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

Survival of Representations and Warranties Indemnification. All representations and warranties contained herein or made in writing by any Party in connection herewith shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby (regardless of any investigation made by any Party or on its behalf) as follows: (a) the representations and warranties in Section 6.1 (Organization), Section 6.2 (Equity Securities and Related Matters), Section 6.3 (Subsidiaries; Investments) Section 6.4 (Authorization), Section 6.5 (No Contravention), Section 6.10 (Governmental and Regulatory Proceedings), Section 6.11 (Agreements and Regulatory Agencies), Section 6.13 (No Restrictions), Section 6.32 (Brokerage), Section 7.1 (Organization, Power and Authority) and Section 7.2 (Authorization) shall not terminate; (b) the representations and warranties contained in Section 6.17 (Tax Matters) and Section 6.20 (ERISA) shall terminate after the expiration of the applicable statutes of limitations with respect to the liabilities in question (after giving effect to any extensions or waivers thereof), plus thirty (30) days (the representations and warranties described in clauses (a) and (b) of this Section 8.6 collectively, the “Fundamental Representations and Warranties”); and (c) all other representations and warranties contained herein shall survive until the (30) days after the delivery to Purchasers of the audited financials for fiscal year 2013; provided that any representation or warranty in respect of which indemnity may be sought under this Section 8.6 and the indemnity with respect thereto shall survive the time at which it would otherwise terminate pursuant to the foregoing if notice of the inaccuracy or breach or potential inaccuracy or breach thereof giving rise to such right or alleged right of indemnity shall have been given to the Corporation prior to such time. In consideration of the Purchasers’ execution and delivery of this Agreement and purchase of the Series C Preferred, the Corporation shall indemnify, pay and defend the Indemnitees and hold each of them harmless against and pay on behalf of or reimburse such Indemnitees for any Losses which any such Indemnitee may suffer, sustain or become subject to as a result of or arising out of (x) any breach by the Corporation or any Subsidiary of any of their respective covenants or agreements contained in this Agreement or any of the Schedules or Exhibits hereto, and (y) any breach by the Corporation or any Subsidiary of any of their representations or warranties contained in this Agreement or any of the Schedules or Exhibits hereto; provided that, other than with respect to any breach of the representations and warranties contained in Sections 6.1, 6.2, 6.3, and 6.4, (i) the Indemnitees shall not be entitled to an indemnity from the Corporation pursuant to this clause (y) until the aggregate amount of Losses hereunder exceeds $500,000 in the aggregate (the “Deductible Amount”), in which case the Indemnitees shall be entitled to indemnification for Losses hereunder from the first dollar, and (ii) the Indemnitees shall not be entitled to indemnification for Losses pursuant to this clause (y) in the aggregate in excess of $30,000,000 (the “Cap”), which Cap will be the maximum aggregate liability of the Corporation for all Losses incurred by the Purchasers and any other Persons arising pursuant to or in connection with this Agreement. For the avoidance of doubt, the Parties acknowledge and agree that the Deductible Amount and the Cap shall not apply to (i) the Corporation’s indemnification obligation for breaches of any of the representations and warranties contained in Sections 6.1, 6.2, 6.3, and 6.4 or to any breach of any covenants, and (ii) any Party’s rights to maintain or recover any amounts in connection with any action or claim based upon fraud or intentional misrepresentation. In the event that the Purchasers make an indemnification claim pursuant to this Section 8.6, the Purchasers shall be deemed to have suffered Losses with respect to such claim pro-rata based on the number of Series C Preferred shares held by each Purchaser on the date such Losses were incurred and any amounts payable by any Party with respect thereto shall be paid to each Purchaser on such pro-rata basis.

Survival of Representations and Warranties Indemnification. All representations and warranties contained herein or made in writing by 8.1 Notwithstanding any right of either Party in connection herewith shall survive to investigate the execution and delivery of this Agreement and the consummation affairs of the transactions contemplated hereby (regardless of any investigation made by any other party and its Shareholders, each Party or on its behalf) as follows: (a) has the representations right to rely fully upon representations, warranties, covenants and warranties in Section 6.1 (Organization), Section 6.2 (Equity Securities and Related Matters), Section 6.3 (Subsidiaries; Investments) Section 6.4 (Authorization), Section 6.5 (No Contravention), Section 6.10 (Governmental and Regulatory Proceedings), Section 6.11 (Agreements and Regulatory Agencies), Section 6.13 (No Restrictions), Section 6.32 (Brokerage), Section 7.1 (Organization, Power and Authority) and Section 7.2 (Authorization) shall not terminate; (b) the representations and warranties contained in Section 6.17 (Tax Matters) and Section 6.20 (ERISA) shall terminate after the expiration agreements of the applicable statutes of limitations with respect to the liabilities in question (after giving effect to any extensions or waivers thereof), plus thirty (30) days (the representations and warranties described in clauses (a) and (b) of this Section 8.6 collectively, the “Fundamental Representations and Warranties”); and (c) all other representations and warranties contained herein shall survive until the (30) days after the delivery to Purchasers of the audited financials for fiscal year 2013; provided that any representation or warranty in respect of which indemnity may be sought under this Section 8.6 and the indemnity with respect thereto shall survive the time at which it would otherwise terminate pursuant to the foregoing if notice of the inaccuracy or breach or potential inaccuracy or breach thereof giving rise to such right or alleged right of indemnity shall have been given to the Corporation prior to such time. In consideration of the Purchasers’ execution and delivery of this Agreement and purchase of the Series C Preferred, the Corporation shall indemnify, pay and defend the Indemnitees and hold each of them harmless against and pay on behalf of or reimburse such Indemnitees for any Losses which any such Indemnitee may suffer, sustain or become subject to as a result of or arising out of (x) any breach by the Corporation or any Subsidiary of any of their respective covenants or agreements Parties contained in this Agreement or in any of the Schedules or Exhibits hereto, and (y) any breach document delivered to one by the Corporation other or any Subsidiary of any of their representatives, in connection with the transactions contemplated by this Agreement. All representations and warranties made herein (or warranties contained in the certificates to be delivered pursuant to Sections 5.1 and 5.2 hereof) by the parties to this Agreement or any of and their respective obligations, covenants and agreements to be performed pursuant to the Schedules or Exhibits hereto; provided terms hereof, shall survive the Effective Time, provided, that, other than with respect to any breach of the representations and warranties contained made herein (or in Sections 6.1, 6.2, 6.3, and 6.4, (isuch certificates) by the Indemnitees parties shall not be entitled to an indemnity from terminate on the Corporation pursuant to this clause (y) until date which is 90 days following the aggregate amount of Losses hereunder exceeds $500,000 in the aggregate (the “Deductible Amount”), in which case the Indemnitees shall be entitled to indemnification for Losses hereunder from the first dollar, and (ii) the Indemnitees shall not be entitled to indemnification for Losses pursuant to this clause (y) in the aggregate in excess of $30,000,000 (the “Cap”), which Cap will be the maximum aggregate liability completion of the Corporation audited consolidated financial statements of Coronado for all Losses incurred by the Purchasers and any other Persons arising pursuant to or in connection with this Agreement. For the avoidance of doubtyear ending December 31, the Parties acknowledge and agree 2010, except that the Deductible Amount and the Cap shall not apply to (i) the Corporation’s indemnification obligation for breaches of any of the representations and warranties contained set forth in Sections 6.1Section 3.1 (Organization and Good Standing); Section 3.2 (Corporate Authority and Enforceability), 6.2Section 3.3 (Capitalization), 6.3Section 3.12 (Brokers and Finder), Section 4.1 (Organization and 6.4 or to Good Standing), Section 4.2 (Corporate Authority and Enforceability), Section 4.3 (Capitalization), Section 4.6 (Taxes) and Section 4.14 (Brokers and Finders) shall survive the Closing Time until the expiration of the period ending for the applicable statute of limitations. Notwithstanding the foregoing, if written notice of any matter setting forth in reasonable detail a claim for a breach of any covenants, and (ii) any Party’s rights representation or warranty is given to maintain or recover any amounts Vampt in connection with any action or claim based upon fraud or intentional misrepresentation. In the event that the Purchasers make an indemnification claim writing pursuant to this Section 8.6Agreement prior to the end of the applicable survival period, the Purchasers any such representation or warranty that would otherwise terminate shall be deemed to have suffered Losses survive solely with respect to such claim pro-rata based on the number of Series C Preferred shares held by each Purchaser on the date matter until such Losses were incurred and any amounts payable by any Party with respect thereto shall be paid to each Purchaser on such pro-rata basismatter is resolved.

Survival of Representations and Warranties Indemnification. All (a) The representations and warranties contained herein or made in writing by any Party in connection herewith of the parties shall survive until the execution and delivery of this Agreement date that is eighteen (18) months following the Closing Date, provided that the Sellers’ Fundamental Warranties and the consummation of the transactions contemplated hereby (regardless of any investigation made by any Party or on its behalf) as follows: (a) the representations and warranties in Section 6.1 (Organization), Section 6.2 (Equity Securities and Related Matters), Section 6.3 (Subsidiaries; Investments) Section 6.4 (Authorization), Section 6.5 (No Contravention), Section 6.10 (Governmental and Regulatory Proceedings), Section 6.11 (Agreements and Regulatory Agencies), Section 6.13 (No Restrictions), Section 6.32 (Brokerage), Section 7.1 (Organization, Power and Authority) and Section 7.2 (Authorization) Purchaser’s Fundamental Warranties shall not terminate; (b) the representations and warranties contained in Section 6.17 (Tax Matters) and Section 6.20 (ERISA) shall terminate after survive until the expiration of the applicable statutes statute of limitations with respect to the liabilities in question (after giving effect to any extensions or waivers thereof)limitations, plus thirty (30) days (and provided, further, that survival of the representations and warranties described set forth in clauses (a) and (b) of this Section 8.6 collectively3.15 shall be governed by Section 5.9(j). Except as provided in Section 5.9(j), the “Fundamental Representations covenants and Warranties”); agreements contained in this Agreement shall survive the Effective Time until fully performed in accordance with their respective terms, provided that the covenants and (c) all other representations and warranties agreements contained herein in this Agreement that by their terms apply or are to be performed entirely prior to the Effective Time shall only survive until the (30) days after the delivery to Purchasers end of the audited financials for fiscal year 2013; provided that period specified in the immediately preceding sentence. Notwithstanding the preceding sentences, any representation breach of representation, warranty, covenant or warranty agreement in respect of which indemnity may be sought under this Section 8.6 and the indemnity with respect thereto Agreement shall survive the time at which it would otherwise terminate pursuant if (and to the foregoing if extent) prior to such time notice of the inaccuracy or breach or potential inaccuracy or breach thereof giving rise to such right or alleged right of indemnity shall have been given in accordance with this Section 8.1 to the Corporation prior party against whom indemnity is sought, in which case such breach shall survive until final resolution of such claim (or, if earlier, the latest date permitted by applicable Law). (b) Effective at and after the Closing and subject to such time. In consideration of the Purchasers’ execution and delivery other provisions of this Agreement Section 8.1, Seller Holdco hereby agrees to indemnify Purchaser and purchase of its Affiliates (including the Series C PreferredBank and the Transferred Subsidiaries) and their respective Representatives (collectively, the Corporation shall indemnify, pay “Purchaser Indemnified Parties”) against and defend the Indemnitees and agrees to hold each of them harmless against from, and pay on behalf of or reimburse such Indemnitees for any Purchaser Indemnified Party for, any and all Losses which any such Indemnitee may suffer, sustain or become subject to suffered by a Purchaser Indemnified Party as a result of or arising out of relating to: (xi) any breach by the Corporation or any Subsidiary inaccuracy of any Sellers’ Fundamental Warranty or the certificate delivered at Closing in respect thereof determined without giving effect to any limitations as to materiality or “Material Adverse Effect” set forth therein; (ii) any breach or inaccuracy of their respective covenants or agreements contained any representation and warranty made by Sellers set forth in this Agreement or any of the Schedules or Exhibits hereto, and certificate