until 11:59 p.m. California time on the date that is thirty (30) days after the expiration of the relevant statute of limitations (which shall be the Expiration Date for the purposes of the Fundamental Representations) and (c) all representations and warranties of the Company shall survive beyond the Expiration Date or other survival periods specified above with respect to any representation, inaccuracy therein or breach thereof if a claim is made hereunder prior to the expiration of the survival period for such representation and warranty, covenant or agreement related to Taxes in which case such representation and warranty shall survive only as to such claim until such claim has been finally resolved. The representations and warranties of Parent and Merger Sub set forth in this Agreement, the execution and delivery of Related Agreements or in any certificate or other instrument delivered pursuant to this Agreement shall terminate at the Closing. The obligation of the Indemnified Parties to provide indemnity pursuant to Section 8.2(a) shall survive until the Expiration Date, other than pursuant to Section 8.2(a)(ii) and Section 8.2(a)(v)-(vii) which shall survive until 11:59 p.m. California time on the Closing hereunder until date that is thirty (30) days after the expiration of the relevant statute of limitations; provided, that all such obligations shall survive with respect to any claim made prior to the expiration of the applicable statute of limitationssurvival period, (c) any non-compete agreement delivered pursuant hereto in which case such obligation shall survive only as to such claim until such claim has been finally resolved. For the Closing until avoidance of doubt, it is the expiration intention of the duration parties hereto that the foregoing respective survival periods and termination dates supersede any applicable statutes of limitations that would otherwise apply to such covenant not to compete, representations and (d) any representation, warranty, covenant warranties or agreement contained herein and any Liabilities of Seller with respect thereto relating to Medicare, Medicaid or third party payors shall survive until the later of the third anniversary of the Closing Date or the conclusion of any audit or review commenced within such three-year periodindemnities.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Coupa Software Inc)

Survival of Representations and Warranties. Notwithstanding any right All of Buyer or the ------------------------------------------ representations and warranties of the Seller fully to investigate the affairs of Buyer or Seller, and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer (except for those contained in this AgreementSections 3.1 (Organization of the Company), or listed or disclosed on any Schedule hereto 3.2 (Ownership of Company), 3.3 (Authorization of Transaction), 3.4 (Noncontravention), 3.6 (Title to Assets), 3.9 (Financial Statements), 3.11 (Absence of Undisclosed Liabilities), 3.13 (Taxes), 3.23 (Environmental, Health and Safety) and 3.26(b) (Compliance with Laws)) contained herein or in any document certificate or other instrument or document required to be delivered in connection with or pursuant to any hereunder shall expire on the Closing Date. The representations and warranties of the foregoing. All such representationsSeller and the Stockholder contained in Sections 3.4, warranties3.11, covenants 3.23 and agreements 3.26(b) shall survive the execution Closing and delivery shall continue in full force and effect for a period of this Agreement one year thereafter. The representations and warranties of the Seller and the Stockholder contained in Sections 3.1, 3.3, 3.6, 3.9, and 3.13 shall survive the Closing hereunder and shall continue in full force and effect for a period of two (2) years after thereafter. The representations and warranties of the Closing Date, except that (a) any representation, warranty, covenant or agreement Seller and the Stockholder contained in Sections 3.1 and 4.2 hereof shall survive the execution and delivery of this Agreement and the Closing hereunder without limitation, (b) any representation, warranty, covenant or agreement related to Taxes shall survive the execution and delivery of this Agreement and the Closing hereunder until the expiration of the applicable statute of limitations, (c) any non-compete agreement delivered pursuant hereto Section 3.2 shall survive the Closing until and shall continue in full force and effect without limit as to time. The termination of any such representation and warranty, however, shall not affect any claim for breaches of representations or warranties if written notice thereof is given to the expiration breaching party or parties prior to such termination date. All of the duration representations and warranties of such covenant not to competethe Buyer (except those contained in Sections 4.1 (Organization of the Buyer), 4.2 (Authorization of Transaction) and 4.3 (dNoncontravention)) any representation, warranty, covenant or agreement contained herein in Section 4 shall expire on the Closing Date. The representations and any Liabilities warranties of Seller with respect thereto relating to Medicare, Medicaid or third party payors the Buyer contained in Section 4.3 shall survive until the later Closing and shall continue in full force and effect for a period of one year thereafter. The representations and warranties of the third anniversary of Buyer contained in Sections 4.1 and 4.2 shall survive the Closing Date or the conclusion and shall continue in full force and effect for a period of two years thereafter. All covenants and indemnities of any audit Party in this Agreement or review commenced within such three-year periodin any document or certificate delivered hereunder shall, unless otherwise specifically provided therein, remain in full force and effect forever.

Appears in 1 contract

Samples: Asset Purchase Agreement (Nu Horizons Electronics Corp)

Survival of Representations and Warranties. Notwithstanding any right (a) Each of Buyer or the representations and warranties of the Purchaser and the Seller fully to investigate the affairs of Buyer or Seller, and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer Parent Company contained in this Agreement, or listed or disclosed on any Schedule hereto or in any instrument or document delivered in connection with or pursuant to any of the foregoing. All such representations, warranties, covenants and agreements shall survive the execution and delivery of this Agreement and the Closing hereunder for a period of two (2other party’s right to indemnification under Section 10.2(a)(i) years after the Closing Dateor Section 10.2(b)(i), except that (a) any representationas applicable, warranty, covenant or agreement contained in Sections 3.1 and 4.2 hereof shall survive the execution and delivery of this Agreement and the Closing hereunder without limitation, (b) any representation, warranty, covenant or agreement related to Taxes shall survive the execution and delivery of this Agreement and the Closing hereunder until the expiration of the applicable statute of limitations, (c) any non-compete agreement delivered pursuant hereto shall survive the Closing until the one (1) year anniversary of the Closing Date, except that: (i) the representations and warranties (and the right of the Purchaser Indemnified Parties to indemnification under this Article X for any inaccuracy in the Seller Closing Certificate with respect thereto) set forth in Section 3.1 (Existence; Good Standing), the first four sentences of Section 3.2 (Capitalization; Subsidiaries), Section 3.3 (No Conflict), Section 4.1 (Existence; Good Standing; Authority; Enforceability), Section 4.2 (No Conflict), Section 4.3 (Title to Equity Interests), Section 4.4 (Brokers) and Section 11.17(c) (Guarantee) (collectively, the “Seller Fundamental Representations”) shall survive indefinitely; (ii) the Purchaser’s representations and warranties (and the right of the Seller Indemnified Parties to indemnification under this Article X for any inaccuracy in the Purchaser Closing Certificate with respect thereto) set forth in Section 5.1 (Existence; Good Standing; Authority; Enforceability) and Section 5.5 (Brokers) (collectively, the “Purchaser Fundamental Representations”) shall survive indefinitely; and (iii) the Seller’s representations and warranties (and the right of Purchaser Indemnified Parties to indemnification under this Article X for any inaccuracy in the Seller Closing Certificate with respect thereto) set forth in Section 3.8 (Taxes), Section 3.9 (Employee Benefit Plans) and Section 3.13 (Environmental Matters) (collectively, the “Statute of Limitations Representations”) shall survive until thirty (30) days after the expiration of the duration statute of limitations applicable to the matters underlying each such covenant not representation and warranty. Each party’s right to competeindemnification under Section 10.2(a)(ii) or Section 10.2(a)(ii), and (d) any representationas applicable, warranty, covenant or agreement contained herein and any Liabilities of Seller with respect thereto relating to Medicarebreach of any of the covenants or agreements of the other party set forth in this Agreement to be performed on or before the Closing (and the right of Purchaser Indemnified Parties or Seller Indemnified Parties (as applicable) to indemnification under this Article X for any inaccuracy in the Seller Closing Certificate or Purchaser Closing Certificate (as applicable) with respect thereto), Medicaid or third party payors shall survive until the later of the third one (1) year anniversary of the Closing Date or the conclusion of any audit or review commenced within such three-year periodClosing.

Appears in 1 contract

Samples: Purchase Agreement (Ntelos Holdings Corp)

Survival of Representations and Warranties. Notwithstanding any right The representations and warranties contained in or made pursuant to this Agreement shall expire on the second anniversary of Buyer the Closing except that (i) the representations and warranties contained in Sections 4.1 [Organization and Related Matters], 4.7 [Authorization; No Conflicts], 4.18 [No Brokers or Seller fully to investigate the affairs of Buyer Finders], 4.24 [Environmental Compliance], 5.1 [Organization and Related Matters], 5.4 [No Brokers or SellerFinders], Section 6.7 [Sales and Transfer Taxes], and notwithstanding any knowledge 6.9 [Repair of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer contained in this Agreement, or listed or disclosed on any Schedule hereto or in any instrument or document delivered in connection with or pursuant to any of the foregoing. All such representations, warranties, covenants and agreements Damage; Condemnation] shall survive the execution Closing and delivery of this Agreement shall remain in full force and effect indefinitely, (ii) the Closing hereunder for a period of two (2) years after the Closing Date, except that (a) any representation, warranty, covenant or agreement representations and warranties contained in Sections 3.1 Section 4.3 [Tax and 4.2 hereof Other Returns and Reports] shall survive the execution and delivery of this Agreement and the Closing hereunder without limitation, (b) any representation, warranty, covenant or agreement related to Taxes shall survive the execution and delivery of this Agreement and the Closing hereunder until continue through the expiration of the applicable statute of limitationslimitations (or, if a claim has been asserted prior to such expiration, until after the date of its final resolution), (ciii) any non-compete agreement delivered pursuant hereto the agreements made in this Section 10.3 and Sections 8.1 [Noncompetition], 11.1 [Indemnity Obligations of ECI and Seller], 11.2 [Special Indemnity Obligations of Seller and ECI], 11.3 [Obligations of Buyer],11.4 [Certain Tax Matters] and 12.4 [Governing Law] and Article XIII [Arbitration] shall survive the Closing until the expiration of the duration of such covenant not to competeindefinitely, unless otherwise stated therein, and (div) any representation, warranty, covenant if a claim or agreement contained herein and any Liabilities of Seller notice is given under Article XI [Indemnification] with respect thereto relating to Medicareany representation or warranty prior to the applicable expiration date, Medicaid such representation or third party payors warranty shall survive continue indefinitely until the later of the third anniversary of the Closing Date or the conclusion of any audit or review commenced within such three-year periodapplicable claim is finally resolved.

Appears in 1 contract

Samples: Store Lease Agreement (Gottschalks Inc)

Survival of Representations and Warranties. Notwithstanding any right of Buyer or Seller fully Except with respect to investigate the affairs of Buyer or Sellerrepresentation and warranty contained in Section 4.9(a)(i), and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have which shall terminate on the right to rely fully upon the representations, warranties, covenants and agreements of SellerClosing Date, the Stockholder parties hereto hereby agree that the representations and Buyer warranties contained in this Agreement, or listed or disclosed on any Schedule hereto Agreement or in any instrument or document delivered in connection with or pursuant to any of the foregoing. All such representations, warranties, covenants and agreements Transaction Agreement shall survive the execution and delivery of this Agreement and the Closing hereunder for a period of two hereunder; provided, however, that any claims or actions with respect to representations and warranties other than those contained in Sections 4.3, 4.4, 4.7, 4.12, 4.13, 4.14 and 4.28 shall terminate unless within twenty-four (224) years months after the Closing DateDate written notice of such claims is given to the Sellers or the Purchaser, except that (a) any representationas the case may be, warranty, covenant or agreement such actions are commenced. Any claims or actions with respect to the representations and warranties contained in (i) Sections 3.1 4.13, 4.14 and 4.2 hereof 4.28 shall survive the execution and delivery of this Agreement and the Closing hereunder without limitation, terminate unless within six (b6) any representation, warranty, covenant or agreement related to Taxes shall survive the execution and delivery of this Agreement and the Closing hereunder until months after the expiration of the applicable relevant statute of limitationslimitations period written notice of such claims is given to the Sellers or such actions are commenced, (cii) any non-compete agreement delivered pursuant hereto Sections 4.3, 4.4 and 4.7 shall survive terminate on the Closing until the expiration of the duration of such covenant not to compete, and twentieth (d20th) any representation, warranty, covenant or agreement contained herein and any Liabilities of Seller with respect thereto relating to Medicare, Medicaid or third party payors shall survive until the later of the third anniversary of the Closing Date unless prior to such date written notice of such claim is given to the Sellers or such actions are commenced and (iii) Section 4.12 shall terminate on the conclusion third (3rd) anniversary of any audit the Closing Date unless prior to such date written notice of such claim is given to the Sellers or review commenced within such three-year periodactions are commenced. The parties hereto further agree that the covenants of the parties contained herein that by their terms survive the Closing shall survive the Closing hereunder except that the covenant of the Sellers and Parent contained in Sections 8.1(ii), (iii) and (iv) hereof shall terminate on the tenth anniversary of the Closing Date unless prior to such date written notice of such claims is given to the Sellers or such actions are commenced.

Appears in 1 contract

Samples: Stock Purchase Agreement (Corning Inc /Ny)

Survival of Representations and Warranties. Notwithstanding any Buyer has the right to rely fully upon the representations, warranties, covenants and agreements of Buyer or Parent and Seller fully to investigate contained in this Agreement and the affairs of Buyer or Seller, and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer Ancillary Agreements. Parent and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer contained in this Agreement, or listed or disclosed on any Schedule hereto or in any instrument or document delivered in connection with or pursuant to any of Agreement and the foregoingAncillary Agreements. All such representationsrepresentations and warranties (including the Schedules hereto and the certificates delivered in accordance with Sections 7.1 and 8.1 hereof, insofar as the Schedules and such certificates relate to such representations and warranties) shall be deemed to be repeated at Closing for purposes of this Article X and, covenants and agreements except as set forth in the last sentence of this Section, shall survive the execution and delivery of this Agreement hereof and the Closing hereunder for a period Closing, and thereafter (i) in the case of two (2) years after the Closing Date, except that (a) any representation, warranty, covenant or agreement representations and warranties contained in Sections 3.1 4.1, 4.2, 4.3, 4.4, 4.5, 4.6 and 4.2 hereof 4.18 hereof, such representations and warranties shall survive the execution and delivery of this Agreement and the Closing hereunder without limitationlimitation as to time, (bii) any representationin the case of the representations and warranties contained in Sections 4.21, warranty4.24 and 4.28 hereof, covenant or agreement related to Taxes such representations and warranties shall survive the execution and delivery of this Agreement and the Closing hereunder until 90 days after the expiration of the applicable statute of limitationslimitations with respect to the subject matter thereof and (iii) in the case of all other representations and warranties, (c) such representations and warranties shall expire on the date two years following the Closing Date; provided, however, that any non-compete agreement delivered representation or warranty shall survive the time it would otherwise terminate pursuant to this Section to the extent that notice of a breach thereof giving rise to a right of indemnification shall have been given by a party hereto in accordance with Section 10.3 hereof prior to such time. All of the covenants and agreements of the parties contained in this Agreement and the Ancillary Agreements to be performed on or after the date of this Agreement shall survive the Closing until without limitation as to time. Notwithstanding the expiration foregoing, none of the duration of following representations and warranties (including the Schedules hereto and the certificates delivered in accordance with Sections 7.1 and 8.1 hereof, insofar as the Schedules and such covenant not certificates relate to competesuch representations and warranties) shall survive the Closing: (i) representations and warranties contained in Sections 4.16, 4.21(e), 4.21(h) and Article V; and (dii) representations and warranties contained in any representation, warranty, covenant or agreement contained herein Section of Article IV and any Liabilities of Seller with respect thereto relating which relate to Medicare, Medicaid or third party payors shall survive until the later of the third anniversary of the Closing Date or the conclusion of any audit or review commenced within such three-year periodExcluded Activities.

Appears in 1 contract

Samples: Stock Purchase Agreement (Xerox Corp)

Survival of Representations and Warranties. Notwithstanding any right (a) The representations and warranties of Buyer or Seller fully to investigate the affairs of Buyer or Seller, and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer parties hereto contained in this AgreementAgreement (including, or listed or disclosed on any Schedule hereto or for the avoidance of doubt, the additional representations and warranties set forth in any instrument or document delivered in connection with or pursuant to any of the foregoing. All such representations, warranties, covenants and agreements Annex A hereto) shall survive the execution and delivery Closing until the eighteen (18) month anniversary of this Agreement and the Closing hereunder for a period of two (2) years after the Closing Date; provided, except that (a) any representation, warranty, covenant or agreement the representations and warranties contained in Sections 3.1 Section 6.1 (Organization and 4.2 hereof Good Standing), Section 6.2 (Authorization of Agreements), Section 6.3(a) (Conflicts), Section 6.6 (Title to Purchased Assets), Section 6.8 (Ownership and Transfer of Shares), Section 6.18 (Compliance with Laws; Permits), Section 7.1 (Organization and Good Standing), Section 7.2 (Authorization of Agreements), and Section 7.3(a) (Conflicts) (collectively, the “Excluded Representations”) and matters arising from Intentional Misrepresentation shall survive the execution and delivery of this Agreement remain in full force and the Closing hereunder without limitation, effect until sixty (b60) any representation, warranty, covenant or agreement related to Taxes shall survive the execution and delivery of this Agreement and the Closing hereunder until days after the expiration of the applicable statute of limitationslimitations (including any extension thereof); provided, further, that the representation and warranty of Sellers contained in Section 6.5 (cAccounts Receivable) any non-compete agreement delivered pursuant hereto shall survive the Closing until the expiration of the duration of such covenant not to compete, and twelve (d12) any representation, warranty, covenant or agreement contained herein and any Liabilities of Seller with respect thereto relating to Medicare, Medicaid or third party payors shall survive until the later of the third month anniversary of the Closing Date or (in each case, a “Warranty Survival Period”); provided, further, that the conclusion representations and warranties of any audit or review commenced Sellers set forth in Section 6.10 (Taxes) and Section 2.7 (General Tax Warranties) of Annex A hereto, other than the representations and warranties in Sections 2.7(a), (o) and (p) of such Annex A, shall not survive the Closing; and provided, further, that the schedules relating to Sections 2.7(a), (o) and (p) of Annex A hereto shall be provided by Sellers to Purchaser within thirty (30) days of the Closing Date and that the representations and warranties in such three-year periodsections shall survive until the date thirty (30) days after the delivery by Sellers to Purchaser of the Schedules relating to such sections.

