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This excerpt taken from the MDU 10-Q filed Aug 7, 2008. Survival. The
pre-Closing covenants of the parties set forth in this Agreement and the related
rights of the Purchaser Indemnified Parties or the Seller Indemnified Parties,
as the case may be, to indemnity with respect to any breach thereof in
accordance with the applicable Sections hereof shall survive the Closing and the
consummation of the transactions contemplated by this Agreement until the one
(1) year anniversary of the Closing Date unless a shorter period of performance
is specified with respect to such covenant. The representations and
warranties of the parties contained in this Agreement other than the
representations and warranties of Seller set forth in Section 3.2
(Authorization), Section 3.5 (Capital Structure; Subsidiaries), Section 3.12
(Taxes) or Section 3.14 (Employee Benefit Plans), the representations and
warranties of Purchaser set forth in Section 4.2 (Authorization), Section 4.8
(Solvency), and Section 4.9 (Foreign Persons), and the related rights of the
Purchaser Indemnified Parties or the Seller Indemnified Parties, as the case may
be, to indemnity with
51
respect
to any breach thereof in accordance with the applicable Sections hereof, shall
survive the Closing for a period of eighteen (18) months following the Closing
Date. Notwithstanding the foregoing provisions of this Section 8.3,
but subject to the other provisions of this Article VIII, the representations
and warranties of Seller set forth in (i) Section 3.2 (Authorization), Section
3.5 (Capital Structure; Subsidiaries) and Section 3.12 (Taxes), and the
representations and warranties of Purchaser set forth in Section 4.2
(Authorization), Section 4.8 (Solvency) and Section 4.9 (Foreign Persons), and
the related rights of the Purchaser Indemnified Parties or the Seller
Indemnified Parties, as the case may be, to indemnity with respect to any breach
thereof in accordance with the applicable Sections hereof, shall survive the
Closing until the fourth (4th)
anniversary of the Closing Date, and (ii) Section 3.14 (Employee Benefit Plans),
and the related rights of the Purchaser Indemnified Parties to indemnity with
respect to any breach thereof in accordance with the applicable Sections hereof,
shall survive the Closing until the third (3rd)
anniversary of the Closing Date. The parties hereto hereby acknowledge and agree
that any bona fide claim (and only such bona fide claim, but not the related
representations and warranties) for indemnification made in writing in
accordance with the terms of this Article VIII on or prior to the applicable
expiration date with respect to any such claim as set forth herein shall survive
the Closing and any such applicable expiration date until the final resolution
thereof.
Section
8.4 |
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