delivered at Closing in respect thereof (y) any breach by the Corporation or any Subsidiary of any of their representations or warranties contained in this Agreement or any of the Schedules or Exhibits hereto; provided that, other than with respect to any breach of the Sellers’ Fundamental Warranties and the representations and warranties contained set forth in Sections 6.1, 6.2, 6.3, and 6.4, Section 3.15 (iwhich matters are addressed in Section 5.9)) the Indemnitees shall not be entitled to an indemnity from the Corporation pursuant to this clause (y) until the aggregate amount of Losses hereunder exceeds $500,000 in the aggregate (the “Deductible Amount”), in which case the Indemnitees shall be entitled to indemnification for Losses hereunder from the first dollar, and (ii) the Indemnitees shall not be entitled to indemnification for Losses pursuant to this clause (y) in the aggregate in excess of $30,000,000 (the “Cap”), which Cap will be the maximum aggregate liability of the Corporation for all Losses incurred by the Purchasers and any other Persons arising pursuant to or in connection with this Agreement. For the avoidance of doubt, the Parties acknowledge and agree that the Deductible Amount and the Cap shall not apply to (i) the Corporation’s indemnification obligation for breaches of any of the representations and warranties contained in Sections 6.1, 6.2, 6.3, and 6.4 or without giving effect to any breach of any covenants, and limitations as to materiality or “Material Adverse Effect” set forth therein (ii) any Party’s rights to maintain or recover any amounts other than in connection with any action or claim based upon fraud or intentional misrepresentation. In the event that the Purchasers make an indemnification claim pursuant to this Section 8.6, the Purchasers shall be deemed to have suffered Losses with respect to such claim pro-rata based on the number of Series C Preferred shares held by each Purchaser on the date such Losses were incurred and any amounts payable by any Party with respect thereto shall be paid to each Purchaser on such pro-rata basis.3.6(f));

Survival of Representations and Warranties Indemnification. All 13.1 Survival of Representations, Warranties, Covenants and Agreements. The representations and warranties of the AT&T Parties, the Comcast Parties and the AOLTW Parties in this Agreement or in any certificate delivered pursuant hereto will survive Closing for a period of 12 months after the Closing; provided that notwithstanding the foregoing (i) none of the representations and warranties contained herein in Section 5.10, 5.11, 5.12, 5.13, 5.14, 5.15, 5.17, 5.18, 5.19, 5.20, 5.21 or made in writing by any Party in connection herewith 5.22 shall survive Table of Contents the execution Closing; (ii) all representations and delivery of this Agreement and the consummation of the transactions contemplated hereby warranties with respect to any Taxes (regardless of any investigation made by any Party or on its behalf) as follows: (a) including the representations and warranties in Section 6.1 Sections 3.8 and 5.6) (Organizationother than the representations and warranties in Sections 3.8(a), Section 6.2 (Equity Securities and Related Mattersb), Section 6.3 (Subsidiaries; Investments) Section 6.4 (Authorizationc), Section 6.5 (No Contraventiond), Section 6.10 (Governmental and Regulatory Proceedingse), (f) and (g) which will not survive the Closing and other than the representations and warranties contained in Section 6.11 (Agreements and Regulatory Agencies5.33 that are not related to Income Taxes which will survive for a period of 12 months after the Closing), Section 6.13 Environmental Law or ERISA matters will survive until 60 days after the expiration of the applicable statute of limitations (No Restrictions)including any extensions) for such Taxes, Section 6.32 Environmental Law or ERISA matters, respectively; and (Brokerage), Section 7.1 (Organization, Power and Authority) and Section 7.2 (Authorization) shall not terminate; (biii) the representations and warranties contained in Section 6.17 (Tax Matters) 3.7 shall survive in perpetuity. The periods of survival of the representations and warranties prescribed by this Section 6.20 (ERISA) shall terminate after 13.1 are referred to as the “Survival Period.” Liabilities under representations and warranties contained in this Agreement will expire as of the expiration of the applicable statutes of limitations with respect Survival Period; provided, however, that such expiration will not include, extend or apply to the liabilities in question (after giving effect to any extensions or waivers thereof), plus thirty (30) days (the representations and warranties described in clauses (a) and (b) of this Section 8.6 collectively, the “Fundamental Representations and Warranties”); and (c) all other representations and warranties contained herein shall survive until the (30) days after the delivery to Purchasers of the audited financials for fiscal year 2013; provided that any representation or warranty in respect warranty, the breach of which indemnity may be sought under this has been asserted in a written notice in accordance with Section 8.6 and the indemnity with respect thereto shall survive the time at 15.1 before such expiration or about which it would otherwise terminate pursuant to the foregoing if proper notice of the inaccuracy or breach or potential inaccuracy or breach thereof giving rise to such right or alleged right of indemnity shall have has been given before such expiration, identifying with specificity any facts or conditions that exist which, with the passage of time or otherwise, could reasonably be expected to the Corporation prior to result in a breach (and describing such timepotential breach in reasonable detail). In consideration of the Purchasers’ execution The covenants and delivery of this Agreement and purchase of the Series C Preferred, the Corporation shall indemnify, pay and defend the Indemnitees and hold each of them harmless against and pay on behalf of or reimburse such Indemnitees for any Losses which any such Indemnitee may suffer, sustain or become subject to as a result of or arising out of (x) any breach by the Corporation or any Subsidiary of any of their respective covenants or agreements contained in this Agreement will survive the Closing and will continue in full force and effect without limitation. Any representation or any of the Schedules or Exhibits warranty which, pursuant hereto, and (y) any breach by does not survive the Corporation or any Subsidiary of any of their representations or warranties contained in this Agreement or any of the Schedules or Exhibits hereto; provided that, other than with respect to any breach of the representations and warranties contained in Sections 6.1, 6.2, 6.3, and 6.4, (i) the Indemnitees shall not be entitled to an indemnity from the Corporation pursuant to this clause (y) until the aggregate amount of Losses hereunder exceeds $500,000 in the aggregate (the “Deductible Amount”), in which case the Indemnitees Closing shall be entitled from and after the Closing null and void and of no further force or effect, to indemnification for Losses hereunder from the first