Appears in 1 contract

Samples: Purchase Agreement (Banctec Inc)

Survival of Representations and Warranties. Notwithstanding any right of Buyer or Seller fully to investigate the affairs of Buyer or Seller, 11.5.1 All representations and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer warranties contained in this Agreement, or listed or disclosed on any Schedule hereto Ancillary Agreement or in any certificate, instrument or other document delivered in connection with or pursuant to any of the foregoing. All such representations, warranties, covenants and agreements this Agreement or Ancillary Agreement shall survive the execution and delivery Closing, irrespective of this Agreement and any facts known to any Indemnified Party at or prior to the Closing hereunder or any investigation at any time made by or on behalf of any Indemnified Party, for a period of two 24 (2twenty-four) years after CONFIDENTIAL TREATMENT [***] Indicates that text has been omitted which is the subject of a confidential treatment request. This text has been separately filed with the SEC. months from the Closing Date; provided, except that however, that: (ai) any representationthe representations and warranties set forth in the second sentence of Clause 9.9 (Assets), warrantyClause 9.15 (Tax Matters), covenant or agreement contained in Sections 3.1 Clause 9.16 (Employee Benefit Matters) and 4.2 hereof Clause 9.18 (Environmental, Health and Safety Matters) shall survive the execution until 180 (one hundred and delivery of this Agreement and the Closing hereunder without limitation, (beighty) any representation, warranty, covenant or agreement related to Taxes shall survive the execution and delivery of this Agreement and the Closing hereunder until days following the expiration of the applicable statute of limitationslimitations applicable to the underlying matters covered by such provisions; and (ii) the representations and warranties set forth in Clause 9.1 (Organization and Good Standing), Clause 9.2 (cAuthority and Enforceability), Clause 9.3(a) any non-compete agreement delivered pursuant hereto (No Conflict), Clause 9.29 (Brokers or Finders), Clause 9.30 (Solvency), Clause 10.1 (Organization and Good Standing), Clause 10.2 (Authority and Enforceability), Clause 10.3 (No Conflict), Clause 10.5 (Brokers or Finders) and Clause 10.6 (Financing) shall survive the Closing until the expiration of the duration of such covenant not to compete, and (d) any representation, warranty, covenant or agreement contained herein and any Liabilities of Seller with respect thereto relating to Medicare, Medicaid or third party payors shall survive until the later of the third anniversary of the Closing Date or the conclusion of any audit or review commenced within such three-year periodindefinitely.

Appears in 1 contract

Samples: Transfer Agreement (Hospira Inc)

Survival of Representations and Warranties. Notwithstanding any right of Buyer or All representations and warranties made by Parent, Seller fully to investigate the affairs of Buyer or Seller, and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer contained in this Agreement, or listed or disclosed on any Schedule hereto or in any instrument or document delivered in connection with or pursuant to any of the foregoing. All such representations, warranties, covenants and agreements Agreement shall survive the execution Closing Date and delivery of this Agreement and expire on the Closing hereunder for a period of two date that is eighteen (218) years after months from the Closing Date; provided, except however, that the representations and warranties set forth in Section 3.19 (aTaxes) any representation, warranty, covenant or agreement contained in Sections 3.1 and 4.2 hereof shall survive the execution and delivery of this Agreement and the Closing hereunder without limitation, until sixty (b60) any representation, warranty, covenant or agreement related to Taxes shall survive the execution and delivery of this Agreement and the Closing hereunder until days after the expiration of the applicable statute of limitations, and the representations and warranties set forth in Sections 3.1(a) (cOrganization and Qualification), 3.3 (Capitalization), 3.4 (Subsidiaries), 3.5 (Authority; Enforceability), 3.29 (Brokers), 4.1 (Organization), 4.2 (Authority; Enforceability) any non-compete agreement delivered pursuant hereto and 4.6 (Brokers) (such representations and warranties, together with the representations and warranties set forth in Section 3.19 (o), (p) and (q) (for purposes of it being a Fundamental Representation only, the “Fundamental Representations”) shall survive the Closing until for the expiration maximum period of the duration of such covenant not time allowed under Law. The covenants or other agreements made by Parent, Seller or Buyer in this Agreement which by their terms contemplate performance prior to compete, and (d) any representation, warranty, covenant or agreement contained herein and any Liabilities of Seller with respect thereto relating to Medicare, Medicaid or third party payors shall survive until the later of the third anniversary of the Closing Date shall survive the Closing Date and expire on the date that is twenty-four (24) months from the Closing Date. Each covenant or other agreement made by Parent, Seller or Buyer which by its terms contemplate performance after the conclusion Closing Date shall survive the Closing indefinitely until sixty (60) days after it is fully performed. The period of any audit time a covenant, agreement, representation or review commenced within warranty survives the Closing pursuant to this Section 9.1 shall be the “Survival Period” with respect to such threecovenant, agreement, representation or warranty. The parties acknowledge that the time periods set forth in this Article IX for the assertion of claims under this Agreement are the result of arms-year period.length negotiation among the parties and that the parties intend for such time periods to be enforced as agreed by the parties. 9.2

Appears in 1 contract

Samples: Stock Purchase Agreement (Horace Mann Educators Corp /De/)

Survival of Representations and Warranties. Notwithstanding any right Except for (a) those representations and warranties in Section 3.2 and Section 3.7 (which shall survive without limitation), (b) those representations and warranties in Section 3.19 and Section 3.23 (which shall survive until three (3) years after the Closing Date) and (c) those representations and warranties in Section 3.22 (which shall survive until sixty (60) days after the expiration of Buyer or Seller fully the applicable statute of limitations with respect to investigate the affairs matter to which the claim relates, as such limitation period may be extended from time to time), all representations and warranties of Buyer or Seller, and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer Purchaser and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer contained in this Agreement, or listed or disclosed on any Schedule hereto Agreement or in any instrument or document the certificates delivered in connection with or pursuant to any of the foregoing. All such representations, warranties, covenants and agreements Section 2.2(b) or Section 2.3(b) shall survive the execution and delivery of this Agreement and the Closing hereunder for a until February 15, 2007, and each representation and warranty of Purchaser and Seller contained in this Agreement shall terminate and expire in the case of Purchaser on February 15, 2007 or in the case of Seller at the end of the applicable period referred to above; provided, however, that, in each case, such representations and warranties shall survive beyond their respective periods with respect to any inaccuracy therein or breach thereof, notice of two which shall have been duly given within such applicable period in accordance with Section 8.3 hereof. Those covenants and agreements set forth in Section 5.1 shall survive until one (21) years year after the Closing Date, except that (a) any representation, warranty, covenant or agreement contained in Sections 3.1 Date and 4.2 hereof shall survive the execution those covenants and delivery agreements of this Agreement Purchaser and Seller to be performed after the Closing hereunder without limitation, (b) any representation, warranty, covenant or agreement related to Taxes shall survive the execution and delivery of this Agreement and the Closing hereunder until the expiration of the applicable statute of limitations, (c) any non-compete agreement delivered pursuant hereto shall survive the Closing until for the expiration of the duration of applicable periods specified therein; provided, however, that in each case, such covenant not to compete, and (d) any representation, warranty, covenant or agreement contained herein and any Liabilities of Seller covenants shall survive beyond such respective periods with respect thereto relating to Medicareany breach thereof. The other covenants and agreements of Purchaser and Seller to be performed prior to the Closing (i.e., Medicaid or third party payors those other than the covenants set forth in Section 5.1) shall survive until the later of the third anniversary of the Closing Date or the conclusion of any audit or review commenced within such three-year periodClosing.

Appears in 1 contract

Samples: Stock Purchase Agreement (Newell Rubbermaid Inc)

Survival of Representations and Warranties. Notwithstanding any right The representations and warranties of Buyer or Seller fully to investigate the affairs of Buyer or Seller, Parties and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer contained Buyers made in this Agreement, or listed or disclosed on any Schedule hereto or Agreement and in any instrument or document the documents and certificates delivered in connection with or pursuant to any of the foregoing. All such representations, warranties, covenants and agreements herewith shall survive the execution and delivery Closing, provided that in no event shall any Party be entitled to seek indemnification in respect of any breach of any representation or warranty made herein pursuant to this Agreement and Section 8 unless the Party seeking indemnification has made a written claim therefor to either the Buyer Representative or the Seller Representative, as appropriate, pursuant to Section 10(h) below on or prior to the date that is eighteen (18) months from the Closing hereunder for a period of two Date (2the “Survival Period”). Notwithstanding the preceding sentence, (i) years after the Closing Date, except that (a) any representation, warranty, covenant or agreement 49 representations and warranties contained in Sections 3.1 each of Section 3(m)(Tax Matters) and 4.2 hereof Section 3(w)(Employee Benefit Matters) shall survive the execution and delivery of this Agreement and the Closing hereunder without limitation, (b) any representation, warranty, covenant or agreement related to Taxes shall survive the execution and delivery of this Agreement and the Closing hereunder until the expiration of for the applicable statute of limitationslimitations and (ii) the representations and warranties contained in each of Section 3(o)(Intellectual Property) and Section 3(x)(Environmental Matters) shall survive for five (5) years from the Closing Date; provided, however, that, notwithstanding the foregoing, claims for indemnification pursuant to this Section 8 for (w) breaches of Section 3(a) or 4(a), (cx) breaches of any non-compete agreement delivered pursuant hereto representations and warranties arising from fraud or intentional misrepresentation and (y) liability of Sellers for Retained Liabilities, liability of Buyers for Assumed Liabilities and (z) breaches of any of Seller Parties’ covenants or any of Buyers’ covenants herein shall survive the Closing until the expiration of the duration of such covenant not to compete, and (d) any representation, warranty, covenant or agreement contained herein and any Liabilities of Seller with respect thereto relating to Medicare, Medicaid or third party payors shall survive until the later of the third anniversary of the Closing Date or the conclusion of any audit or review commenced within such three-year periodindefinitely.

Appears in 1 contract

Samples: Asset Purchase Agreement (Synovis Life Technologies Inc)

Survival of Representations and Warranties. Notwithstanding any right The rights of Buyer or Seller fully Parties to investigate indemnification under this Agreement with respect to the affairs of Buyer or Seller, representations and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer contained in this Agreement, or listed or disclosed on any Schedule hereto or in any instrument or document delivered in connection with or pursuant to any of the foregoing. All such representations, warranties, covenants and agreements warranties made hereunder shall survive the execution Closing for a period beginning on the date hereof and ending on the later of (x) twelve (12) months from the date of Closing and (y) forty-five (45) days following delivery to Buyer of the audited financial statements of Buyer for the first fiscal year ending after the Closing Date provided, however (i) that the rights of Buyer to indemnification under this Agreement and with respect to Section 4.02(x) shall survive the Closing hereunder for a period of two (2) years, (ii) that the rights of Buyer to indemnification under this Agreement with respect to the Fundamental Seller Representations shall survive the Closing for a period of three (3) years, (iii) that the rights of Buyer to indemnification under this Agreement with respect to Section 4.02(m) shall survive the Closing until the earlier of (A) the date that is six (6) years after the Closing Date, except Date and (B) the date that is thirty (a30) any representation, warranty, covenant or agreement contained in Sections 3.1 and 4.2 hereof shall survive the execution and delivery of this Agreement and the Closing hereunder without limitation, (b) any representation, warranty, covenant or agreement related to Taxes shall survive the execution and delivery of this Agreement and the Closing hereunder until days after the expiration of the applicable statute of limitations, and (civ) any non-compete agreement delivered pursuant hereto that the rights of Seller to indemnification under this Agreement with respect to the Fundamental Buyer Representations shall survive the Closing for a period of three (3) years. None of the covenants or other agreements contained in this Agreement shall survive the Closing, other than the covenants and agreements that by their terms apply or are to be performed in whole or in part after the Closing Date, which covenants and agreements shall survive until the period provided in such covenants and agreements, if any, or until fully performed. Any claim for indemnification pursuant to this Section 8.01 that is made in accordance with the requirements set forth in Section 8.03 prior to the expiration of the duration of such covenant not to compete, and (d) any representation, warranty, covenant or agreement contained herein and any Liabilities of Seller applicable survival period set forth in this Section 8.01 with respect thereto relating to Medicaresuch claim shall survive, Medicaid or third party payors shall survive subject to the remaining limitations set forth in this Section 8.01, until the later of the third anniversary of the Closing Date or the conclusion of any audit or review commenced within such three-year periodclaim is finally resolved.

Appears in 1 contract

Samples: Shareholders Agreement (Terex Corp)

Survival of Representations and Warranties. Notwithstanding any right of Buyer or Seller fully to investigate the affairs of Buyer or Seller, and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer contained Except as specifically set forth in this AgreementSection, or listed or disclosed on any Schedule hereto or in any instrument or document delivered in connection with or pursuant to any none of the foregoing. All such representations, warranties, covenants representations and agreements warranties in this Agreement shall survive the execution Closing. In accordance with the foregoing, (i) the representations and delivery of this Agreement and the Closing hereunder for a period of two (2) years after the Closing Date, except that (a) any representation, warranty, covenant or agreement warranties contained in Sections 3.1 and 4.2 hereof through 3.4 shall survive the execution Closing without termination, (ii) the representations and delivery of this Agreement warranties contained in Sections 3.5, 3.7, 3.8 (except as hereafter provided), 3.9, 3.10, 3.11, 3.13, 3.14, 3.16, 3.17 and 3.18 shall survive for a period Two Hundred Seventy (270) days following the Closing hereunder without limitation, Date; (biii) any representation, warranty, covenant or agreement related to Taxes the representations and warranties contained in Section 3.6 shall survive the execution and delivery of this Agreement and the Closing hereunder until the expiration of the applicable statute of limitationslimitations with respect to the matters referenced in such section; (iv) the representations and warranties contained in Section 3.15 hereof shall survive for a period of five (5) years following the Closing Date; (v) the representations and warranties contained in Section 3.12 shall survive for a period of One (1) year from the Closing Date; and (vi) the representations and warranties related to title contained in Section 3.8 shall survive for a period of one (1) year from the Closing Date. All of the covenants and agreements contained in this Agreement shall, (c) any non-compete agreement delivered pursuant hereto shall unless otherwise expressly so provided, survive the Closing until the expiration in accordance with their own terms. Purchaser acknowledges that neither of the duration Seller nor MegaTech, nor any other person or entity acting on behalf of such covenant not Seller or any affiliate of Seller, (i) has made any representation or warranty express or implied, including any implied representation or warranty as to competethe condition, and merchantability, suitability or fitness for a particular purpose of any of the assets used in the Business or (dii) has made any representation, representation or warranty, covenant express or agreement contained herein implied, as to the accuracy or completeness of any information regarding the Business, in each case, except as expressly set forth in this Agreement or as and to the extent required by this Agreement to be set forth in any schedules hereto. Purchaser further agrees that Seller will not have or be subject to any liability to Purchaser resulting from the distribution to Purchaser, or Purchaser's use of, the Information Memorandum prepared by Xxxxxx Xxxxxxxxx Xxxxxx & Co., dated September 3, 1998 and any Liabilities of Seller with respect thereto relating information, document, or material made available to Medicare, Medicaid Purchaser in certain "data rooms," management presentations or third party payors shall survive until the later any other form in expectation of the third anniversary of transactions contemplated by this Agreement, except to the Closing Date or the conclusion of any audit or review commenced within extent such three-year periodinformation is otherwise set forth in this Agreement.