dollar, and (ii) the Indemnitees shall not be entitled to indemnification for Losses pursuant to this clause (y) in the aggregate in excess of $30,000,000 (the “Cap”), which Cap will be the maximum aggregate liability of the Corporation for all Losses incurred by the Purchasers and any other Persons arising pursuant to or in connection with this Agreementsame extent as if never made hereunder. For the avoidance of doubt, the Parties acknowledge and The parties expressly agree that the Deductible Amount sole purpose of such representation and warranty ceases upon the Cap shall not apply to (i) the Corporation’s indemnification obligation for breaches of any of the representations and warranties contained in Sections 6.1, 6.2, 6.3, and 6.4 or to any breach of any covenants, and (ii) any Party’s rights to maintain or recover any amounts in connection with any action or claim based upon fraud or intentional misrepresentation. In the event that the Purchasers make an indemnification claim pursuant to this Section 8.6, the Purchasers shall be deemed to have suffered Losses with respect to such claim pro-rata based on the number of Series C Preferred shares held by each Purchaser on the date such Losses were incurred and any amounts payable by any Party with respect thereto shall be paid to each Purchaser on such pro-rata basisClosing.

Survival of Representations and Warranties Indemnification. All representations Section 10.1Survival. Subject to the limitations and warranties contained herein or made in writing by any Party in connection herewith shall survive the execution and delivery other provisions of this Agreement and the consummation of the transactions contemplated hereby (regardless of any investigation made by any Party or on its behalf) as follows: (a) Agreement, the representations and warranties of the Parties hereto, and the right of a party hereto to bring an indemnifiable claim under this Article X in respect of any breach thereof, shall survive the Closing and shall remain in full force and effect until the date that is [***] following the Closing (the “General Indemnity Expiration Date”); provided that (i) the right of Purchaser to bring a claim in respect of the representations of Seller in Section 6.1 5.10 shall survive the Closing and shall remain in full force and effect until the date that is [***] following the Closing and (Organization), Section 6.2 (Equity Securities and Related Matters), Section 6.3 (Subsidiaries; Investments) Section 6.4 (Authorization), Section 6.5 (No Contravention), Section 6.10 (Governmental and Regulatory Proceedings), Section 6.11 (Agreements and Regulatory Agencies), Section 6.13 (No Restrictions), Section 6.32 (Brokerage), Section 7.1 (Organization, Power and Authority) and Section 7.2 (Authorization) shall not terminate; (bii) the representations right of Purchaser and warranties contained Seller to bring a claim in Section 6.17 (Tax Matters) and Section 6.20 (ERISA) shall terminate after the expiration respect of the applicable statutes of limitations with respect to Seller Fundamental Representations and the liabilities in question (after giving effect to Purchaser Fundamental Representations, respectively, will survive until the Fundamental Claim Expiration Date, taking into account any extensions or waivers thereof). Except to the extent expressly provided herein, plus thirty (30) days (the representations and warranties described in clauses (a) and (b) no claim for breach of this Section 8.6 collectively, the “Fundamental Representations and Warranties”); and (c) all other representations and warranties contained herein shall survive until the (30) days after the delivery to Purchasers of the audited financials for fiscal year 2013; provided that any representation or warranty may be brought by any party after such applicable survival period set forth in the preceding sentence. The covenants, agreements and obligations set forth in Section 3.2 (“Fundamental Obligations”), and the right of the Seller Indemnified Parties to bring an indemnifiable claim under this Article X in respect of which indemnity may be sought under this Section 8.6 and the indemnity with respect thereto any breach thereof shall survive the Closing and shall remain in full force and effect the date that such covenants, agreements and obligations are fully performed. The Parties acknowledge that the time at which it would otherwise terminate pursuant to periods set forth in this Article X for the foregoing if notice assertion of the inaccuracy or breach or potential inaccuracy or breach thereof giving rise to such right or alleged right of indemnity shall have been given to the Corporation prior to such time. In consideration of the Purchasers’ execution and delivery of claims under this Agreement and purchase of are the Series C Preferred, the Corporation shall indemnify, pay and defend the Indemnitees and hold each of them harmless against and pay on behalf of or reimburse such Indemnitees for any Losses which any such Indemnitee may suffer, sustain or become subject to as a result of or arising out of (x) any breach arm’s length negotiation among the parties and that they intend for the time periods to be enforced as agreed by the Corporation or any Subsidiary of any of their respective covenants or agreements contained in this Agreement or any of the Schedules or Exhibits hereto, and (y) any breach by the Corporation or any Subsidiary of any of their representations or warranties contained in this Agreement or any of the Schedules or Exhibits hereto; provided that, other than with respect to any breach of the representations and warranties contained in Sections 6.1, 6.2, 6.3, and 6.4, (i) the Indemnitees shall not be entitled to an indemnity from the Corporation pursuant to this clause (y) until the aggregate amount of Losses hereunder exceeds $500,000 in the aggregate (the “Deductible Amount”), in which case the Indemnitees shall be entitled to indemnification for Losses hereunder from the first dollar, and (ii) the Indemnitees shall not be entitled to indemnification for Losses pursuant to this clause (y) in the aggregate in excess of $30,000,000 (the “Cap”), which Cap will be the maximum aggregate liability of the Corporation for all Losses incurred by the Purchasers and any other Persons arising pursuant to or in connection with this Agreement. For the avoidance of doubt, the Parties acknowledge and agree that the Deductible Amount and the Cap shall not apply to (i) the Corporation’s indemnification obligation for breaches of any of the representations and warranties contained in Sections 6.1, 6.2, 6.3, and 6.4 or to any breach of any covenants, and (ii) any Party’s rights to maintain or recover any amounts in connection with any action or claim based upon fraud or intentional misrepresentation. In the event that the Purchasers make an indemnification claim pursuant to this Section 8.6, the Purchasers shall be deemed to have suffered Losses with respect to such claim pro-rata based on the number of Series C Preferred shares held by each Purchaser on the date such Losses were incurred and any amounts payable by any Party with respect thereto shall be paid to each Purchaser on such pro-rata basisParties.

Survival of Representations and Warranties Indemnification. All 8.1 Survival of Representations, Warranties and Covenants. The parties, intending to contractually shorten the applicable statute of limitations, hereby agree that the representations and warranties of the Company and the Founders contained herein in Article II of this Agreement, or made in writing any certificate or other instrument delivered by any Party the Company and the Founders pursuant to this Agreement (the “Certificates”), and of the Company Stockholders contained in connection herewith shall survive the execution and delivery Article III of this Agreement and shall expire twelve (12) months following the consummation Closing Date (the date of expiration of such twelve (12) month period, the “Survival Date”); provided, however, that, in the event of fraud or the willful breach of any representation or warranty of the transactions contemplated hereby Company, the Founders, the Company Stockholders contained in this Agreement or the Certificates, such representation or warranty shall survive without limitation; provided further, that (regardless of any investigation made by any Party or on its behalf) as follows: (ai) the representations and warranties of the Company and the Founders contained in Section 6.1 2.10 (Organization), Section 6.2 (Equity Securities and Related Tax Matters), Section 6.3 (Subsidiaries; Investments) Section 6.4 (Authorization), Section 6.5 (No Contravention), Section 6.10 (Governmental and Regulatory Proceedings), Section 6.11 (Agreements and Regulatory Agencies), Section 6.13 (No Restrictions), Section 6.32 (Brokerage), Section 7.1 (Organization, Power and Authority) and Section 7.2 (Authorization) shall not terminate; survive until sixty (b60) days after the expiration of the statute time-bar under NZ Tax Law or applicable statutes of limitations, as applicable, (ii) the representations and warranties of the Company and the Founders contained in Section 6.17 2.13 (Tax MattersIntellectual Property) shall survive until second anniversary of the Closing Date, and (iii) the representations and warranties of the Company and the Founders contained in Section 2.1(a) (Organization of the Acquired Entities), Section 2.3 (Company Capital Structure), Section 2.4 (Authority and Enforceability), and Section 3.1 (Ownership of Company Shares) (such representations and warranties of the Company described in clauses (i), (ii) and Section 6.20 (ERISAiii) above, the “Surviving Representations”) shall survive without limitation; provided further, that the covenants of the Company and the Founders shall survive without limitation. The representations and warranties of Parent and Buyer contained in this Agreement and in any certificate or other instrument delivered pursuant to this Agreement shall terminate at the Closing. In the event an Officer’s Certificate asserting a breach of a representation or warranty is delivered before the date on which such representation or warranty ceases to survive (in the case of the representations and warranties that survive until the Survival Date, which survival period is not being extended beyond the Survival Date by this parenthetical, such delivery may be made before 5:00 p.m., local time at Buyer’s corporate headquarters in California, on the date that is fifteen (15) days after the Survival Date (the “Escrow Release Time”)), then the claims arising in connection with such Officer’s Certificate shall survive for the benefit of all Parent Indemnified Parties beyond the expiration of the applicable statutes of limitations with respect to the liabilities in question (after giving effect to any extensions or waivers thereof), plus thirty (30) days (the representations and warranties described in clauses (a) and (b) of this Section 8.6 collectively, the “Fundamental Representations and Warranties”); and (c) all other representations and warranties contained herein shall survive until the (30) days after the delivery to Purchasers of the audited financials survival period for fiscal year 2013; provided that any such representation or warranty in respect of which indemnity may be sought under this Section 8.6 and the indemnity with respect thereto shall survive the time at which it would otherwise terminate pursuant to the foregoing if notice of the inaccuracy or breach or potential inaccuracy or breach thereof giving rise to such right or alleged right of indemnity shall have been given to the Corporation prior to such time. In consideration of the Purchasers’ execution and delivery of this Agreement and purchase of the Series C Preferred, the Corporation shall indemnify, pay and defend the Indemnitees and hold each of them harmless against and pay on behalf of or reimburse such Indemnitees for any Losses which any such Indemnitee may suffer, sustain or become subject to as a result of or arising out of (x) any breach by the Corporation or any Subsidiary of any of their respective covenants or agreements contained in this Agreement or any of the Schedules or Exhibits hereto, and (y) any breach by the Corporation or any Subsidiary of any of their representations or warranties contained in this Agreement or any of the Schedules or Exhibits hereto; provided that, other than with respect to any breach of the representations and warranties contained in Sections 6.1, 6.2, 6.3, and 6.4, (i) the Indemnitees shall not be entitled to an indemnity from the Corporation pursuant to this clause (y) until the aggregate amount of Losses hereunder exceeds $500,000 in the aggregate (the “Deductible Amount”), in which case the Indemnitees shall be entitled to indemnification for Losses hereunder from the first dollar, and (ii) the Indemnitees shall not be entitled to indemnification for Losses pursuant to this clause (y) in the aggregate in excess of $30,000,000 (the “Cap”), which Cap will be the maximum aggregate liability of the Corporation for all Losses incurred by the Purchasers and any other Persons arising pursuant to or in connection with this Agreement. For the avoidance of doubt, the Parties acknowledge and agree that the Deductible Amount and the Cap shall not apply to (i) the Corporation’s indemnification obligation for breaches of any of the representations and warranties contained in Sections 6.1, 6.2, 6.3, and 6.4 or to any breach of any covenants, and (ii) any Party’s rights to maintain or recover any amounts in connection with any action or claim based upon fraud or intentional misrepresentation. In the event that the Purchasers make an indemnification claim pursuant to this Section 8.6, the Purchasers shall be deemed to have suffered Losses with respect to such claim pro-rata based on the number of Series C Preferred shares held by each Purchaser on the date such Losses were incurred and any amounts payable by any Party with respect thereto shall be paid to each Purchaser on such pro-rata basiswarranty.