Appears in 1 contract

Samples: Stock Purchase Agreement (MSX International Inc)

Survival of Representations and Warranties. Notwithstanding The representations and warranties of the Company and any right of Buyer or Seller fully to investigate the affairs of Buyer or Seller, and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer its Subsidiaries contained in this Agreement, or listed or disclosed on any Schedule hereto or in any instrument certificate or document other instruments delivered in connection with or pursuant to any of this Agreement, (other than the foregoing. All such representations, warranties, covenants representations and agreements warranties contained in Section 2.4) shall survive the execution and delivery of this Agreement and the Closing hereunder for a period of two six (26) years after months following the Closing Date, except that (a) any representation, warranty, covenant or agreement Date and the representations and warranties contained in Sections 3.1 and 4.2 hereof Section 2.4 shall survive the execution and delivery for a period of this Agreement and twelve (12) months following the Closing hereunder without limitation, Date (b) any representation, warranty, covenant or agreement related to Taxes shall survive the execution and delivery of this Agreement and the Closing hereunder until the expiration of the periods applicable statute to a representation and warranty, the “Survival Date”), provided, however, that if, at any time prior to 11:59 pm (California time) on the Survival Date applicable to such representation and warranty, an Officer’s Certificate is delivered alleging Losses and a claim for recovery then the claim asserted in such notice shall survive the Survival Date until such claim is fully and finally resolved. The representations and warranties of limitationsBuyer and Merger Sub contained in this Agreement, (c) or in any non-compete agreement of the Related Agreements, certificate or other instrument delivered pursuant hereto to this Agreement, shall terminate at the Closing. All of the covenants and other agreements of Buyer and Merger Sub shall terminate and expire at and as of the Effective Time; provided, however, that notwithstanding the foregoing, the covenants and other agreements of Buyer or the Surviving Corporation set forth in this Agreement, or in any certificate or other instrument required to be delivered under or pursuant to this Agreement or in connection with the transactions contemplated hereby, that contemplate performance following the Closing and the Effective Time shall survive the Closing until and the expiration of the duration of such covenant not to compete, Effective Time and (d) any representation, warranty, covenant or agreement contained herein shall remain in full force and any Liabilities of Seller with respect thereto relating to Medicare, Medicaid or third party payors shall survive until the later of the third anniversary of effect following the Closing Date or and the conclusion of any audit or review commenced within such three-year periodEffective Time in accordance with their respective terms.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Tibco Software Inc)

Survival of Representations and Warranties. Each of the representations and warranties made by the Sellers and Buyer in this Agreement or pursuant hereto shall survive the closing of the transactions contemplated hereby for a period of two (2) years following the Closing Date; PROVIDED, HOWEVER, that (i) the representations and warranties set forth in SECTION 3.1, SECTION 3.2, SECTION 3.3, the first or last sentence of SECTION 4.1, or in SECTION 4.2, SECTION 4.3, SECTION 4.4, SECTION 4.5, and the first sentence of SECTION 4.14 shall survive indefinitely, and (ii) the representations and warranties set forth in SECTION 4.13, SECTION 4.15, and SECTION 4.18 shall expire at the time the latest applicable statute of limitations expires for the enforcement by an applicable Governmental Authority or any other Person of any remedy with respect to a violation of or the subject matter covered by such representations and warranties. No claim for the recovery of any Buyer Indemnifiable Damages or Sellers Indemnifiable Damages with respect to the representations and warranties in this Agreement may be asserted by any of the parties after such representations and warranties shall expire in accordance with the terms of this Agreement; PROVIDED, HOWEVER, that claims for Buyer Indemnifiable Damages or Sellers Indemnifiable Damages first asserted within the applicable period shall not thereafter be barred. Notwithstanding any right Knowledge of Buyer or Seller fully to investigate the affairs of Buyer or Sellerfacts, and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller each party shall have the right to fully rely fully upon on the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer other parties contained in this Agreement, or listed or disclosed on any Schedule hereto Agreement or in any instrument other documents or document papers delivered in connection with or pursuant to any of the foregoingherewith. All such representations, warranties, covenants and agreements shall survive the execution and delivery of this Agreement and the Closing hereunder for a period of two (2) years after the Closing Date, except that (a) any Each representation, warranty, covenant or and agreement of the parties contained in Sections 3.1 and 4.2 hereof shall survive the execution and delivery of this Agreement and the Closing hereunder without limitation, (b) any is independent of each other representation, warranty, covenant or agreement related to Taxes shall survive the execution and delivery of this Agreement and the Closing hereunder until the expiration of the applicable statute of limitations, (c) any non-compete agreement delivered pursuant hereto shall survive the Closing until the expiration of the duration of such covenant not to compete, and (d) any representation, warranty, covenant or agreement contained herein and any Liabilities of Seller with respect thereto relating to Medicare, Medicaid or third party payors shall survive until the later of the third anniversary of the Closing Date or the conclusion of any audit or review commenced within such three-year periodagreement.

Appears in 1 contract

Samples: Asset Purchase Agreement (Proxymed Inc /Ft Lauderdale/)

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Survival of Representations and Warranties. Notwithstanding any right The representations and warranties of Buyer or Seller fully to investigate the affairs of Buyer or Seller, and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer Parties contained in this Agreement, or listed or disclosed on any Schedule hereto or in any instrument or document delivered in connection with or pursuant to any of the foregoing. All such representations, warranties, covenants and agreements Agreement shall survive the execution and delivery of this Agreement and the Closing hereunder for a period of two eighteen (218) years months after the Closing Date, except at which time the representations and warranties contained herein shall terminate; provided, however, that (a) any representation, warranty, covenant or agreement contained in Sections 3.1 the Fundamental Representations and 4.2 hereof Warranties shall survive the execution Closing and delivery remain in full force and effect indefinitely, and Sellers hereby waive any applicable statute of this Agreement and the Closing hereunder without limitationlimitations with respect thereto, (b) any representation, warranty, covenant or agreement related to Taxes the representations and warranties set forth in Section 4.12 (Tax Matters) shall survive the execution and delivery of this Agreement and Closing until the Closing hereunder until date that is sixty (60) days following the expiration of the applicable statute of limitations, at which time such representations and warranties shall terminate, (c) any non-compete agreement delivered pursuant hereto the Key Representations and Warranties shall survive the Closing until for a period of five (5) years, at which time the expiration of the duration of such covenant not to competeKey Representations and Warranties shall terminate, and (d) any representationthe representations and warranties set forth in Sections 4.27 (Environmental, warranty, covenant or agreement contained herein Health and any Liabilities of Seller with respect thereto relating to Medicare, Medicaid or third party payors Safety Matters) and 4.35 (No Fueling) shall survive until the later for a period of three (3) years, at which time such representations and warranties shall terminate. The covenants and other agreements of the third anniversary of Parties set forth herein shall survive the Closing Date until they are otherwise terminated, whether by their terms or as a matter of applicable law. Any action based on a breach of representations and warranties made herein must be brought on or before such representations and warranties terminate in accordance with the conclusion preceding sentence or forever be barred, regardless of any audit or review commenced within such three-year periodwhether a longer statute of limitations may exist by law.

Appears in 1 contract

Samples: Stock Purchase Agreement (American Tire Distributors Holdings, Inc.)

Survival of Representations and Warranties. Notwithstanding any right of Buyer or Seller fully to investigate If the affairs of Buyer or Seller, and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of SellerMerger is consummated, the Stockholder representations and Buyer warranties of the parties contained in this Agreement, or listed or disclosed on any Schedule hereto or in any instrument or document delivered in connection with or pursuant to any of the foregoing. All such representations, warranties, covenants and agreements Agreement shall survive the execution and delivery of this Agreement and the Closing hereunder Effective Time for a period of two twelve (212) years months after the Closing Effective Time and then shall terminate (the “Indemnity Termination Date”); provided, except however, that (a) any representation, warranty, covenant or agreement contained the representations and warranties of the Company set forth in Sections 3.1 (Organization and 4.2 hereof Qualification; Subsidiaries), 3.3 (other than the last sentence of Section 3.3) (Capitalization) and 3.4 (Authority) (collectively, the “Fundamental Representations”) shall survive the execution Effective Time and delivery remain in full force and effect until sixty (60) days following the expiration of this Agreement and the Closing hereunder without limitationapplicable statute of limitations. Notwithstanding the foregoing, if, at any time prior to the Indemnity Termination Date or, with respect to a Fundamental Representation, sixty (b60) any representation, warranty, covenant or agreement related to Taxes shall survive the execution and delivery of this Agreement and the Closing hereunder until days following the expiration of the applicable statute of limitations, (c) any non-compete agreement delivered pursuant hereto shall survive Indemnified Person delivers to the Closing until Stockholders’ Representative a Claim Notice as provided in Section 8.4.2 alleging a breach of any representation or warranty and asserting a claim for recovery under Section 8.2 based on such breach, then the expiration of representation or warranty underlying the duration of claim asserted in such covenant not to compete, and (d) any representation, warranty, covenant or agreement contained herein and any Liabilities of Seller with respect thereto relating to Medicare, Medicaid or third party payors notice shall survive until such time as such claim is fully and finally resolved. If the later Merger is consummated, all covenants of the third anniversary parties shall expire and be of no further force or effect as of Effective Time, except to the Closing Date extent such covenants provide that they are to be performed after the Effective Time; provided, however, that no such termination shall relieve any party hereto that has breached any covenant prior to such termination from liability for Damages incurred or suffered by another party to this Agreement. If the conclusion Merger is consummated, this Article 8 shall be the sole remedy to the parties for all claims other than (a) claims against any Company Stockholder with respect to his, her or its own fraud, willful misconduct or intentional breach or (b) claims seeking specific performance of any audit or review commenced within such three-year periodcovenants hereunder.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Tegal Corp /De/)

Survival of Representations and Warranties. Notwithstanding any right of Buyer or Seller fully to investigate All representations and warranties that are covered by the affairs of Buyer or Seller, indemnification obligations in Section 6.1(a) and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer contained in this Agreement, or listed or disclosed on any Schedule hereto or in any instrument or document delivered in connection with or pursuant to any of the foregoing. All such representations, warranties, covenants and agreements Section 6.2(a) shall (a) survive the execution Closing and delivery of this Agreement and (b) shall expire on September 30, 2005 (it being understood that the Closing hereunder for Buyer may recover from the Set-Off Amount on or before March 31, 2006, but only in the event a period of two (2) years after the Closing DateClaim Notice is given on or before September 30, 2005), except that (ai) the representations and warranties set forth in Sections 2.2, 2.3, 3.2 and 3.3 shall survive the Closing without limitation, and (ii) the representations and warranties set forth in Section 2.9 shall survive until 90 days following expiration of all applicable statutes of limitation (as such periods may be extended by regulatory or other enforcement action). If, and only if, an Indemnified Party delivers to an Indemnifying Party, before expiration of a representation or warranty, either a Claim Notice based upon a breach of such representation or warranty, or an Expected Claim Notice based upon a breach of such representation or warranty, then the applicable representation or warranty shall survive until, but only for purposes of, the resolution of the matter covered by such notice. If the legal proceeding or written claim with respect to which an Expected Claim Notice has been given is definitively withdrawn or resolved in favor of the Indemnified Party, the Indemnified Party shall promptly so notify the Indemnifying Party; and if the Indemnified Party has delivered a copy of the Expected Claim Notice to the Escrow Agent and Escrow Merger Consideration has been retained in escrow after the applicable Termination Date (as defined in the applicable Escrow Agreement) with respect to such Expected Claim Notice, the Indemnifying Party and the Indemnified Party shall promptly deliver to the Escrow Agent a written notice executed by both parties instructing the Escrow Agent to distribute such retained Escrow Merger Consideration to the Indemnifying Shareholders in accordance with the terms of such Escrow Agreement. The rights to indemnification set forth in this Article VI shall not be affected by (i) any investigation conducted by or on behalf of an Indemnified Party or any knowledge acquired (or capable of being acquired) by an Indemnified Party, whether before or after the date of this Agreement or the Closing Date (including through supplements to the Disclosure Schedule permitted by Section 4.6), with respect to the inaccuracy or noncompliance with any representation, warranty, covenant or agreement contained in Sections 3.1 and 4.2 hereof shall survive obligation which is the execution and delivery subject of this Agreement and the Closing indemnification hereunder without limitation, or (bii) any representation, warranty, covenant or agreement related to Taxes shall survive the execution and delivery waiver by an Indemnified Party of this Agreement and the Closing hereunder until the expiration of the applicable statute of limitations, (c) any non-compete agreement delivered pursuant hereto shall survive the Closing until the expiration of the duration of such covenant not to compete, and (d) any representation, warranty, covenant or agreement contained herein and any Liabilities of Seller with respect thereto closing condition relating to Medicare, Medicaid or third party payors shall survive until the later accuracy of the third anniversary of the Closing Date representations and warranties or the conclusion performance of any audit or review commenced within such three-year periodcompliance with agreements and covenants.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Avid Technology Inc)

Survival of Representations and Warranties. Notwithstanding any right of Buyer or Seller fully to investigate the affairs of Buyer or SellerThe representations and warranties, and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer contained in this Agreement, or listed or disclosed on any Schedule hereto or in any instrument or document delivered in connection with or pursuant parties to any of the foregoing. All such representations, warranties, covenants and agreements shall survive the execution and delivery of this Agreement and the Closing hereunder for a period of two (2) years after be performed prior to the Closing Date, except that (a) set forth in this Agreement and in any representation, warranty, covenant or agreement contained certificates delivered at the Closing in Sections 3.1 and 4.2 hereof connection with this Agreement shall survive the execution and delivery Closing until the eighteen (18) month anniversary of this Agreement and the Closing hereunder without limitationDate (the “Survival Date”) and shall thereafter be of no further force or effect; provided, however, that (bi) with respect to any representationLosses resulting from the breach of any representations or warranties contained in Section 3.8 (Taxes), warranty, covenant or agreement related to Taxes the Survival Date shall survive be the execution and delivery date of this Agreement and the Closing hereunder until the expiration of the applicable statute of limitations, (cii) with respect to any non-compete agreement delivered pursuant hereto Losses resulting from the breach of any representations and warranties contained in Section 3.9 (Employees and Employee Benefits) and Section 3.13 (Environmental Matters), the Survival Date shall be the third (3rd) anniversary of the Closing Date and (iii) with respect to any Losses resulting from the breach of any representations or warranties contained in Section 3.2(a) (Authority), Section 3.3 (Capitalization), Section 3.5(a) (Personal Property), Section 3.18 (Brokers or Finders), Section 4.1 (Organization of Buyer), Section 4.2(a) (Authority) and Section 4.4 (Brokers or Finders), the Survival Date shall be indefinite (the representations listed in clauses (i) and (iii) being the “Fundamental Representations”). Notwithstanding the foregoing, any covenants of any party which by their terms are to be performed or observed on or following the Closing shall survive the Closing until fully performed or observed in accordance with their terms. Except as expressly provided in the immediately preceding sentence, (a) any claim for indemnification made hereunder before the Survival Date of such claim will not terminate before final determination and satisfaction of such claim, and (b) no claim for indemnification hereunder may be made after the expiration of the duration of such covenant not to compete, and (d) any representation, warranty, covenant or agreement contained herein and any Liabilities of Seller with respect thereto relating to Medicare, Medicaid or third party payors shall survive until the later of the third anniversary of the Closing Date or the conclusion of any audit or review commenced within such three-year periodapplicable Survival Date.

Appears in 1 contract

Samples: Purchase Agreement (Avery Dennison Corp)

Survival of Representations and Warranties. Notwithstanding any right The representations and warranties of Buyer or Seller fully to investigate the affairs of Buyer or Seller, and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer parties hereto contained in this Agreement, or listed or disclosed on any Schedule hereto or in any instrument or document delivered in connection with or pursuant to any of the foregoing. All such representations, warranties, covenants and agreements Agreement shall survive the execution and delivery of this Agreement and the Closing hereunder for a period of two eighteen (218) years full calendar months after the Closing DateClosing, except that (ai) any representation, warranty, covenant or agreement the representations and warranties of Seller contained in Sections 3.1 3.01(a), 3.01(c), 3.02, 3.03, 3.04, 3.05 (clause (a) only), 3.20 and 4.2 hereof 3.22 (collectively, the “Seller’s Fundamental Representations”), and the representations and warranties of Purchaser and the Parents contained in Sections 4.01 and 4.03 (clause (a) only) (the “Purchaser’s Fundamental Representations”) shall survive the execution and delivery of this Agreement and the Closing hereunder without limitation, (b) any representation, warranty, covenant or agreement related to Taxes shall survive the execution and delivery of this Agreement and the Closing hereunder until the expiration of the applicable statute of limitations, (cii) any non-compete agreement delivered pursuant hereto the representations and warranties of Seller contained in Section 3.17 shall survive the Closing until the expiration of the duration applicable statutes of such covenant not limitation with respect to compete, the underlying subject matter thereof and (diii) any representation, warranty, covenant or agreement contained herein the representations and any Liabilities warranties of Seller with respect thereto relating to Medicare, Medicaid or third party payors contained in Section 3.13 shall survive until the later of the third second anniversary of the Closing Date Date; provided, that any claim made with reasonable specificity by the party seeking to be indemnified within the time periods set forth in this Section 8.01 shall survive until such claim is finally and fully resolved. All covenants and agreements contained herein shall remain in full force and effect for a period of two years following the Closing, except (i) for those covenants and agreements that by their terms are to be performed in whole or in part after the Closing, which shall remain in full force and effect for a period equal to the later of (A) two (2) years after the Closing and (B) two (2) years following the expiration of the term set forth in such covenant or agreement or the conclusion date by which such covenant or agreement is required to be performed in full (as applicable), (ii) those covenants and agreements set forth in Section 5.16 shall survive until the expiration of the applicable statutes of limitation with respect to the underlying subject matter thereof and (iii) those covenants and agreements set forth in Sections 5.23 and 5.28 shall survive indefinitely; provided, however, that any audit or review commenced claim made with reasonable specificity by the party seeking to be indemnified within the time periods set forth in this Section 8.01 shall survive until such three-year periodclaim is finally and fully resolved.

Appears in 1 contract

Samples: Employment Agreement (Mack Cali Realty L P)

Survival of Representations and Warranties. Notwithstanding any right of Buyer or Seller fully to investigate All representations and warranties that are covered by the affairs of Buyer or Seller, indemnification agreements in Section 7.1(a) and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer contained in this Agreement, or listed or disclosed on any Schedule hereto or in any instrument or document delivered in connection with or pursuant to any of the foregoing. All such representations, warranties, covenants and agreements Section 7.2(a) shall (a) survive the execution Closing and delivery of this Agreement and (b) shall expire on the Closing hereunder for a period of two date one (21) years after year following the Closing Date, except that (ai) any representation, warranty, covenant or agreement contained the representations and warranties set forth in Sections 2.1, 2.2, 3.1 and 4.2 hereof shall survive the execution and delivery of this Agreement and the Closing hereunder without limitation, (b) any representation, warranty, covenant or agreement related to Taxes shall survive the execution and delivery of this Agreement and the Closing hereunder until the expiration of the applicable statute of limitations, (c) any non-compete agreement delivered pursuant hereto 3.2 shall survive the Closing until the expiration of the duration of such covenant not to compete, without limitation and (dii) any representation, warranty, covenant or agreement contained herein the representations and any Liabilities of Seller with respect thereto relating to Medicare, Medicaid or third party payors warranties set forth in Sections 2.8 and 2.16 shall survive until thirty (30) days following expiration of all statutes of limitation applicable to the later matters referred to therein. If an Indemnified Party delivers to an Indemnifying Party, before expiration of a representation or warranty, either a Claim Notice based upon a breach of such representation or warranty, or an Expected Claim Notice based upon a breach of such representation or warranty, then the applicable representation or warranty shall survive until, but only for purposes of, the resolution of the third anniversary matter covered by such notice. If the legal proceeding or written claim with respect to which an Expected Claim Notice has been given is definitively withdrawn or resolved in favor of the Indemnified Party, the Indemnified Party shall promptly so notify the Indemnifying Party; and if the Indemnified Party has delivered a copy of the Expected Claim Notice to the Escrow Agent and Escrow Stock have been retained in escrow after the Termination Date (as defined in the Escrow Agreement) with respect to such Expected Claim Notice, the Indemnifying Party and the Indemnified Party shall promptly deliver to the Escrow Agent a written notice executed by both parties instructing the Escrow Agent to disburse such retained Escrow Stock to Parent in accordance with the terms of the Escrow Agreement. The rights to indemnification set forth in this Article VII shall not be affected by (i) any investigation conducted by or on behalf of an Indemnified Party or (ii) any waiver by an Indemnified Party of any closing condition relating to the accuracy of any representations and warranties or the performance of or compliance with agreements and covenants, provided notwithstanding clauses (i) and (ii) above, no Indemnified Party shall be entitled to indemnification under this Article VII for or in respect of any inaccuracy in any representation or warranty that is shown by clear and convincing evidence to have been actually known to such Indemnified Party as of the Closing Date or the conclusion of any audit or review commenced within such three-year periodDate.

Appears in 1 contract

Samples: Merger Agreement (Fonix Corp)

Survival of Representations and Warranties. Notwithstanding any right (a) The representations and warranties of Buyer or Seller fully to investigate the affairs of Buyer or Seller, and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer Sellers contained in this Agreement, or listed or disclosed on any Schedule hereto or in any instrument or document delivered in connection with or pursuant to any of the foregoing. All such representations, warranties, covenants and agreements shall survive the execution and delivery of this Agreement and the Closing hereunder for a period of two (2) years after the Closing Date, except that (a) any representation, warranty, covenant or agreement contained in Sections 3.1 and 4.2 hereof Shareholders’ Agreement shall survive the execution Closing until the second anniversary of the Closing; provided, however, that (i) the representations and delivery warranties made pursuant to Sections 3.01, 3.02, 3.03, 3.04, Section 3.06 and Section 3.07 shall survive indefinitely, (ii) the representations and warranties made pursuant to Section 3.26 (Taxes) matters shall survive until 120 days after the expiration of this Agreement and the relevant statute of limitations for the Tax liability in question, (iii) insofar as any claim is made by the Purchaser for the breach of any representation or warranty of the Sellers contained herein, which claim arises out of allegations of personal injury or property damage suffered by any third party on or prior to the Closing hereunder without limitationor attributable to products or Inventory sold or shipped, (b) any representationor activities or omissions that occur, warrantyon or prior to the Closing, covenant or agreement related to Taxes shall such representations and warranties shall, for purposes of such claim by the Purchaser, survive the execution and delivery of this Agreement and the Closing hereunder until 30 days after the expiration of the applicable statute of limitationslimitations governing such claims, and (civ) insofar as any non-compete agreement delivered pursuant hereto shall claim is made by the Purchaser for the breach of any representation or warranty of any Seller contained herein relating to environmental matters, such representations and warranties shall, for purposes of such claims by the Purchaser, survive the Closing until the tenth anniversary of the Closing. Except as provided for in Section 8.02 and Section 8.03, neither the period of survival nor the liability of the Sellers with respect to the Sellers’ representations and warranties shall be reduced by any investigation made at any time by or on behalf of the Purchaser. If written notice of a claim has been given prior to the expiration of the duration of such covenant not applicable representations and warranties by the Purchaser to competethe Sellers, then the relevant representations and (d) any representation, warranty, covenant or agreement contained herein and any Liabilities of Seller with respect thereto relating to Medicare, Medicaid or third party payors warranties shall survive as to such claim, until the later of the third anniversary of the Closing Date or the conclusion of any audit or review commenced within such three-year periodclaim has been finally resolved.

Appears in 1 contract

Samples: Share Purchase Agreement (Solar Power, Inc.)

Survival of Representations and Warranties. Notwithstanding any right of Buyer or The representations and warranties set forth in this Agreement (other than the Seller fully to investigate Fundamental Representations and the affairs of Buyer or Seller, and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of SellerPurchaser Fundamental Representations) (collectively, the Stockholder and Buyer contained in this Agreement, or listed or disclosed on any Schedule hereto or in any instrument or document delivered in connection with or pursuant to any of the foregoing. All such representations, warranties, covenants and agreements “Business Representations”) shall survive the execution and delivery of this Agreement and the Closing hereunder for a period of two (2) years after the Closing Date, except that Date at which time all such representations and warranties shall then terminate and no claim shall thereafter be made by any Party in respect thereof. The representations and warranties set forth in (a) any representationSection 3.1 (Existence; Good Standing), warrantySection 3.2 (Authorization), covenant or agreement contained in Sections 3.1 Section 3.3 (Enforceability), Section 3.4 (No Conflicts), Section 3.7 (No Liens; Title to Purchased Receivables), Section 3.11 (Brokers’ Fees), Section 3.15 (Intellectual Property Matters) and 4.2 hereof shall survive Section 3.16 (License Agreement) (collectively, the execution “Seller Fundamental Representations”) and delivery of this Agreement and the Closing hereunder without limitation, (b) any representationSection 4.1 (Existence; Good Standing), warrantySection 4.2 (Authorization), covenant or agreement related to Taxes shall survive Section 4.3 (Enforceability), Section 4.4 (No Conflicts), and Section 4.8 (Broker’s Fees) (collectively, the execution and delivery of this Agreement and the Closing hereunder until the expiration of the applicable statute of limitations, (c“Purchaser Fundamental Representations”) any non-compete agreement delivered pursuant hereto shall survive the Closing until the expiration of date that is six (6) years after the duration of Closing Date at which time all such representations and warranties shall then terminate and no claim shall thereafter be made by any Party in respect thereof. The covenants and agreements contained in this Agreement that are to be performed prior to the Closing shall survive only until the Closing at which time all such covenants and agreements shall then terminate, and thereafter no claim shall be made by any Party in respect thereof. The covenants and agreements contained in this Agreement that are to be performed (in whole or in part) after the Closing shall survive the Closing in accordance with their terms and until fully performed at which time each such covenant not to competeand agreement shall then terminate, and (d) thereafter no claim shall be made by any representationParty in respect thereof. Notwithstanding any provision to the contrary herein, in the event notice of a claim for indemnification hereunder is given within the applicable survival period, the representation or warranty, covenant or agreement contained herein and any Liabilities that is ​ the subject of Seller such indemnification claim (whether or not formal legal action shall have been commenced based upon such claim) shall survive with respect thereto relating to Medicare, Medicaid or third party payors such claim until such claim is finally resolved in accordance with the terms of Article 7. The foregoing limitations shall survive until not apply in the later event of any fraud by any Party. Each of the third anniversary Parties acknowledges and agrees that this Section 9.1 is expressly intended to limit or expand (as applicable) otherwise applicable statute of limitations under Applicable Law, and waives the Closing Date statute of limitations under such Applicable Law to the extent such statute of limitations period exceeds or is less than the conclusion of any audit or review commenced within such three-year periodperiods described in this Section 9.1.

Appears in 1 contract

Samples: Royalty Purchase Agreement (uniQure N.V.)

Survival of Representations and Warranties. The representations and warranties made by Seller and each Shareholder in this Agreement shall survive the Closing and shall continue in effect until May 31, 2007, except (i) that the representations and warranties set forth in Sections 4.1, 4.2, 4.3, 4.4, 4.7, 4.11 shall survive until the sixth anniversary of the Closing Date, (ii) the representations and warranties set forth in Sections 4.10, 4.19 and 4.20 shall survive until expiration of the applicable statute of limitations with respect to such matters (and any extensions thereof) and (iii) as to the breach of any representation or warranty as to which a claim is submitted in writing by a Purchaser Indemnitee (as defined herein) within such period and identified as a claim for indemnification pursuant to this Agreement or any Related Document, in which case such representation and warranty shall survive until the claim is resolved. Notwithstanding anything to the contrary contained in this Agreement, the obligations of the Seller and Shareholders to indemnify any Purchaser Indemnitee for (a) Excluded Liabilities under Section 9.2(c) or (b) for Losses arising out of or resulting from any fraud or intentional misrepresentation shall survive indefinitely and shall not be limited by any applicable statute of limitations. The representations and warranties of the Purchaser shall terminate as of May 31, 2007. Notwithstanding the right of Buyer or Seller fully Purchaser to investigate the affairs Business, assets and financial condition of Buyer or Seller, and notwithstanding any knowledge obtained or obtainable by Purchaser as a result of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have Purchaser has the unqualified right to rely fully upon upon, and have relied upon, each of the representations, warranties, covenants representations and agreements of warranties made by the Seller and Shareholders in this Agreement or pursuant hereto. Seller, the Stockholder and Buyer contained in this Agreement, or listed or disclosed on any Schedule hereto or in any instrument or document delivered in connection with or pursuant to any of the foregoing. All such representations, warranties, covenants and agreements shall survive the execution and delivery of this Agreement each Shareholder and the Closing Purchaser acknowledges and agrees that the representations and warranties made hereunder by Seller and Shareholders are bargained for a period of two (2) years after the Closing Date, except that (a) any representation, warranty, covenant or agreement contained in Sections 3.1 and 4.2 hereof shall survive the execution and delivery of this Agreement and the Closing hereunder without limitation, (b) any representation, warranty, covenant or agreement related to Taxes shall survive the execution and delivery of this Agreement and the Closing hereunder until the expiration of the applicable statute of limitations, (c) any non-compete agreement delivered pursuant hereto shall survive the Closing until the expiration of the duration of such covenant not to compete, and (d) any representation, warranty, covenant or agreement contained herein and any Liabilities of Seller with respect thereto relating to Medicare, Medicaid or third party payors shall survive until the later of the third anniversary of the Closing Date or the conclusion of any audit or review commenced within such three-year periodassurances.

Appears in 1 contract

Samples: Asset Purchase Agreement (Merisel Inc /De/)

Survival of Representations and Warranties. Notwithstanding any right investigation conducted at any time with regard thereto by or on behalf of Buyer Seller or Seller fully to investigate the affairs of Buyer or Seller, and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of SellerPurchaser, the Stockholder representations and Buyer warranties of the parties hereto contained in this Agreement, or listed or disclosed on any Schedule hereto Agreement or in any instrument Exhibit or document delivered in connection with or pursuant to any of the foregoing. All such representations, warranties, covenants and agreements Schedule hereto shall survive the execution and delivery of this Agreement Closing and the Closing hereunder consummation of the transactions contemplated hereby (and any examination or investigation by or on behalf of any party hereto); provided, however, that (i) the representations and warranties contained in Sections 3.1, 3.2, 3.3 and 3.6, and the related claims for a period indemnification, shall survive until the tenth anniversary of two (2) years after the Closing Date, except that ; (aii) any representation, warranty, covenant or agreement the representations and warranties contained in Sections 3.1 Section 3.8, and 4.2 hereof the related claims for indemnification, shall survive the execution and delivery of this Agreement and the Closing hereunder without limitation, until sixty (b60) any representation, warranty, covenant or agreement related to Taxes shall survive the execution and delivery of this Agreement and the Closing hereunder until days after the expiration of the applicable statute of limitations, (ciii) any non-compete agreement delivered pursuant hereto the representations and warranties contained in Section 3.18, and the related claims for indemnification, shall survive until the fifth anniversary of the Closing until the expiration of the duration of such covenant not to competeDate, and (div) any representationall other representations and warranties, warrantyand related claims for indemnification, covenant shall survive until the second anniversary of the Closing Date. No investigation made by or agreement contained herein and any Liabilities on behalf of Purchaser with respect to Seller, or by or on behalf of Seller with respect thereto relating to MedicarePurchaser, Medicaid shall be deemed to affect Purchaser's or third party payors Seller's, as the case may be, reliance on the representations, warranties or covenants made by Seller or Purchaser, as the case may be, contained in this Agreement and shall survive until not be a waiver of Purchaser's or Seller's, as the later of the third anniversary of the Closing Date or the conclusion of any audit or review commenced within such three-year periodcase may be, rights to indemnity as provided herein.

Appears in 1 contract

Samples: Asset Purchase Agreement (Neoware Systems Inc)

Survival of Representations and Warranties. Notwithstanding any right The representations and warranties in Sections 2, 3 and 4 of Buyer or Seller fully to investigate the affairs of Buyer or Seller, and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer contained in this Agreement, or listed or disclosed on any Schedule hereto or in any instrument or document delivered in connection with or pursuant to any of the foregoing. All such representations, warranties, covenants and agreements Agreement shall survive the execution and delivery of this Agreement and the Closing hereunder for a period of two (2) years after one year following the Closing Date, Date except that (ai) any representation, warranty, covenant or agreement contained the representations and warranties in Sections 3.1 and 4.2 hereof Section 2M (Tax Matters) shall survive the execution and delivery of this Agreement and the Closing hereunder without limitation, (b) any representation, warranty, covenant or agreement related to Taxes shall survive the execution and delivery of this Agreement and the Closing hereunder until the expiration end of the applicable statute of limitations, and (cii) the representations and warranties contained in Sections 2A (Organization) (other than the last sentence thereof), 2B (Capital Stock and Related Matters), 2D (Authorization; No Breach) (other than the second sentence thereof), 3A (Power and Authority), 3B (Authorization; No Breach) (other than the second sentence thereof), 3C (Title to Shares), 4A (Organization), and 4B (Authorization; No Breach) (other than the second sentence thereof) shall survive forever; provided, that any non-compete agreement delivered pursuant hereto representation or warranty in respect of which indemnity may be sought under Section 6B, and the indemnity with respect thereto, shall survive the Closing until the expiration time at which it would otherwise terminate pursuant to this Section 6A if written notice of the duration inaccuracy or breach or potential inaccuracy or breach thereof giving rise to such right or potential right of indemnity shall have been given to the Party against whom such covenant not indemnity may be sought prior to competesuch time. Such written notice is deemed to have been given to Sellers with regard to the matters set forth on Schedule 6A hereto. The representations and warranties in Section 2, 3 and (d) any representation, warranty, covenant or agreement contained herein and any Liabilities 4 of Seller with respect thereto relating to Medicare, Medicaid or third party payors this Agreement shall survive until for the later periods set forth in this Section 6A and shall in no event be affected by any investigation, inquiry or examination made for or on behalf of the third anniversary of the Closing Date any Party, or the conclusion Knowledge of any audit Party's officers, directors, shareholders, employees or review commenced within such three-year periodagents or the acceptance by any Party of any certificate or opinion hereunder.

Appears in 1 contract

Samples: Share Purchase Agreement (Gerber Childrenswear Inc)

Survival of Representations and Warranties. Notwithstanding any right of Buyer or The representations and warranties made by Seller fully to investigate the affairs of Buyer or Seller, and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer contained in this Agreement, or listed or disclosed on any Schedule hereto or in any instrument or document delivered in connection with or pursuant to any of the foregoing. All such representations, warranties, covenants and agreements Agreement that constitute (i) General Representations shall survive the execution Closing and delivery expire at 5:00 p.m., Birmingham, Alabama time, on the eighteen (18) month anniversary date of this Agreement the Closing Date (the “Expiration Date”), (ii) Fundamental Representations (other than the Tax Representations and the representations in Sections 3.11 and 3.14) shall survive the Closing hereunder for a period and expire at 5:00 p.m., Birmingham, Alabama time, on the six (6) year anniversary date of two (2) years after the Closing Date, except that (aiii) any representation, warranty, covenant or agreement the representations of the Seller contained in Sections 3.1 3.11 and 4.2 hereof 3.14 shall survive the execution Closing and delivery expire at 5:00 p.m., Birmingham, Alabama time, on the three (3) year anniversary date of this Agreement and the Closing hereunder without limitation, Date and (biv) any representation, warranty, covenant or agreement related to Taxes Tax Representations shall survive until the execution and delivery of this Agreement and the Closing hereunder until thirtieth (30th) day following the expiration of the applicable statute of limitations, and in each case Buyer shall have no right to assert any claim or seek indemnity (cand no Seller Related Party shall have any liability or obligation) in respect of a breach of any non-compete agreement delivered pursuant hereto representation after the applicable expiration time of such representation; provided that, if at any time prior to the applicable expiration time, Buyer delivers to the Seller a notice asserting the existence of a breach of any of the representations and warranties made by Seller (and setting forth in reasonable detail the basis for Buyer’s determination that the breach exists and the amount of the Damages being claimed, in each case to the extent then known, as a result of such breach) and asserting a claim for recovery under this Section 7.01 based on the breach, then the claim asserted in the notice shall survive the Closing expiration date until such time as the expiration of the duration of such covenant not to compete, claim is fully and (d) any representation, warranty, covenant or agreement contained herein and any Liabilities of Seller with respect thereto relating to Medicare, Medicaid or third party payors shall survive until the later of the third anniversary of the Closing Date or the conclusion of any audit or review commenced within such three-year periodfinally resolved.