Survival of Representations and Warranties Indemnification. All 6.1 Survival of Representations and Warranties Company’s and Sole Shareholder’s representations and warranties contained herein or made (each as modified by the Company Disclosure Schedule) set forth in writing by any Party in connection herewith Sections 2.1, 2.2, 2.4, and 3.8 and the corresponding obligations under Section 6.2(a) shall survive the execution Merger and delivery any applicable statute of this Agreement limitations; (ii) Company’s and the consummation of the transactions contemplated hereby (regardless of any investigation made by any Party or on its behalf) as follows: (a) the Sole Shareholder’s representations and warranties (each as modified by the Company Disclosure Schedule) set forth in Sections 2.9, and 2.23 and the corresponding obligations under Section 6.1 (Organization), Section 6.2 (Equity Securities and Related Matters), Section 6.3 (Subsidiaries; Investments) Section 6.4 (Authorization), Section 6.5 (No Contravention), Section 6.10 (Governmental and Regulatory Proceedings), Section 6.11 (Agreements and Regulatory Agencies), Section 6.13 (No Restrictions), Section 6.32 (Brokerage), Section 7.1 (Organization, Power and Authority) and Section 7.2 (Authorization6.2(a) shall not terminate; (b) survive the representations Merger and warranties contained in Section 6.17 (Tax Matters) and Section 6.20 (ERISA) shall terminate after the expiration of the applicable statutes of limitations with respect to the liabilities in question (after giving effect to any extensions or waivers thereof), plus continue until 11:59 p.m. Delaware time thirty (30) days (after the last day of the relevant time period set forth in the appropriate statute of limitations, at which point such representations and warranties described in clauses and obligations shall terminate; (a) and (b) of this Section 8.6 collectively, the “Fundamental Representations and Warranties”); and (ciii) all other representations and warranties contained herein shall survive until the (30) days after the delivery to Purchasers of the audited financials for fiscal year 2013; provided that any representation or warranty in respect of which indemnity may be sought under this Section 8.6 Company and the indemnity with respect thereto shall survive the time at which it would otherwise terminate pursuant to the foregoing if notice of the inaccuracy or breach or potential inaccuracy or breach thereof giving rise to such right or alleged right of indemnity shall have been given to the Corporation prior to such time. In consideration of the Purchasers’ execution and delivery of this Agreement and purchase of the Series C Preferred, the Corporation shall indemnify, pay and defend the Indemnitees and hold each of them harmless against and pay on behalf of or reimburse such Indemnitees for any Losses which any such Indemnitee may suffer, sustain or become subject to as a result of or arising out of (x) any breach by the Corporation or any Subsidiary of any of their respective covenants or agreements contained Sole Shareholder in this Agreement or in any of instrument delivered pursuant to this Agreement (each as modified by the Schedules or Exhibits heretoCompany Disclosure Schedule) and the corresponding obligations in Section 6.2(a) shall survive the Merger and continue until the 11:59 p.m. Delaware time on the date which is eighteen (18) months following the Effective Time at which point such representations and warranties and obligations shall terminate; (iv) Parent’s and Merger Sub’s representations and warranties (each as modified by the Parent Disclosure Schedule) set forth in Sections 4.1, 4.2, and 4.3 and the corresponding obligations under Section 6.2(b) shall survive the Merger and any applicable statute of limitations; and, (yv) any breach by the Corporation or any Subsidiary all other representations and warranties of any of their representations or warranties contained Parent and Merger Sub in this Agreement or in any instrument delivered pursuant to this Agreement (each as modified by the Parent Disclosure Schedule) and the corresponding obligations under Section 6.2(b) shall survive the Merger and continue until the 11:59 p.m. Delaware time on the date which is eighteen (18) months following the Effective Time at which point such representations and warranties and obligations shall terminate. The obligations of the Schedules or Exhibits hereto; provided that, other than parties hereunder with respect to any breach of the representations their respective covenants and warranties agreements contained in Sections 6.1, 6.2, 6.3, herein shall continue until such covenants and 6.4, (i) the Indemnitees shall not be entitled to an indemnity from the Corporation pursuant to this clause (y) until the aggregate amount of Losses hereunder exceeds $500,000 in the aggregate (the “Deductible Amount”), in which case the Indemnitees shall be entitled to indemnification for Losses hereunder from the first dollar, and (ii) the Indemnitees shall not be entitled to indemnification for Losses pursuant to this clause (y) in the aggregate in excess of $30,000,000 (the “Cap”), which Cap will be the maximum aggregate liability of the Corporation for all Losses incurred by the Purchasers and any other Persons arising pursuant to or in connection with this Agreement. For the avoidance of doubt, the Parties acknowledge and agree that the Deductible Amount and the Cap shall not apply to (i) the Corporation’s indemnification obligation for breaches of any of the representations and warranties contained in Sections 6.1, 6.2, 6.3, and 6.4 or to any breach of any covenants, and (ii) any Party’s rights to maintain or recover any amounts in connection with any action or claim based upon fraud or intentional misrepresentation. In the event that the Purchasers make an indemnification claim pursuant to this Section 8.6, the Purchasers shall be deemed to agreements have suffered Losses with respect to such claim pro-rata based on the number of Series C Preferred shares held by each Purchaser on the date such Losses were incurred and any amounts payable by any Party with respect thereto shall be paid to each Purchaser on such pro-rata basisbeen performed.