Appears in 1 contract

Samples: Asset Purchase Agreement (Peabody Energy Corp)

Survival of Representations and Warranties. Notwithstanding any right of Buyer or Seller fully to investigate the affairs of Buyer or Seller, All representations and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer contained warranties set forth in this Agreement, or listed or disclosed on any the Disclosure Schedule hereto or in any certificate or instrument or document delivered in connection with or pursuant to any of the foregoing. All such representationsthis Agreement, warranties, covenants and agreements shall survive the execution and delivery of this Agreement and the Closing hereunder for a period of two twelve (212) years after months following the Closing Date; provided, except however, that (a) any representation, in the event of fraud or willful breach of a representation or warranty, covenant such representation or agreement warranty shall survive indefinitely; provided, further, that the representations and warranties contained in Sections 3.1 Section 3.2 (Authorization), Section 3.3 (Capitalization), Section 3.12 (Title of Assets, Absence of Liens and Encumbrances), Section 4.2 (Authorization) and Section 5.3 (Authority) hereof shall survive indefinitely and provided further that the execution representations and delivery of this Agreement warranties contained in Section 3.11 (Tax Matters), Section 3.17 (Employee Matters) and the Closing hereunder without limitation, Section 3.19 (bEnvironmental Matters) any representation, warranty, covenant or agreement related to Taxes shall survive the execution and delivery of this Agreement and the Closing hereunder until the expiration date that is thirty (30) days after the termination of the applicable statute of limitationslimitations applicable to the underlying subject matter of such representations and warranties. The representations and warranties described in Sections 3.2, (c) any non-compete agreement delivered pursuant hereto 3.3, 3.11, 3.12, 3.17, 3.19, 4.2 and 5.3 shall hereinafter collectively be referred to as “Fundamental Representations.” The covenants and other agreements set forth in this Agreement shall terminate at the Closing, except for covenants and other agreements which by their explicit terms contemplate or require performance following the Closing, each of which shall survive without limitation until complete performance of the terms thereof, provided that the covenants and other agreements set forth in Section 7.1 (Confidentiality) shall survive for a period of five (5) years following the Closing until the expiration of the duration of such covenant not to compete, and (d) any representation, warranty, covenant or agreement contained herein and any Liabilities of Seller with respect thereto relating to Medicare, Medicaid or third party payors shall survive until the later of the third anniversary of the Closing Date or the conclusion of any audit or review commenced within such three-year periodDate.

Appears in 1 contract

Samples: Stock Purchase Agreement (CAI International, Inc.)

Survival of Representations and Warranties. Notwithstanding any right of Buyer The representations, warranties, covenants and agreements made by Seller and the Shareholders hereunder, except as they may be fully performed prior to or Seller at the Closing, shall survive Closing and shall thereafter terminate and expire on April 30, 1998 and shall be fully to investigate enforceable by Buyer, its successors and assigns, at law or in equity, against the affairs of Buyer or Shareholders and Seller, their successors and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigationassigns; provided, Buyer and Seller have the right to rely fully upon however, that the representations, warranties, covenants and agreements made in Sections 2.04 (with respect to title matters), 2.07 (with respect to non infringement of Seller, third party intellectual property rights and the Stockholder validity and Buyer contained in this Agreement, or listed or disclosed on any Schedule hereto or in any instrument or document delivered in connection with or pursuant to any enforceability of the foregoing. All such representationspatents included in the Assets), warranties2.08, covenants 2.10, 2.13 and agreements 2.15 shall survive the execution and delivery of this Agreement and the Closing hereunder for a period of two (2) years after the Closing Date, except that (a) any representation, warranty, covenant or agreement contained in Sections 3.1 and 4.2 hereof shall survive the execution and delivery of this Agreement and the Closing hereunder without limitation, (b) any representation, warranty, covenant or agreement related to Taxes shall survive the execution and delivery of this Agreement and the Closing hereunder until the expiration of the applicable statute of limitations, limitations (c) any non-compete agreement delivered pursuant hereto except in respect to covenants to be performed after Closing which shall survive in accordance with the Closing until the expiration terms thereof). All of the duration of such covenant not representations, warranties, covenants and agreements made by Buyer hereunder, except as they may be fully performed prior to competeor at the Closing, shall survive Closing and (d) any shall thereafter terminate and expire on April 30, 1998 except in respect to covenants to be performed after Closing which shall survive in accordance with the terms thereof and shall be fully enforceable by the Shareholders and Seller, their respective successors and assigns, at law or in equity, against Buyer and its successors and assigns. Any representation, warranty, covenant or agreement contained herein and any Liabilities of Seller scheduled to expire pursuant to this Section 8.01 shall not expire with respect thereto relating to Medicare, Medicaid or third party payors shall survive until the later of the third anniversary of the Closing Date any claim received by Seller or the conclusion of any audit or review commenced within such three-year periodShareholders prior to the scheduled expiration date.

Appears in 1 contract

Samples: Asset Purchase Agreement (Kinetic Concepts Inc /Tx/)

Survival of Representations and Warranties. Notwithstanding any right The ------------------------------------------ representations and warranties of Buyer or Seller fully to investigate the affairs of Buyer or Seller, and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer parties hereto contained in this Agreement, or listed or disclosed on any Schedule hereto Agreement or in any instrument writing delivered pursuant hereto or document delivered in connection with or pursuant to any of at the foregoing. All such representations, warranties, covenants and agreements Closing shall survive the execution and delivery of this Agreement and the Closing hereunder for a period and the consummation of two the transactions contemplated hereby (2and any examination or investigation by or on behalf of any party hereto) years until the date 18 months after the Closing DateDate (except for claims in respect thereof pending at such time, except which shall survive until finally resolved or settled); provided, however, that (a) any representation, warranty, covenant or agreement the representations -------- ------- and warranties contained in Sections 3.1 3.1, 3.2, 3.3, 3.11, 3.13 (in so far as it applies to Environmental Matters), 5.1, 5.2, 5.3 and 4.2 hereof 5.4 shall survive the execution and delivery of this Agreement and the Closing hereunder without limitation, (b) any representation, warranty, covenant or agreement related to Taxes shall survive the execution and delivery of this Agreement and the Closing hereunder until the expiration of the applicable statute of limitations, (c) any non-compete agreement delivered pursuant hereto shall survive the Closing until the expiration of the duration of such covenant not . No Action may be commenced with respect to compete, and (d) any representation, warranty, covenant or agreement contained herein and in this Agreement, or in any Liabilities writing delivered pursuant hereto, unless written notice, setting forth in reasonable detail the claimed breach thereof, shall be delivered pursuant to Section 11 to the party or parties against whom liability for the claimed breach is charged on or before the termination of Seller the survival period specified in Section 10 for such representation, warranty, covenant or agreement. In the event that the Shareholders shall be required to indemnify the Buyer with respect thereto relating to Medicarethis Agreement, Medicaid the Shareholders may elect to pay such indemnified amounts in cash or third party payors shall survive until in shares of NDI Common Stock (at fair market value on the later date of the third anniversary of the Closing Date or the conclusion of any audit or review commenced within such three-year periodpayment).

Appears in 1 contract

Samples: Agreement and Plan of Merger (Advanced Nutraceuticals Inc)

Survival of Representations and Warranties. Notwithstanding any right All of Buyer or Seller fully to investigate the affairs of Buyer or Seller, Company's representations and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer contained warranties in this Agreement, or listed or disclosed on any Schedule hereto or Agreement (other than the representations set forth in any instrument or document delivered in connection with or pursuant Section 2.8 (relating to any of the foregoing. All such representations, warranties, covenants and agreements Taxes) which shall survive the execution and delivery of this Agreement and the Closing hereunder for a period of two (2) years after the Closing Date, except that (a) any representation, warranty, covenant or agreement contained in Sections 3.1 and 4.2 hereof shall survive the execution and delivery of this Agreement and the Closing hereunder without limitation, (b) any representation, warranty, covenant or agreement related to Taxes shall survive the execution and delivery of this Agreement and the Closing hereunder until the expiration of the applicable relevant statute of limitations, (c) or in any non-compete agreement instrument delivered pursuant hereto to this Agreement (each as modified by the Company Schedules) shall survive the Closing Merger and continue until 5:00 p.m., California time, on the expiration of the duration of such covenant not to compete, and date six (d6) any representation, warranty, covenant or agreement contained herein and any Liabilities of Seller with respect thereto relating to Medicare, Medicaid or third party payors shall survive until the later of the third anniversary of months following the Closing Date (the "EXPIRATION DATE"). Subject to the following requirements, the Escrow Fund (as defined in Section 7.2(a) below) shall be in existence immediately following the Effective Time and shall terminate at 5:00 p.m., California time, on the date which is (x) six (6) months following the Closing Date with respect to the General Escrow Amount and (y) three (3) months following the Closing Date with respect to the Special Escrow Amount (except that if the 1999 Company Audit is completed and all disputes, if any, with respect to Net Revenues are resolved sooner than such three (3) month period, the Special Escrow Amount shall terminate upon completion of such 1999 Company Audit or, as the case may be, resolution of such disputes) (each, an "ESCROW PERIOD"); provided that the applicable Escrow Period shall not terminate with respect to any such amount, subject to the objection of the Stockholder Agent (as defined below) and the subsequent resolution or arbitration of the conclusion matter in the manner provided in Section 1.6(h) (with respect to the Special Escrow Amount) or Section 7.2(e) (with respect to the General Escrow Amount), to satisfy any pending claims existing prior to the termination of such Escrow Period specified in any audit or review commenced within Officer's Certificate (as defined in Section 7.2(c) below) delivered to the Escrow Agent prior to termination of such three-year periodEscrow Period; provided further that each Escrow Fund will terminate in full upon final and complete resolution of all disputed matters in respect thereto. As soon as all such claims have been resolved, the Escrow Agent shall transfer to the stockholders of the Company, pursuant to written instructions by Stockholder Representative, the remaining portion of the Escrow Fund not required to satisfy such claims.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (New Era of Networks Inc)

Survival of Representations and Warranties. Notwithstanding any right of Buyer All representations and warranties made by the Sellers or Seller fully to investigate the affairs of Buyer or Seller, and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer contained in this Agreement, or listed or disclosed on any Schedule hereto or in any instrument or document delivered in connection with or pursuant to any of the foregoing. All such representations, warranties, covenants and agreements Founders herein shall survive the execution and delivery of this Agreement until (i) March 31, 2018 if the Eligible Revenue during 2017 is determined pursuant to Section 2.3 to be at least $[ * ] (i.e., a delivery pursuant to Section 2.1(b)(iii) is made) and (ii) otherwise until March 31, 2019; provided, however, that (A) any claims for indemnification involving fraud or intentional misrepresentation or omission with intent to deceive shall survive until the Closing hereunder expiration of the statute of limitations applicable to such claims (and thereafter until resolved if a claim in respect thereof has been made prior to such date), (B) any claims for a period of two indemnification for Taxes (2including Specified Taxes) years shall survive until thirty (30) days after the Closing Dateexpiration of the statute of limitations applicable to such Taxes (including Specified Taxes) giving rise to such claims (and thereafter until resolved if a claim in respect thereof has been made prior to such date), except that (aC) any representationthe representations and warranties set forth in Sections 4.9 (Intellectual Property Rights), warranty4.14 (Compliance with Laws; Permits), covenant or agreement 4.15 (Regulatory Matters), 4.16 (Related Party Transactions) and 4.19 (Employee Benefit Plans) shall survive until the third (3rd) anniversary of the Effective Date (and thereafter until resolved if a claim in respect thereof has been made prior to such date); and (D) the representations and [*] = Confidential Treatment Requested. Certain confidential information contained in this document, marked by brackets, has been redacted and separately filed with the Securities and Exchange Commission. warranties set forth in Article III as well as Sections 3.1 4.1 (Organization, Good Standing, Corporate Power and Qualification), 4.2 hereof (Governmental Consents and Filings), 4.3 (Non-Contravention), 4.4 (Capitalization), 4.5 (Subsidiaries), 4.20 (Environmental, Zoning and Safety Laws), 4.21 (Taxes) and 4.22 (Foreign Corrupt Practices and International Trade Sanctions) shall survive until the later of the sixth (6th) anniversary of the Effective Date and thirty (30) days after the expiration of the applicable statute of limitations (and, in each instance, thereafter until resolved if a claim in respect thereof has been made prior to such date). The representations and warranties set forth in Article III as well as Sections 4.1 (Organization, Good Standing, Corporate Power and Qualification), 4.2 (Governmental Consents and Filings), 4.3 (Non-Contravention), 4.4 (Capitalization), 4.5 (Subsidiaries), 4.9 (Intellectual Property Rights), 4.14 (Compliance with Laws; Permits), 4.15 (Regulatory Matters), 4.16 (Related Party Transactions), 4.19 (Employee Benefit Plans), 4.20 (Environmental, Zoning and Safety Laws), 4.21 (Taxes) and 4.22 (Foreign Corrupt Practices and International Trade Sanctions) are each referred to herein as a “Fundamental Rep.” Notwithstanding the foregoing, in the event that an indemnification claim has been asserted by Buyer prior to the termination of an applicable survival period, such termination shall not cut-off Buyer’s right to pursue such claim as otherwise provided herein. All covenants and agreements made by the Sellers herein shall survive the execution and delivery of this Agreement and until (except as expressly set forth herein with respect to an earlier period) the Closing hereunder without limitation, later of (bx) any representation, warranty, covenant or agreement related to Taxes shall survive the execution and delivery of this Agreement and the Closing hereunder until thirty (30) days after the expiration of the applicable statute of limitationslimitations applicable thereto, (cy) any non-compete agreement delivered pursuant hereto shall survive the Closing until the expiration of the duration of such covenant not to compete, and sixth (d6th) any representation, warranty, covenant or agreement contained herein and any Liabilities of Seller with respect thereto relating to Medicare, Medicaid or third party payors shall survive until the later of the third anniversary of the Closing Effective Date or (z) until resolved if a claim in respect thereof has been made prior to the conclusion of any audit or review commenced within such three-year perioddate otherwise applicable.

Appears in 1 contract

Samples: Stock Purchase Agreement (Invitae Corp)

Survival of Representations and Warranties. Notwithstanding any right of Buyer or Seller fully to investigate the affairs of Buyer or Seller, and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of SellerExcept as set forth below, the Stockholder provisions of Sections 3.1 and Buyer contained in this Agreement, or listed or disclosed on any Schedule hereto or in any instrument or document delivered in connection with or pursuant to any of the foregoing. All such representations, warranties, covenants and agreements 3.2 shall survive the execution and delivery of this Agreement and the Closing hereunder for a period of two twelve (212) years after months (the Closing Date“General Survival Period”), except that (aand the provisions of Sections 3.2(a) any representation, warranty, covenant or agreement contained in Sections 3.1 through 3.2(f) and 4.2 hereof 3.2(n)(i) shall survive the execution Closing for six (6) years (the “Fundamental Survival Period”). Further, the provisions of Section 3.2(u) and delivery of this Agreement and the Closing hereunder without limitation, (b) any representation, warranty, covenant or agreement related to Taxes Section 7.18 shall survive the execution and delivery of this Agreement and the Closing hereunder until through a period ending sixty (60) days following the expiration of the applicable Tax statute of limitationslimitations (the “Statute of Limitations Survival Period” singularly and together with the General Survival Period and Fundamental Survival Period each, (c) a “Survival Period”). Notice of any non-compete agreement delivered pursuant hereto shall survive the Closing until claim as to a breach of a representation or warranty under this Section 3 must be made prior to the expiration of the duration applicable Survival Period (but if a Party does not know the exact details or parameters of the breach then its notice will suffice for all reasonably related aspects of the breach for any such claims if it reasonably and specifically identifies the primary aspect of the breach in question) or it shall be deemed a waiver of such covenant not Party’s right to compete, assert such claim. No claim for a breach of any of the provisions of Sections 3.1 and 3.2 shall be actionable or payable unless (a) written notice containing a description of the nature of such breach (as set forth in the immediately preceding sentence) shall have been given by the applicable Party prior to the expiration of the applicable Survival Period and (db) any representation, warranty, covenant or agreement contained herein and any Liabilities of Seller with respect thereto relating to Medicare, Medicaid or third party payors an action shall survive until have been commenced by the later applicable Party within forty-five (45) days after the termination of the third anniversary of the Closing Date or the conclusion of any audit or review commenced within such three-year periodapplicable Survival Period.

Appears in 1 contract

Samples: Contract of Purchase and Sale (Great Elm Group, Inc.)

Survival of Representations and Warranties. Notwithstanding any right The representations and warranties of Buyer or Seller fully to investigate the affairs of Buyer or Seller, and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer Parties contained in this Agreement, any certificate delivered pursuant hereto, or listed any Seller Document or disclosed on any Schedule hereto or in any instrument or document delivered in connection with or pursuant to any of the foregoing. All such representations, warranties, covenants and agreements shall Purchaser Document will survive the execution Closing through and delivery of this Agreement and including the Closing hereunder for a period of two date that is sixteen (216) years months after the Closing DateDate (the “General Survival Period”); provided, except however, that (a) any representation, warranty, covenant or agreement the Core Seller Representations (other than the representations and warranties of the Selling Parties contained in Sections 3.1 5.8 (Taxes) and 4.2 hereof shall 5.13 (Employee Benefits)) and the Core Purchaser Representations will survive the execution and delivery of this Agreement and Closing forever (in each case, the Closing hereunder without limitation“Survival Period”), (b) any representation, warranty, covenant or agreement related to Taxes the representations and warranties of the Selling Parties contained in Sections 5.8 (Taxes) and 5.13 (Employee Benefits) shall survive the execution and delivery of this Agreement and the Closing hereunder until expire on the expiration date of the applicable statute of limitations, and (c) any non-compete agreement delivered claim with respect to any fraudulent, intentional, or willful breach of any 41 representation will survive and can be made by a Purchaser Indemnified Party forever; provided, however, that any obligations under Sections 10.2(a)(i) and 10.2(b)(i) will not terminate with respect to any Losses as to which the Person to be indemnified will have given written notice to the indemnifying party in accordance with Section 10.3(a) before the termination of the applicable Survival Period. Notwithstanding anything to the contrary in this Section 10.1, the indemnification obligations pursuant hereto shall survive to this Article X will not terminate with respect to (A) any indemnification claim made by a Purchaser Indemnified Party or a Seller Indemnified Party, as the Closing until case may be, prior to the expiration of the duration applicable Survival Period until such claim is resolved or (B) a Potential Loss until the earlier to occur of the date on which (y) such covenant not Potential Loss is determined to competehave resulted in any Loss (defined below) to the potential indemnified party and such party has made a related claim for indemnification with respect to such Loss pursuant to this Article X (provided, that such claim must be made, if at all, within ninety (90) days following the date on which the indemnified party has actual knowledge that such Potential Loss is determined to have resulted in a Loss) and (dz) any representation, warranty, covenant or agreement contained herein and any Liabilities of Seller with respect thereto relating the potential indemnified party ceases to Medicare, Medicaid or third party payors shall survive until the later of the third anniversary of the Closing Date or the conclusion of any audit or review commenced within have a reasonable basis to believe that such three-year periodPotential Loss may result in a Loss.

Appears in 1 contract

Samples: Asset Purchase Agreement (TrueBlue, Inc.)

Survival of Representations and Warranties. Notwithstanding any right of Buyer or Seller fully to investigate the affairs of Buyer or The representations and warranties made by Seller, and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder its Subsidiaries and Buyer contained in this Agreement, or listed or disclosed on any Schedule hereto or in any instrument or document delivered in connection with or pursuant to any of the foregoing. All such representations, warranties, covenants and agreements Agreement shall survive the execution Closing and delivery shall continue in effect until the later of this Agreement and (i) the date of completion of Buyer’s first fiscal year audit following the Closing hereunder for a period Date and (ii) the first anniversary of two (2) years after the Closing Date, except that (aA) any representationthe representations and warranties set forth in Section 4.4 and Section 4.19 (other than 4.19(b)(i)) shall survive until the second anniversary of the Closing Date, warranty, covenant or agreement contained (B) the representations and warranties set forth in Sections 3.1 4.1, 4.2, 4.3, 4.5, 4.12, 4.17 and 4.2 hereof 4.19(b)(i) shall survive the execution and delivery of this Agreement and the Closing hereunder without limitation, (b) any representation, warranty, covenant or agreement related to Taxes shall survive the execution and delivery of this Agreement and the Closing hereunder until the expiration of the applicable statute of limitations, limitations with respect to such matters (cand any extensions thereof) any non-compete agreement delivered pursuant hereto shall survive the Closing until the expiration of the duration of such covenant not to compete, and (dC) as to the breach of any representation, warranty, covenant representation or agreement contained herein and any Liabilities of Seller warranty with respect thereto relating to Medicarewhich a claim is submitted in writing by a Buyer Indemnitee (as defined herein) or a Seller Indemnitee (as defined herein) within such period and identified as a claim for indemnification pursuant to this Agreement or any other Transaction-Related Document, Medicaid or third party payors in which case such representation and warranty shall survive until the later claim is resolved notwithstanding the passing of such applicable period. Notwithstanding anything to the third anniversary contrary contained in this Agreement, (A) the obligation of Seller to indemnify any Buyer Indemnitee for (I) Losses under Section 7.2 (other than Section 7.2(a)) or (II) Losses arising out of or resulting from any fraud or intentional misrepresentation and (B) the Closing Date obligation of Buyer to indemnify any Seller Indemnitee for (I) Losses under Section 7.4 (other than Section 7.4(a)) or the conclusion (II) for Losses arising out of or resulting from any audit fraud or review commenced within such three-year periodintentional misrepresentation, shall survive indefinitely and shall not be limited by any applicable statute of limitations.

Appears in 1 contract

Samples: Asset Purchase Agreement (Princeton Review Inc)

Survival of Representations and Warranties. Notwithstanding any right of Buyer or Seller fully to investigate the affairs of Buyer or Seller, The representations and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer warranties set forth in Articles III and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer contained in this Agreement, or listed or disclosed on any Schedule hereto or in any instrument or document delivered in connection with or pursuant to any of the foregoing. All such representations, warranties, covenants and agreements shall survive the execution and delivery IV of this Agreement and the Closing hereunder for a period of two (2) years after shall survive until 15 months following the Closing Date, except at which time such representations or warranties will terminate and no indemnification obligations or any other action, claim or proceeding will be associated therewith, based thereon or otherwise brought, claimed or noticed following such termination; provided, however, that (a) any representationthe representations and warranties of Seller set forth in Section 3.1 (Organization and Qualification), warrantySection 3.2 (Capitalization), covenant or agreement contained Section 3.3 (Authority), and Section 3.15 (Brokerage Agreements) (collectively, the “Seller Fundamental Representations”), and the representations and warranties of Buyer set forth in Sections 3.1 Section 4.1 (Organization and Qualification), Section 4.2 hereof (Authority), and Section 4.5 (Brokerage Agreements), shall survive the execution and delivery of this Agreement and the Closing hereunder without limitationindefinitely, (b) any representation, warranty, covenant or agreement related the representations and warranties of Seller set forth in Section 3.9 (Title to Taxes Assets) shall survive the execution and delivery of this Agreement and until three months following the Closing hereunder Date and (c) the representations and warranties of Seller set forth in Section 3.13 (Taxes) shall survive until 30 days after the expiration of the applicable statute of limitations. Notwithstanding the survival periods set forth above, (c) any non-compete agreement delivered pursuant hereto shall survive the Closing until the as to each claim for indemnification under this Agreement regarding a representation or warranty that is validly made before expiration of the duration such representation or warranty, such claim and associated right to indemnification will not terminate before final determination and satisfaction of such covenant not to compete, and (d) any representation, warranty, covenant or agreement contained herein and any Liabilities of Seller with respect thereto relating to Medicare, Medicaid or third party payors shall survive until the later of the third anniversary of the Closing Date or the conclusion of any audit or review commenced within such three-year periodclaim.

Appears in 1 contract

Samples: Securities Purchase Agreement (Atlas Pipeline Partners Lp)

Survival of Representations and Warranties. Notwithstanding any right The representations and warranties of Buyer or Seller fully to investigate the affairs of Buyer or Seller, Company and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer Member Parties contained in this Agreement, or listed or disclosed on any Schedule hereto Related Agreements or in any certificate or other instrument or document delivered in connection with or pursuant to any of the foregoing. All such representations, warranties, covenants and agreements this Agreement shall survive until 11:59 p.m. (Pacific time) on the execution and delivery of this Agreement and date that is twelve (12) months following the Closing hereunder for a period Date (the date of two (2) years after expiration of such period, the Closing “Expiration Date”); provided, except that however, (a) any representationthat in the event of fraud, willful breach or intentional misrepresentation with respect to a representation or warranty, covenant such representation or agreement contained in Sections 3.1 and 4.2 hereof warranty shall survive the execution and delivery of this Agreement and the Closing hereunder without limitationindefinitely, (b) any representationthat the representations and warranties contained in Section 2.1 (Organization and Good Standing), warrantySection 2.2 (Authority and Enforceability), covenant or agreement related to Taxes Section 2.5 (Company Capital Structure), Section 2.9 (Tax Matters), subsection (b) of Section 2.20 (Referral Partners, Carriers, Field Marketing Organizations and Suppliers), Section 2.23 (Brokers and Finders), Section 3.1 (Ownership of Membership Interests), Section 3.4 (Authority), Section 3.6 (Brokers’ and Finders’ Fees) and Section 3.9 (Accredited Investor; Rule 144), (collectively, the “Fundamental Representations”) shall survive for the execution and delivery of this Agreement and the Closing hereunder until the expiration of the longest applicable statute of limitations, and (c) any non-compete agreement delivered pursuant hereto that a representation or warranty made by the Company or the Member Parties shall survive beyond the Closing until Expiration Date or other survival periods specified above with respect to any inaccuracy therein or breach thereof if a claim is made hereunder in accordance with this Agreement prior to the expiration of the duration of survival period for such covenant not to compete, representation and (d) any representation, warranty, covenant in which case such representation and warranty shall survive as to such claim until such claim has been finally resolved. The representations and warranties of Parent contained in this Agreement, the Related Agreements or agreement in any certificate or other instrument delivered pursuant to this Agreement shall terminate at the Closing; provided, however (a) that the representations and warranties contained herein in Section 4.2 (Authority and any Liabilities of Seller with respect thereto relating to Medicare, Medicaid or third party payors Enforceability) and Section 4.4 (Capital Resources) shall survive until the later of the third anniversary of the Closing Date or the conclusion of any audit or review commenced within such three-year period.the

Appears in 1 contract

Samples: Purchase Agreement by And (eHealth, Inc.)

Survival of Representations and Warranties. Notwithstanding any right The representations and warranties of Buyer or Seller fully to investigate the affairs of Buyer or Seller, and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer parties contained in this Agreement, or listed or disclosed on any Schedule certificate delivered pursuant hereto or in any instrument Seller Document or document delivered in connection with or pursuant to any of the foregoing. All such representations, warranties, covenants and agreements Purchaser Document shall survive the execution Closing through and delivery including the 18 month anniversary of this Agreement and the Closing hereunder for a period of two (2) years after the Closing Date; provided, except however, that the representations and warranties (a) any representation, warranty, covenant or agreement contained of Seller set forth in Sections 3.1 5.1 (organization and 4.2 hereof good standing), 5.2 (authorization of agreement) and 5.6 (title to purchased assets; possession) shall survive the execution and delivery of this Agreement and the Closing hereunder without limitationindefinitely, (b) any representation, warranty, covenant or agreement related to Taxes of Seller set forth in Section 5.13 (employee benefits) shall survive the execution Closing through and delivery including the 36 month anniversary of this Agreement and the Closing hereunder until the expiration of the applicable statute of limitationsDate), (c) any non-compete agreement delivered pursuant hereto of Seller set forth in Sections 5.8 (taxes) and 5.17 (environmental matters) shall survive the Closing until the expiration of the duration applicable statute of such covenant not limitations with respect to compete, the particular matter that is the subject matter thereof and (d) of Purchaser set forth in Sections 6.1 (organization), and 6.2 (authorization of agreement) shall survive the Closing indefinitely (in each case, the “Survival Period”); provided, however, that any representation, warranty, covenant or agreement contained herein obligations under Sections 10.2(a)(i) and any Liabilities of Seller 10.2(b)(i) shall not terminate with respect thereto relating to Medicare, Medicaid or third any Losses as to which the Person obligated to provide indemnification shall have received notice in accordance with Section 12.6 (stating in reasonable detail the basis of the claim for indemnification) from the indemnified party payors in accordance with Section 10.3(a) before the termination of the applicable Survival Period. Any representations and warranties contained in the Real Estate Purchase Agreement shall survive until the later of closing thereunder as provided in the third anniversary of the Closing Date or the conclusion of any audit or review commenced within such three-year periodReal Estate Purchase Agreement.

Appears in 1 contract

Samples: Asset Purchase Agreement (Core-Mark Holding Company, Inc.)

Survival of Representations and Warranties. Notwithstanding any right All representations and warranties of Buyer or Seller fully to investigate the affairs of Buyer or Seller, and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of SellerCompanies, the Stockholder Operating Partnerships and Buyer the Investors contained in this Agreementherein, including the Company Disclosure Letter, or listed any certificate or disclosed on any Schedule hereto or in any instrument or document delivered in connection with herewith at or pursuant prior to any of the foregoing. All such representations, warranties, covenants and agreements Closing shall survive the execution Closing (even if the damaged party knew or had reason to know of any misrepresentation or breach of warranty at the time of Closing) until, through and delivery including the 90th day following the filing by Wyndham of this Agreement and a Form 10-K containing the Closing hereunder audited consolidated financial statements of Wyndham for a period of two the fiscal year ending December 31, 1999 (2) years after the Closing "Cut-off Date"); PROVIDED, except HOWEVER, that (a) the representations and warranties set forth in Sections 3.1, 3.4, 4.3 and 4.4 shall survive indefinitely, and (b) the representations and warranties set forth in Section 3.21 shall survive until 90 days following the expiration of the applicable statute of limitations (giving effect to any extensions thereof). The parties' respective covenants and agreements set forth herein shall survive indefinitely unless otherwise set forth therein or herein (except for those set forth in Sections 6.1, 6.5, 6.6, 6.7, 6.8, 6.9 and 6.14, each of which will survive until the Cut-off Date). The Closing shall not be deemed in any way to constitute a waiver by any party of any powers, rights or remedies it may have with respect to any obligations of the other parties hereunder, including without limitation with respect to any misrepresentation or breach of warranty known to such party at the time of the Closing. No claim shall be made with respect to any representation, warranty, covenant or agreement contained after it ceases to survive except that in Sections 3.1 the event that any member of the Investor Indemnified Group (as defined below) (i) receives notice of or identifies any matter which provides a reasonable basis for a claim to indemnification hereunder within the applicable period provided in this Section 10.1, and 4.2 hereof (ii) provides notice to the Companies of the receipt of such notice or of the matter so identified, and such claim shall survive not have been finally resolved before the execution and delivery expiration of the applicable period referred to in this Agreement and the Closing hereunder without limitationSection 10.1, (b) any representation, warranty, covenant or agreement related that is the basis for such claim shall continue to Taxes shall survive the execution and delivery of this Agreement and the Closing hereunder until the expiration of the applicable statute of limitations, (c) any non-compete agreement delivered pursuant hereto shall survive the Closing until the expiration of the duration of such covenant not to compete, and (d) any representation, warranty, covenant or agreement contained herein and any Liabilities of Seller with respect thereto relating to Medicare, Medicaid or third party payors such claim and shall survive remain a 62 basis for indemnity as to such claim until the later of the third anniversary of the Closing Date or the conclusion of any audit or review commenced within such three-year periodclaim is finally resolved.

Appears in 1 contract

Samples: Securities Purchase Agreement (Wyndham International Inc)

Survival of Representations and Warranties. Notwithstanding any right 8.1.1 All representations and warranties of Buyer or Seller fully to investigate the affairs of Buyer or Seller, Sen Lang Parties and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer Acquired Companies contained in this AgreementAgreement (including all schedules and exhibits hereto and all certificates, or listed or disclosed on any Schedule hereto or in any instrument or document delivered in connection with or documents, instruments and undertakings furnished pursuant to any of the foregoing. All such representations, warranties, covenants and agreements this Agreement) shall survive the execution Closing through and delivery until and including the twenty-four (24) month anniversary of the Closing Date (the “Expiration Date”), other than representations and warranties of the Sen Lang Parties and Acquired Companies contained in this Agreement with respect to Taxes and the Closing hereunder for a period of two (2) years after the Closing DateIndebetdness, except that (a) any representation, warranty, covenant or agreement contained in Sections 3.1 and 4.2 hereof which shall survive the execution Closing through and delivery of this Agreement and the Closing hereunder without limitation, until sixty (b60) any representation, warranty, covenant or agreement related to Taxes shall survive the execution and delivery of this Agreement and the Closing hereunder until days after the expiration of the applicable statute of limitationslimitations for the underlying item; provided, however, that any claim based in whole or in part upon fraud, willful misconduct or intentional misrepresentation (ccollectively, “Fraud Claims”) shall survive indefinitely. If a Claim Notice (as defined herein) for a claim of a breach of any non-compete agreement delivered pursuant representation or warranty has been given before the Expiration Date, then the relevant representations and warranties shall survive as to such claim, until the claim has been finally resolved. All covenants, obligations and agreements of the Sen Lang Parties and the Acquired Companies contained in this Agreement (including the Sen Lang Disclosure Schedule, all schedules and exhibits hereto and all certificates, documents, instruments and undertakings furnished by any Sen Lang Party or Acquired Companypursuant to this Agreement), including any indemnification obligations, shall survive the Closing and continue until the expiration of the duration of such covenant not to compete, and (d) any representation, warranty, covenant or agreement contained herein and any Liabilities of Seller fully performed in accordance with respect thereto relating to Medicare, Medicaid or third party payors shall survive until the later of the third anniversary of the Closing Date or the conclusion of any audit or review commenced within such three-year periodtheir terms.

Appears in 1 contract

Samples: Share Purchase Agreement (Avalon GloboCare Corp.)

Survival of Representations and Warranties. Notwithstanding any right of Buyer or Seller fully to investigate the affairs of Buyer or Seller, The representations and notwithstanding any knowledge of facts determined or determinable warranties made by Buyer or Seller pursuant to such investigation or right of investigation, Buyer Conexant in Section 2 and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer contained by Carlyle in this Agreement, or listed or disclosed on any Schedule hereto or in any instrument or document delivered in connection with or pursuant to any of the foregoing. All such representations, warranties, covenants and agreements Section 3 shall survive the execution and delivery of this Agreement and the Closing hereunder for a period of two (2) years after the Closing Date, until [...***...]; except that (ai) any representation, warranty, covenant or agreement contained the representations and warranties in Sections 3.1 2.5 (Intellectual Property) and 4.2 hereof 2.9 (Environmental Matters) and all claims and causes of action with respect thereto, shall survive the execution Closing until [...***...]; (ii) the representations and delivery warranties in Section 2.6 (Employee Matters) and in Section 2.15 (Tax Matters), and all claims and causes of this Agreement action with respect thereto, shall survive until [...***...]; and (iii) the Closing hereunder without limitation, (b) any representation, warranty, covenant or agreement related to Taxes Newport Fab LLC Representations shall survive the execution and delivery Closing [...***...]. If a Claim Notice (as defined below) relating to any representation or warranty set forth in any of this Agreement and said Sections is given to the Closing hereunder until appropriate party on or prior to the expiration of the applicable statute survival period for such representation or warranty, then, notwithstanding anything to the contrary contained in this Section 8.1, such representation or warranty shall not expire, but rather shall remain in full force and effect until such time as any breach or alleged breach of limitationssuch representation or warranty has been fully and finally resolved. For purposes of this Agreement, a "Claim Notice" relating to a particular representation or warranty shall be deemed to have been given if any Indemnitee, acting in good faith, delivers to the indemnifying party a written notice stating that such Indemnitee believes that there is or has been a possible breach of such representation or warranty and containing (ci) any non-compete agreement delivered pursuant hereto shall survive the Closing until the expiration a reasonably detailed description of the duration of circumstances supporting such covenant not to competeIndemnitee's belief that there is or has been such a possible breach, and (dii) any representationif reasonably determinable under the circumstances, warrantya non-binding, covenant or agreement contained herein and any Liabilities of Seller with respect thereto relating to Medicare, Medicaid or third party payors shall survive until the later preliminary estimate of the third anniversary aggregate dollar amount of the Closing Date or the conclusion actual Damages that have arisen as a result of any audit or review commenced within such three-year periodpossible breach.