Survival of Representations and Warranties Indemnification. (a) All representations, warranties, agreements, covenants and obligations made or undertaken by Seller and Andrxxx xx this Agreement are, whether specified as such or not, the joint and several representations, warranties, agreements, covenants and obligations of Seller and Andrxxx, xxless otherwise specifically indicated to the contrary herein with respect to a particular representation, warranty, agreement, covenant or obligation; are material, have been relied upon by Buyer, shall survive the Closing hereunder, and shall not merge in the performance of any obligation by any party hereto; and, as to the representations and warranties, shall terminate or expire on the fifth (5th) anniversary of the Closing Date, provided that such representations and warranties contained herein shall not terminate or expire, but shall continue, during the pendency of any suit, action, claim or other proceeding brought in respect of such representations and warranties prior to the termination or expiration of such five (5) year period. Notwithstanding the above, all representations and warranties made by Seller and Andrxxx xx this Agreement that in writing by any Party in connection herewith shall survive manner relate to (1) tax matters, (2) environmental matters, and (3) title matters, or as to the execution terms and delivery performance of this Agreement and the consummation of the transactions contemplated hereby (regardless of any investigation made by any Party or on its behalf) as follows: (a) the representations and warranties in Section 6.1 (Organization), Section 6.2 (Equity Securities and Related Matters), Section 6.3 (Subsidiaries; Investments) Section 6.4 (Authorization), Section 6.5 (No Contravention), Section 6.10 (Governmental and Regulatory Proceedings), Section 6.11 (Agreements and Regulatory Agencies), Section 6.13 (No Restrictions), Section 6.32 (Brokerage), Section 7.1 (Organization, Power and Authority) and Section 7.2 (Authorization) shall not terminate; (b) the representations and warranties contained in Section 6.17 (Tax Matters) and Section 6.20 (ERISA) shall terminate after the expiration of the applicable statutes of limitations with respect to the liabilities in question (after giving effect to any extensions or waivers thereof), plus thirty (30) days (the representations and warranties described in clauses (a) and (b) of this Section 8.6 collectively, the “Fundamental Representations and Warranties”"Special Matters"); and (c) all other representations and warranties contained herein shall survive until the (30) days after the delivery to Purchasers of the audited financials for fiscal year 2013; provided that any representation or warranty in respect of which indemnity may be sought under this Section 8.6 and the indemnity with respect thereto shall survive the time at which it would otherwise terminate pursuant to the foregoing if notice of the inaccuracy or breach or potential inaccuracy or breach thereof giving rise to such right or alleged right of indemnity shall have been given to the Corporation prior to such time. In consideration of the Purchasers’ execution and delivery of this Agreement and purchase of the Series C Preferred, the Corporation shall indemnify, pay and defend the Indemnitees and hold each of them harmless against and pay on behalf of or reimburse such Indemnitees for any Losses which any such Indemnitee may suffer, sustain or become subject to as a result of or arising out of (x) any breach by the Corporation or any Subsidiary of any of their respective covenants or agreements contained in this Agreement or any of the Schedules foregoing, shall terminate or Exhibits heretoexpire only upon the termination or expiration of all applicable statutes of limitation. All representations, warranties, agreements, covenants and (y) any breach obligations made or undertaken by the Corporation or any Subsidiary of any of their representations or warranties contained Buyer in this Agreement or shall survive the Closing hereunder, and shall not merge in the performance of any of the Schedules or Exhibits obligation by any party hereto; provided thatand, other than with respect as to any breach of the representations and warranties contained in Sections 6.1warranties, 6.2, 6.3, and 6.4, shall terminate or expire on the fifth (iTh) the Indemnitees shall not be entitled to an indemnity from the Corporation pursuant to this clause (y) until the aggregate amount of Losses hereunder exceeds $500,000 in the aggregate (the “Deductible Amount”), in which case the Indemnitees shall be entitled to indemnification for Losses hereunder from the first dollar, and (ii) the Indemnitees shall not be entitled to indemnification for Losses pursuant to this clause (y) in the aggregate in excess of $30,000,000 (the “Cap”), which Cap will be the maximum aggregate liability anniversary of the Corporation for all Losses incurred by the Purchasers and any other Persons arising pursuant to or in connection with this Agreement. For the avoidance of doubtClosing Date, the Parties acknowledge and agree provided that the Deductible Amount and the Cap shall not apply to (i) the Corporation’s indemnification obligation for breaches of any of the such representations and warranties contained in Sections 6.1shall not terminate or expire, 6.2but shall continue, 6.3, and 6.4 or to any breach during the pendency of any covenantssuit, action, claim or other proceeding brought in respect of such representations and warranties prior to the termination or expiration of such five (ii5) any Party’s rights to maintain or recover any amounts in connection with any action or claim based upon fraud or intentional misrepresentation. In the event that the Purchasers make an indemnification claim pursuant to this Section 8.6, the Purchasers shall be deemed to have suffered Losses with respect to such claim pro-rata based on the number of Series C Preferred shares held by each Purchaser on the date such Losses were incurred and any amounts payable by any Party with respect thereto shall be paid to each Purchaser on such pro-rata basisyear period.