Appears in 1 contract

Samples: Contribution Agreement (Jazz Semiconductor Inc)

Survival of Representations and Warranties. Notwithstanding any right All of Buyer or the representations and warranties of Seller fully to investigate the affairs of Buyer or Seller, and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer contained in Section 3 of this Agreement, or listed or disclosed on any Schedule hereto Agreement or in any certificate or instrument or document delivered in connection with or pursuant to any of the foregoing. All such representations, warranties, covenants and agreements this Agreement shall survive the execution consummation of the transactions contemplated hereby (even if Buyer knew or had reason to know of any misrepresentation or breach of warranty at the time of the First Closing) and delivery continue in full force and effect until 11:59 p.m., California time, on the first anniversary of this Agreement and the Closing hereunder for a period of two (2) years after the First Closing Date; provided, except however, that (a) any representation, warranty, covenant or agreement the representations and warranties of Seller contained in Sections 3.1 and 4.2 hereof (i) Section 3(j) above shall survive the execution First Closing and delivery of this Agreement continue in full force and the Closing hereunder without limitation, (b) any representation, warranty, covenant or agreement related to Taxes shall survive the execution and delivery of this Agreement and the Closing hereunder effect until 60 days after the expiration of the all applicable statute of limitations, (cii) any non-compete agreement delivered pursuant hereto Section 3(k) above shall survive the First Closing and continue in full force and effect until 11:59 p.m., California time, on the expiration sixth anniversary of the duration of such covenant not to competeFirst Closing Date, and (diii) Sections 3(a) through 3(d) above shall survive the First Closing and continue in full force and effect forever thereafter. All of the representations and warranties of Buyer contained in Section 4 of this Agreement or in any certificate or instrument delivered pursuant to this Agreement shall survive the consummation of the transactions contemplated hereby (even if Seller knew or had reason to know of any misrepresentation or breach of warranty at the time of the First Closing) and continue in full force and effect forever thereafter. Each Party’s indemnification obligations with respect to representations, warranties, covenants, and obligations in this Agreement, the Disclosure Schedules and any other certificate or document delivered pursuant to this Agreement shall survive until the applicable representation, warranty, covenant, or obligation period ends (or, if there is no such end, forever) pursuant to this Section 7(a); provided, however, that if an Indemnified Party (as defined below) delivers to an Indemnifying Party (as defined below), before expiration of a representation, warranty or covenant, either a Claim Notice (as defined below) based upon a breach of such representation, warranty or covenant, or a notice that, as a result of a legal proceeding instituted by or written claim made by a third party, the Indemnified Party reasonably expects to incur Damages (as defined below) as a result of a breach of such representation, warranty or covenant (an “Expected Claim Notice”), then such representation, warranty or agreement contained herein and any Liabilities covenant shall survive until, but only for purposes of, the resolution of Seller the matter covered by such notice. If the legal proceeding or written claim with respect thereto relating to Medicare, Medicaid which an Expected Claim Notice has been given is definitively withdrawn or third party payors shall survive until the later resolved in favor of the third anniversary of Indemnified Party, the Closing Date or Indemnified Party shall promptly so notify the conclusion of any audit or review commenced within such three-year periodIndemnifying Party.

Appears in 1 contract

Samples: Asset Purchase Agreement (Napro Biotherapeutics Inc)

Survival of Representations and Warranties. Notwithstanding any right The representations and warranties of Buyer or Seller fully to investigate set forth in Article 3, of the affairs Stockholders set forth in Article 3A and of Buyer or Parent and Acquisition Sub set forth in Article 4 (other than Section 3.17 (Tax Representations), the Seller Fundamental Representations and the Parent Fundamental Representations) and the Seller, ’s pre-Closing covenants shall survive the Closing until the first (1st) anniversary of the Closing Date. The Seller Fundamental Representations and notwithstanding any knowledge the Parent Fundamental Representations shall survive the Closing until the fifth anniversary of facts determined or determinable by Buyer or Seller pursuant to such investigation or right the Closing Date. Section 3.17 (Tax Representations) shall survive the Closing until the date that is sixty (60) days after the expiration of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, applicable statute of limitations. The several covenants and agreements of Seller, the Stockholder Stockholders, Parent and Buyer Acquisition Sub contained in this Agreement, or listed or disclosed on any Schedule hereto or Agreement shall remain operative and in any instrument or document delivered in connection with or pursuant to any of the foregoing. All such representations, warranties, covenants full force and agreements shall survive until the execution performance by the applicable Party hereto of such covenant and delivery agreement; provided that, for the avoidance of doubt, any such covenant or agreement required to be performed prior to the Closing and actually performed prior to the Closing in compliance with this Agreement and in all material respects shall not survive the Closing hereunder for Closing. No claim may be made with respect to a period of two (2) years after the Closing Date, except that (a) any representation, warranty, covenant or agreement contained in Sections 3.1 and 4.2 hereof shall survive the execution and delivery of this Agreement and after the Closing hereunder without limitationsurvival period specified in this Section 6.1 shall have expired, (b) any representation, warranty, covenant or agreement related except that if a claim shall have been made prior to Taxes shall survive the execution and delivery of this Agreement and the Closing hereunder until the expiration of the applicable statute survival period specified above, then, in each case, such survival period shall be extended as it relates to such claim until such claim is finally resolved or disposed of limitations, (c) any non-compete agreement delivered pursuant hereto shall survive in accordance with the Closing until the expiration of the duration of such covenant not to compete, and (d) any representation, warranty, covenant or agreement contained herein and any Liabilities of Seller with respect thereto relating to Medicare, Medicaid or third party payors shall survive until the later of the third anniversary of the Closing Date or the conclusion of any audit or review commenced within such three-year periodterms hereof.

Appears in 1 contract

Samples: Asset Purchase Agreement (Daily Journal Corp)

Survival of Representations and Warranties. Notwithstanding any right of Buyer or Seller fully to investigate The parties agree that ------------------------------------------ representations and warranties made by the affairs of Buyer or Seller, and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer contained parties in this Agreement, or listed or disclosed on any Schedule hereto or in any certificate or other instrument or document delivered in connection with or pursuant to any of the foregoing. All such representationsthis Agreement, warranties, covenants and agreements shall survive the execution and delivery of this Agreement and the Closing hereunder for a period of two 12 months from the Merger Effective Date (2) years after which date is hereinafter called the Closing "Expiration Date"), except that (ai) any representationthe representations and warranties contained in Section 6.21 hereof shall survive until such time as the limitations period has run for all tax periods ended prior to the Merger Effective Date, warranty, covenant or agreement which shall be deemed to be the Expiration Date for purposes of this clause (i); (ii) the representations and warranties contained in Sections 3.1 6.26 and 4.2 6.27 hereof shall survive for a period of three years from the execution and delivery Merger Effective Date, which shall be deemed the Expiration Date for purposes of this Agreement clause (ii); (iii) solely for the purposes of Section 12.1(iii) hereof, and solely to the Closing hereunder without limitationextent that USFLORAL actually incurs liability under the 1933 Act, the Exchange Act or any other federal or state securities laws, the representations and warranties set forth herein shall survive for a period of three years from the Merger Effective Date, which shall be deemed to be the Expiration Date for purposes of this clause (iii); (iv) the representations and warranties which serve as a basis for the indemnity obligations of STOCKHOLDERS under Sections 12.2(a) and (b) any representation, warranty, covenant or agreement related to Taxes shall survive the execution Merger Effective Date, without limitation; (v) the indemnity obligations of the STOCKHOLDERS under Section 12.2(c) shall survive for a period of three years from the Merger Effective Date; and delivery (vi) solely for the purposes of Section 12.3(iv) hereof, and solely to the extent that STOCKHOLDERS actually incur liability under the 1933 Act the Exchange Act or any other federal or state securities laws, the representations and warranties set forth herein shall survive for a period of three years from the Merger Effective Date, which shall be deemed to be the Expiration Date for purposes of this Agreement and the Closing hereunder until the expiration of the applicable statute of limitations, clause (c) any non-compete agreement delivered pursuant hereto shall survive the Closing until the expiration of the duration of such covenant not to compete, and (d) any representation, warranty, covenant or agreement contained herein and any Liabilities of Seller with respect thereto relating to Medicare, Medicaid or third party payors shall survive until the later of the third anniversary of the Closing Date or the conclusion of any audit or review commenced within such three-year periodvi).

Appears in 1 contract

Samples: Agreement and Plan of Contribution (U S a Floral Products Inc)

Survival of Representations and Warranties. Notwithstanding any right The representations and warranties of Buyer or Seller fully to investigate the affairs of Buyer or Seller, and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer contained Quantum set forth in this Agreement, or listed or disclosed on any Schedule hereto or in any instrument or document delivered in connection with or pursuant to any of the foregoing. All such representations, warranties, covenants and agreements Section 7 shall survive the execution and delivery Close of this Agreement and the Closing hereunder Escrow for a period of two twelve (212) years after months (except for Quantum’s representations and warranties set forth in Section 7.B(vi) and (xvi) which shall survive the Closing DateClose of Escrow without limitation on time or amount). Except as set forth in Section 7.B(vi) with respect to Quantum’s Existing Space Lease and Section 7.B(xvi), except that Quantum shall have no liability to Buyer for a breach of any representation or warranty (a) unless the valid claims for all such breaches collectively aggregate more than Ten Thousand Dollars ($10,000), in which event the amount of such valid claims shall be actionable from the first dollar, up to a maximum of Five Million Five Hundred Thousand Dollars ($5,500,000.00), and (b) unless written notice containing a description of the specific nature of such breach shall have been given by Buyer to Quantum prior to the expiration of said twelve (12) month period. Quantum shall indemnify Buyer for any representationloss, warrantyliability or damage suffered by Buyer on account of any breach of Quantum’s representations and warranties. Seller shall have no liability for, covenant or agreement indemnity obligation with respect to, the representations and warranties of Seller set forth in this Section 7 from and after the Close of Escrow; provided, however, Quantum shall indemnify Buyer for any loss, liability or damage suffered by Buyer on account of any breach of Seller’s representations and warranties and, for the avoidance of doubt, nothing herein shall limit Seller’s warranties contained in Sections 3.1 and 4.2 hereof the Deed, which shall survive the execution and delivery Close of Escrow. Seller’s indemnification obligations to Quantum, if any, shall be governed by the Existing Synthetic Lease. The provisions of this Agreement and the Closing hereunder without limitation, (b) any representation, warranty, covenant or agreement related to Taxes Section shall survive the execution and delivery Close of Escrow or any termination of this Agreement and the Closing hereunder until the expiration of the applicable statute of limitations, (c) any non-compete agreement delivered pursuant hereto shall survive the Closing until the expiration of the duration of such covenant not to compete, and (d) any representation, warranty, covenant or agreement contained herein and any Liabilities of Seller with respect thereto relating to Medicare, Medicaid or third party payors shall survive until the later of the third anniversary of the Closing Date or the conclusion of any audit or review commenced within such three-year periodAgreement.

Appears in 1 contract

Samples: Agreement for Purchase and Sale (Quantum Corp /De/)

Survival of Representations and Warranties. Notwithstanding any right of Buyer or Seller fully to investigate the affairs of Buyer or Seller, and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the All representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer contained in this Agreement, or listed or disclosed on any Schedule hereto or Agreement (including representations and warranties set forth in any instrument or document of the Transaction Documents and certificates delivered by the parties in connection with or pursuant to this Agreement) shall survive (and not be affected in any respect by) the Closing, any investigation conducted by any party hereto and any information which any party may receive, until the end of the foregoing. All Indemnification Period, whereupon all such representations, warranties, covenants and agreements shall survive the execution expire and delivery terminate and shall be of this Agreement and the Closing hereunder for a period of two (2) years after the Closing Dateno further force or effect, except that as follows: (ai) any representation, warranty, covenant or agreement the representations and warranties contained in Sections 3.1 2.9, 2.19 and 4.2 hereof 2.22 shall survive the execution and delivery of this Agreement and Closing for the Closing hereunder without limitation, (b) any representation, warranty, covenant or agreement related to Taxes shall survive the execution and delivery of this Agreement and the Closing hereunder until the expiration period of the applicable statute of limitationslimitations plus any extensions or waivers granted or imposed with respect thereto or, if no statute of limitations is applicable, indefinitely; (cii) any non-compete agreement delivered pursuant hereto the representations and warranties in Section 2.3(a) shall survive indefinitely; and (iii) the Closing until representations, warranties, covenants and agreements relating to any Deficiency (as defined in Section 11.4) of which the Indemnifying Party has received notice from the other party prior to the expiration of the duration Indemnification Period (except that notice relative to claims made pursuant to the above referenced Sections 2.9, 2.19 and 2.22 need only be made prior to the expiration of such covenant not to competerepresentations and warranties as provided above), and (d) any representation, warranty, covenant or agreement contained herein and any Liabilities of Seller with respect thereto relating to Medicare, Medicaid or third party payors shall survive until the later existence of such Deficiency has been finally established and the Deficiency is resolved as provided below. Provided, however, that the termination hereunder of any of the third anniversary above representations and warranties shall not terminate or limit in any manner whatsoever any rights which INTERCELL or Jaymark may have pursuant to this Article 11 for Deficiencies arising out of the Closing Date or the conclusion of any audit resulting from fraud or review commenced within knowing and intentional misrepresentation relating to such three-year periodrepresentations and warranties.

Appears in 1 contract

Samples: Stock Purchase Agreement (Intercell Corp)

Survival of Representations and Warranties. Notwithstanding any right The representations and warranties of Buyer or Seller fully to investigate the affairs of Buyer or Seller, and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer parties contained in this Agreement, Agreement or listed any Seller Document or disclosed on any Schedule hereto or in any instrument or document delivered in connection with or pursuant to any of the foregoing. All such representations, warranties, covenants and agreements Purchaser Document shall survive the execution Closing through and delivery of this Agreement and including the Closing hereunder for a period of two date that is eighteen (218) years months after the Closing Date; provided, except however, that the representations and warranties (a) any representation, warranty, covenant or agreement contained of U.S. Sellers set forth in Sections 3.1 5.1 (organization and 4.2 hereof good standing), 5.2 (authorization of agreement), 5.6(a)(i) (title to purchased assets; sufficiency), and 5.24 (financial advisors) shall survive the execution and delivery of this Agreement and the Closing hereunder without limitation, indefinitely; (b) any representation, warranty, covenant or agreement related to Taxes of U.S. Sellers set forth in Sections 5.8 (taxes) and 5.13 (employee benefits) shall survive the execution and delivery of this Agreement and the Closing hereunder until ninety (90) days following the expiration of the applicable statute of limitations, limitations with respect to the particular matter that is the subject matter thereof; (c) any non-compete agreement delivered pursuant hereto of U.S. Sellers set forth in Section 5.17 (environmental matters) shall survive the Closing for three (3) years; and (d) of Purchaser set forth in Sections 6.1 (organization and good standing), 6.2 (authorization of agreement) and 6.5 (financial advisors) shall survive the Closing until ninety (90) days following the expiration of the duration applicable statute of such covenant limitations (in each case, the “Survival Period”); provided, however, that any obligations under Sections 9.2(a)(i) and 9.2(b)(i) shall not terminate with respect to compete, and (d) any representation, warranty, covenant or agreement contained herein Third Party Claims that have been asserted prior to the termination of the applicable Survival Period and any Liabilities other Losses as to which the Person to be indemnified shall have given notice (stating in reasonable detail the basis of Seller the claim for indemnification) to the indemnifying party in accordance with respect thereto relating to Medicare, Medicaid Section 9.3(a) before the termination of the applicable Survival Period. All covenants or third party payors other agreements set forth herein shall survive until the later of the third anniversary of the Closing Date or the conclusion of any audit or review commenced within such three-year periodin accordance with their respective terms.

Appears in 1 contract

Samples: Escrow Agreement (International Wire Group Inc)

Survival of Representations and Warranties. Notwithstanding any right of Buyer or Seller fully to investigate the affairs of Buyer or Seller, All representations and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer contained warranties in this Agreement, or listed or disclosed on the Seller Disclosure Schedule and the Transaction Agreements and any Schedule hereto or in any instrument or document delivered in connection right to indemnification with or pursuant to any of the foregoing. All such representationsrespect thereto, warranties, covenants and agreements shall survive the execution consummation of the transactions contemplated hereby, and delivery of this Agreement and continue until 11:59 p.m. New York time on the Closing hereunder for a period of date that is two (2) years after following the Closing Date and shall then terminate (the “Rep Termination Date”); provided that if any Claim for indemnification is properly asserted in accordance with this Agreement prior to the Rep Termination Date, except that the representations and warranties on which any such Claims are based shall continue in effect solely with respect to and without expansion of such Claim until final resolution of any such Claim. Notwithstanding the foregoing, the representations and warranties contained in (a) any representation, warranty, covenant or agreement contained in Sections 3.1 (“Incorporation, Etc. of Seller”), 3.2 (“Authorization”), 3.3 (“Execution and Binding Effect”), 3.5 (“No Violation”), 3.10 (“Transferred Assets Generally”), 3.11 (“Sufficiency of Assets”), 3.18 (“Brokers and Finders”) and 3.20 (“Tax Matters”) of this Agreement (collectively, the “Seller Fundamental Representations”); and (b) Sections 4.1 (“Incorporation, Etc. of Buyer”), and 4.2 hereof (“Authorization”) of this Agreement (collectively, the “Buyer Fundamental Representations”), and any right to indemnification with respect thereto, shall survive the execution consummation of the transactions contemplated hereby and delivery of this Agreement and the Closing hereunder without limitation, (b) any representation, warranty, covenant or agreement related to Taxes shall survive the execution and delivery of this Agreement and the Closing hereunder until the expiration of the applicable federal, state, local or foreign statute of limitationsapplicable to the underlying claim (the “Fundamental Rep Termination Date”); provided that if any Claim for indemnification is properly asserted in accordance with this Agreement prior to the Fundamental Rep Termination Date, (c) the representations and warranties on which any non-compete agreement delivered pursuant hereto such Claims are based shall survive the Closing until the expiration of the duration continue in effect solely with respect to and without expansion of such covenant not to compete, and (d) any representation, warranty, covenant or agreement contained herein and any Liabilities of Seller with respect thereto relating to Medicare, Medicaid or third party payors shall survive Claim until the later of the third anniversary of the Closing Date or the conclusion final resolution of any audit or review commenced within such three-year periodClaim.

Appears in 1 contract

Samples: Asset Purchase Agreement (Sharps Technology Inc.)

Survival of Representations and Warranties. Notwithstanding any right of Buyer or Seller fully to investigate the affairs of Buyer or SellerThe representations and warranties, and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer contained in this Agreement, or listed or disclosed on any Schedule hereto or in any instrument or document delivered in connection with or pursuant parties to any of the foregoing. All such representations, warranties, covenants and agreements shall survive the execution and delivery of this Agreement and the Closing hereunder for a period of two (2) years after be performed prior to the Closing Date, except that (a) set forth in this Agreement and in any representation, warranty, covenant or agreement contained certificates delivered at the Closing in Sections 3.1 and 4.2 hereof connection with this Agreement shall survive the execution and delivery Closing until the eighteen (18) month anniversary of this Agreement and the Closing hereunder without limitationDate (the “Survival Date”) and shall thereafter be of no further force or effect; provided, however, that (bi) with respect to any representationLosses resulting from the breach of any representations or warranties contained in Section 3.8 (Taxes), warranty, covenant or agreement related to Taxes the Survival Date shall survive be the execution and delivery date of this Agreement and the Closing hereunder until the expiration of the applicable statute of limitations, (cii) with respect to any non-compete agreement delivered pursuant hereto Losses resulting from the breach of any representations and warranties contained in Section 3.9 (Employees and Employee Benefits), the Survival Date shall be the third (3rd) anniversary of the Closing Date, (iii) with respect to any Losses resulting from the breach of any representations and warranties contained in Section 3.13 (Environmental Matters), the Survival Date shall be the fifth (5th) anniversary of the Closing Date, and (iv) with respect to any Losses resulting from the breach of any representations or warranties contained in Section 3.2(a) (Authority), Section 3.3 (Capitalization), Section 3.5(a) (Personal Property), Section 3.6(a)(i) (Real Property), Section 3.15(b)(i) (Intellectual Property), Section 3.18 (Brokers or Finders), Section 4.1 (Organization of Buyer), Section 4.2(a) (Authority) and Section 4.4 (Brokers or Finders), the Survival Date shall be indefinite (the representations listed in clauses (i) and (iv) being the “Fundamental Representations”). Notwithstanding the foregoing, any covenants of any party which by their terms are to be performed or observed on or following the Closing shall survive the Closing until fully performed or observed in accordance with their terms. Except as expressly provided in the immediately preceding sentence, (a) any claim for indemnification made hereunder before the Survival Date of such claim will not terminate before final determination and satisfaction of such claim, and (b) no claim for indemnification hereunder may be made after the expiration of the duration of such covenant not to compete, and (d) any representation, warranty, covenant or agreement contained herein and any Liabilities of Seller with respect thereto relating to Medicare, Medicaid or third party payors shall survive until the later of the third anniversary of the Closing Date or the conclusion of any audit or review commenced within such three-year periodapplicable Survival Date.

Appears in 1 contract

Samples: Purchase Agreement (Avery Dennison Corp)

Survival of Representations and Warranties. Notwithstanding any right The respective representations and warranties of Buyer or Seller fully to investigate the affairs of Buyer or SellerSellers, Parent and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer Purchaser contained in this Agreement, or listed or disclosed on any Schedule hereto or in any instrument or document delivered in connection with or pursuant to any of the foregoing. All such representations, warranties, covenants and agreements Agreement shall survive the execution and delivery of this Agreement and Closing until the Closing hereunder for a period of two date that is twelve (212) years after months from the Closing Date, except that the representations and warranties contained in (a) any representationSection 4.1 (Due Organization, warrantyGood Standing and Corporate Power), covenant or agreement contained in Sections 3.1 Section 4.2 (Authorization; Noncontravention), Section 4.10 (Finders; Brokers), Section 5.1 (Corporate Due Organization, Good Standing and 4.2 hereof Corporate Power of AMERICAS 92199813 (2K) -00- Xxxxxxxxx), Xxxxxxx 5.2 (Authorization; Noncontravention) and Section 5.6 (Finders; Brokers) (such representations and warranties, collectively, the “Fundamental Representations”), Section 4.7 (Tax Matters) shall survive the execution and delivery of this Agreement and the Closing hereunder without limitation, until sixty (b60) any representation, warranty, covenant or agreement related to Taxes shall survive the execution and delivery of this Agreement and the Closing hereunder until days after the expiration of the applicable statute of limitations, including any waivers or extensions, with respect to the particular matter that is the subject matter thereof, (b) Section 4.12 (Intellectual Property), other than Section 4.12(b), shall survive until the date that is three (3) years from the Closing Date and (c) any non-compete agreement delivered pursuant hereto Section 4.5(c) (Assumed Contracts; Title), Section 4.12(b) (Intellectual Property) shall survive until the date that is six (6) years from the Closing until Date. Each covenant and other agreement of Purchaser, Parent or any Seller hereunder shall survive in accordance with its terms. No Person shall be liable for any claim for indemnification under this Article VIII unless a Claim Certificate (as defined below) is delivered by the Person seeking indemnification to the Person from whom indemnification is sought prior to the expiration of the duration of such covenant not to competeapplicable survival period, and (d) any in which case the representation, warranty, covenant or agreement contained herein and any Liabilities which is the subject of Seller with respect thereto relating such claim shall survive, to Medicare, Medicaid or third party payors shall survive until the later extent of the third anniversary claims described in such Claim Certificate only, until such claim is resolved, whether or not the amount of the Closing Date or Losses resulting from such breach has been finally determined at the conclusion of any audit or review commenced within such three-year periodtime the notice is given.

Appears in 1 contract

Samples: Asset Purchase Agreement (Iconix Brand Group, Inc.)

Survival of Representations and Warranties. Notwithstanding any right Solely for purposes of Buyer or Seller fully to investigate the affairs of Buyer or Sellerindemnification provisions set forth in Article VIII, and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant subject to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Sellerlimitations set forth therein, the Stockholder representations and Buyer contained warranties set forth in this Agreement, or listed or disclosed on any Schedule hereto or in any instrument or document delivered in connection with or pursuant to any of the foregoing. All such representations, warranties, covenants and agreements shall survive the execution and delivery of Closing under this Agreement until December 31, 1999; provided that (A) the representations and warranties in Section 2.13, and the Closing hereunder for a period of two (2) years after the Closing Date, except that (a) any representation, warranty, covenant or agreement contained in Sections 3.1 and 4.2 hereof shall survive the execution and delivery of this Agreement and the Closing hereunder without limitation, (b) any representation, warranty, covenant or agreement related to Taxes shall survive the execution and delivery of this Agreement and the Closing hereunder until the expiration indemnification obligations of the applicable statute of limitationsStockholders, (c) any non-compete agreement delivered pursuant hereto shall survive the Closing until the expiration of the duration of such covenant not to compete, and (d) any representation, warranty, covenant or agreement contained herein and any Liabilities of Seller with respect thereto relating to Medicare, Medicaid or third party payors shall survive until the later of the third fifth anniversary of the Closing Date Date; (B) any representations and warranties contained in any separate agreement contemplated herein, and the related indemnification obligations of the Stockholders, shall survive the Closing as provided in such separate agreement; (C) any claims, actions or suits based upon fraud, willful misconduct or intentional misrepresentation on the conclusion Buyer or any representative of it, on the one hand, the Company or any audit of the Stockholders, on the other hand, shall continue in full force and effect without limitation until expiration of the statute of limitations applicable thereto. If prior to the close of business on the scheduled date for expiration of a particular representation, warranty or review commenced within covenant that is the basis for a claim for indemnity under Article VIII, the Stockholders or Buyer shall have been notified of such three-year periodclaim, then the representation, warranty or covenant that is the basis for such claim shall continue to survive and shall remain a basis for indemnity, to the extent of such specific claim only, until such claim is finally resolved or disposed of. Except as described above, to the extent that the covenants of the parties contained in this Agreement that contemplate or may involve actions to be taken (a) solely prior to the Closing shall not survive the Closing, and (b) after the Closing, they shall survive until such actions shall have been performed in accordance with their terms.

Appears in 1 contract

Samples: Stock Exchange Agreement (Sylvan Learning Systems Inc)

Survival of Representations and Warranties. Notwithstanding any right of Buyer or Seller the Purchaser fully to investigate the affairs of Buyer or Seller, Company and Sellers and notwithstanding any knowledge Knowledge of facts determined or determinable by Buyer or Seller Purchaser pursuant to such investigation or right of investigation, Buyer and Seller have Purchaser has the right to rely fully upon the representations, warranties, covenants representations and agreements warranties of Seller, the Stockholder each of Sellers and Buyer Company contained in this Agreement, or listed or disclosed on any Schedule hereto or in any instrument or document delivered in connection with or pursuant to any . All representations and warranties of the foregoing. All such representations, warranties, covenants and agreements parties hereto contained in this Agreement shall survive the execution and delivery of this Agreement hereof and the Closing hereunder for a period hereunder, and, after the Closing (a) the representations and warranties made in Sections 3.2(a), 3.3, 3.4, 3.17 and 3.19, and Tax Claims, indemnification obligations specified in Sections 11.3(b), (c) and (d) and any and all claims based upon fraud, bad faith or intentional misconduct and indemnification obligations with respect thereto, shall survive until (x) sixty (60) days after the expiration of two the applicable federal or state statute of limitation or (2y) if there is no applicable federal or state statute of limitations, the fifth (5th) anniversary of Closing, (b) the indemnification obligation specified in Section 11.3(a) shall survive until the sixth (6th) anniversary of Closing, (c) the representations and warranties made in Section 3.33, and indemnification obligations with respect thereto, shall survive until the date that is three (3) years from the Closing Date, and (d) all other representation and warranties, breaches of covenants herein that occur prior to the Effective Time, and indemnification obligations with respect thereto, shall survive until the date that is eighteen (18) months after the Closing Date. Each representation, except that warranty and covenant described in the foregoing clauses (a), (b), (c) any representationand (d), warrantyand indemnification obligations with respect thereto, covenant shall further survive if the party asserting such claim shall have in good faith provided written notice on or agreement prior to the applicable date referenced in clauses (a), (b), (c) and (d) to the party against which such claim is asserted. Except as otherwise expressly provided herein, the covenants and agreements contained in Sections 3.1 and 4.2 hereof this Agreement that are to be performed after the Closing shall survive the execution and delivery of this Agreement hereof and the Closing hereunder without limitation, (b) any representation, warranty, covenant or agreement related to Taxes shall survive the execution and delivery of this Agreement and the Closing hereunder until the expiration consummation of the applicable statute of limitations, (c) any non-compete agreement delivered pursuant hereto shall survive the Closing until the expiration of the duration of such covenant not to compete, and (d) any representation, warranty, covenant or agreement contained herein and any Liabilities of Seller with respect thereto relating to Medicare, Medicaid or third party payors shall survive until the later of the third anniversary of the Closing Date or the conclusion of any audit or review commenced within such three-year periodtransactions contemplated hereby indefinitely.

Appears in 1 contract

Samples: Stock Purchase Agreement (NCI, Inc.)

Survival of Representations and Warranties. Notwithstanding any right All of Buyer or Seller fully to investigate the affairs of Buyer or Seller, Company’s representations and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, covenants and agreements of Seller, the Stockholder and Buyer contained warranties in this Agreement, as modified by the Company’s Schedules delivered on the date of this Agreement, shall survive the Merger and continue until the date which is one year following the Closing Date (the “Expiration Date”). Notwithstanding the preceding sentence, any representation or listed warranty in respect of which indemnity is sought under this Agreement shall survive the time at which it would otherwise terminate pursuant to the preceding sentence until the date which is one year following the Expiration Date (the “Final Escrow Distribution Date”) if notice of the inaccuracy or disclosed on any Schedule hereto breach thereof giving rise to such right of indemnity shall have been given to the party against whom such indemnity may be sought prior to the Expiration Date solely for purposes of a claim against the Escrow Fund which has been duly made prior to the Expiration Date in accordance with the provisions of, and satisfying all of the requirements of, Section 8.02; provided, however, that the representations and warranties contained in Section 4.20 in respect of which indemnity is sought under this Agreement shall survive indefinitely if notice of the inaccuracy or breach thereof giving rise to such right of indemnity shall have been given to the party against whom such indemnity may be sought prior to the Expiration Date in accordance with the provisions of, and satisfying all the requirements of, Section 8.02. All of Parent’s and Merger Subsidiary’s representations and warranties contained herein or in any instrument or document delivered in connection with or pursuant to any of the foregoing. All such representations, warranties, covenants and agreements shall survive the execution and delivery of this Agreement and shall terminate at the Closing hereunder for a period of two (2) years after the Closing Date, except that (a) any representation, warranty, covenant or agreement contained in Sections 3.1 and 4.2 hereof shall survive the execution and delivery of this Agreement and the Closing hereunder without limitation, (b) any representation, warranty, covenant or agreement related to Taxes shall survive the execution and delivery of this Agreement and the Closing hereunder until the expiration of the applicable statute of limitations, (c) any non-compete agreement delivered pursuant hereto shall survive the Closing until the expiration of the duration of such covenant not to compete, and (d) any representation, warranty, covenant or agreement contained herein and any Liabilities of Seller with respect thereto relating to Medicare, Medicaid or third party payors shall survive until the later of the third anniversary of the Closing Date or the conclusion of any audit or review commenced within such three-year periodClosing.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Netiq Corp)

Survival of Representations and Warranties. Notwithstanding any right Subject to the limitations and other provisions of this Agreement, except in the case of Fraud, (a) none of the representations or warranties contained in ARTICLE 5 herein shall survive the Closing and all such representations or warranties will expire and be of no further force and effect as of the Closing, and no indemnification obligation will be associated therewith or based thereon as of or after the Closing, and (b) the representations and warranties of Buyer or Seller fully to investigate set forth in this Agreement shall survive the affairs Closing and remain in full force and effect until 11:59 p.m. (New York City time) on the 18 month anniversary of Buyer or Seller, and notwithstanding any knowledge of facts determined or determinable by Buyer or Seller pursuant to such investigation or right of investigation, Buyer and Seller have the right to rely fully upon the representations, warranties, Closing Date. All covenants and agreements of Seller, the Stockholder and Buyer Parties contained in this Agreement, or listed or disclosed on any Schedule hereto or in any instrument or document delivered in connection with or pursuant herein to any of be performed after the foregoing. All such representations, warranties, covenants and agreements Closing shall survive the execution and delivery Closing for the shorter of this Agreement and the Closing hereunder for a period of two (2y) six (6) years after the Closing Date, except that or (az) any representationfor the period explicitly specified therein, warrantyand all such covenants will thereafter expire and be of no further force and effect, covenant and no indemnification obligation will be associated therewith or agreement based thereon. All covenants and agreements of the Parties contained in Sections 3.1 and 4.2 hereof herein to be performed at the Closing which are not performed at the Closing shall survive the execution and delivery of this Agreement and Closing for six (6) months after the Closing hereunder without limitationDate. Notwithstanding the foregoing, (bi) the covenants and agreements set forth in Section 2.5 shall remain in full force and effect until fully performed in accordance with the terms therein, at which time such agreement and covenant shall terminate and (ii) any representation, warranty, covenant or agreement related claims asserted in good faith with reasonable specificity (to Taxes the extent known at such time) and in writing by notice from the non-breaching party to the breaching party prior to the expiration date of the applicable survival period shall survive the execution and delivery of this Agreement and the Closing hereunder until not thereafter be barred by the expiration of the relevant representation or warranty and such claims shall survive until finally resolved. It is the express intent of the Parties that, if the applicable survival period for an item as contemplated by this Section 10.1 is shorter than the statute of limitations that would otherwise have been applicable to such item, then, by contract, the applicable statute of limitations, (c) any non-compete agreement delivered pursuant hereto shall survive the Closing until the expiration of the duration of such covenant not to compete, and (d) any representation, warranty, covenant or agreement contained herein and any Liabilities of Seller limitations with respect thereto relating to Medicare, Medicaid or third party payors shall survive until such item will be reduced to the later shortened survival period contemplated hereby. The Parties further acknowledge that the time periods set forth in this Section 10.1 for the assertion of claims under this Agreement are the third anniversary result of arms’ length negotiation among the Closing Date or parties and that they intend for the conclusion time periods to be enforced as agreed by the parties and to supersede the statute of any audit or review commenced within such three-year periodlimitations that would otherwise be applicable.

Appears in 1 contract

Samples: Asset Purchase Agreement (Andersons, Inc.)

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