Survival of Representations and Warranties Indemnification. All representations representations, warranties and warranties contained herein or made in writing by any Party in connection herewith shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby (regardless of any investigation made by any Party or on its behalf) as follows: (a) the representations and warranties in Section 6.1 (Organization), Section 6.2 (Equity Securities and Related Matters), Section 6.3 (Subsidiaries; Investments) Section 6.4 (Authorization), Section 6.5 (No Contravention), Section 6.10 (Governmental and Regulatory Proceedings), Section 6.11 (Agreements and Regulatory Agencies), Section 6.13 (No Restrictions), Section 6.32 (Brokerage), Section 7.1 (Organization, Power and Authority) and Section 7.2 (Authorization) shall not terminate; (b) the representations and warranties contained in Section 6.17 (Tax Matters) and Section 6.20 (ERISA) shall terminate after the expiration of the applicable statutes of limitations with respect to the liabilities in question (after giving effect to any extensions or waivers thereof), plus thirty (30) days (the representations and warranties described in clauses (a) and (b) of this Section 8.6 collectively, the “Fundamental Representations and Warranties”); and (c) all other representations and warranties contained herein shall survive until the (30) days after the delivery to Purchasers of the audited financials for fiscal year 2013; provided that any representation or warranty in respect of which indemnity may be sought under this Section 8.6 and the indemnity with respect thereto shall survive the time at which it would otherwise terminate pursuant to the foregoing if notice of the inaccuracy or breach or potential inaccuracy or breach thereof giving rise to such right or alleged right of indemnity shall have been given to the Corporation prior to such time. In consideration of the Purchasers’ execution and delivery of this Agreement and purchase of the Series C Preferred, the Corporation shall indemnify, pay and defend the Indemnitees and hold each of them harmless against and pay on behalf of or reimburse such Indemnitees for any Losses which any such Indemnitee may suffer, sustain or become subject to as a result of or arising out of (x) any breach by the Corporation or any Subsidiary of any of their respective covenants or agreements contained in this Agreement shall survive the Closing for a period of six (6) months, notwithstanding any investigation conducted with respect thereto; however, a party shall have no liability with respect to a representation and warranty, or an agreement to be performed or complied with prior to the Closing Date, to the extent that the inaccuracy of such representation and warranty or the failure to perform and comply with such agreement was not intentional and was disclosed in a schedule delivered pursuant to this Agreement. Both the Company and DRGR agree to hold each other harmless on any act either performs other than acts of gross negligence, malfeasance, fraud, theft in their efforts to perform under this Agreement. DRGR and its Chairman/Chief Executive Officer asserts and indemnifies that DRGR has no pending litigation or disputes of any kind that could ultimately result in litigation. Furthermore, each of the Schedules respective parties have conducted, or Exhibits will conduct, and are relying solely on their own independent research, investigation and due diligence of each other, the Company, DRGR, and the merits of the proposed transaction set forth herein. All the parties hereto, and (y) any breach by their individual representatives, agents, and officers release and hold harmless Xxxxx X. Xxxxxx, P.A. and Xxxxx X. Xxxxxx, Esquire, and acknowledge that he and his firm have provided no advice or legal opinions to either side regarding the Corporation merits of the transaction, or any Subsidiary legal issues involving securities or transactional law. The parties herein have been advised of any the recommendation to hire respective securities counsel to properly advise them of their representations or warranties contained in this Agreement or any of the Schedules or Exhibits hereto; provided thatrights, other than with respect to any breach of the representations and warranties contained in Sections 6.1responsibilities, 6.2, 6.3obligations, and 6.4, (i) the Indemnitees shall not be entitled to an indemnity from the Corporation ramifications pursuant to this clause (y) until the aggregate amount of Losses hereunder exceeds $500,000 in the aggregate (the “Deductible Amount”), in which case the Indemnitees shall be entitled to indemnification for Losses hereunder from the first dollar, and (ii) the Indemnitees shall not be entitled to indemnification for Losses pursuant to this clause (y) in the aggregate in excess of $30,000,000 (the “Cap”), which Cap will be the maximum aggregate liability of the Corporation for all Losses incurred by the Purchasers and any other Persons arising pursuant to or in connection with transaction contemplated within this Agreement. For the avoidance of doubt, the Parties acknowledge and agree that the Deductible Amount and the Cap shall not apply to (i) the Corporation’s indemnification obligation for breaches of any of the representations and warranties contained in Sections 6.1, 6.2, 6.3, and 6.4 or to any breach of any covenants, and (ii) any Party’s rights to maintain or recover any amounts in connection with any action or claim based upon fraud or intentional misrepresentation. In the event that the Purchasers make an indemnification claim pursuant to this Section 8.6, the Purchasers shall be deemed to have suffered Losses with respect to such claim pro-rata based on the number of Series C Preferred shares held by each Purchaser on the date such Losses were incurred and any amounts payable by any Party with respect thereto shall be paid to each Purchaser on such pro-rata basis.