Riverbed Technology (RVBD)

9.1 Survival of Representations, Etc.

(a) General Survival. Subject to Section 9.1(b) and Section 9.1(d), the representations and warranties made by the Company in this Agreement and the representations and warranties set forth in the Company Closing Certificate and the Merger Consideration Certificate, in each case other than the Specified Representations, shall survive the Effective Time and shall expire on the first anniversary of the Closing Date (the “Termination Date”); provided, however, that if, at any time prior to the Termination Date, any Indemnitee (acting in good faith) delivers to the Stockholders’ Agent a written notice alleging the existence of an inaccuracy in or a breach of any of such representations and warranties and asserting a claim for recovery under Section 9.2 based on such alleged inaccuracy or breach, then the claim asserted in such notice shall survive the Termination Date until such time as such claim is fully and finally resolved.

(b) Specified Representations. Notwithstanding anything to the contrary contained in Section 9.1(a), but subject to Section 9.1(d), the Specified Representations (other than the representations and warranties set forth in Section 2.14, which shall survive until 30 days after the expiration of the statute of limitations applicable thereto (including any extensions thereof)) shall survive the Effective Time until the earlier of: (i) 30 days after the expiration of the statute of limitations applicable thereto (including any extensions thereof); or (ii) the third anniversary of the Closing Date; provided, however, that if, at any time prior to the applicable expiration date referred to in this sentence, any Indemnitee (acting in good faith) delivers to the Stockholders’ Agent a written notice alleging the existence an inaccuracy in or a breach of any of such Specified Representations and asserting a claim for recovery under Section 9.2 based on such alleged inaccuracy or breach, then the claim asserted in such notice shall survive the Termination Date until such time as such claim is fully and finally resolved.

(c) Parent Representations. All representations and warranties made by Parent and Merger Sub shall terminate and expire as of the Effective Time, and any liability of Parent or Merger Sub with respect to such representations and warranties shall thereupon cease.

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(d) Intentional Misrepresentation; Fraud. Notwithstanding anything to the contrary contained in Section 9.1(a) or Section 9.1(b), the limitations set forth in Section 9.1(a) and 9.1(b) shall not apply in the case of claims based upon intentional misrepresentation or fraud. For the purposes of this Section 9, the term “fraud” is intended to encompass circumstances involving a misrepresentation made knowingly, intentionally or with reckless indifference to the truth, rather than mere negligence or gross negligence.

(e) Representations Not Limited. The representations, warranties, covenants and obligations of the Company, Parent and Merger Sub, and the rights and remedies that may be exercised by the Indemnitees, shall not be limited or otherwise affected by or as a result of any information furnished to, or any investigation made by or knowledge of, any of the Indemnitees or any of their Representatives. Notwithstanding anything contained in this Agreement, no party hereto makes any representations or warranties whatsoever as to the accuracy of any estimates, projections, forecasts and budgets (it being understood, however, that: (i) the Company represents and warrants to Parent that all such estimates, projections, forecasts and budgets have been prepared in good faith based upon assumptions and information that the Company reasonably believed to be true and correct as of the time such estimates, projections, forecasts or budgets were made available to Parent; and (b) no provision in this sentence or elsewhere in this Agreement shall limit any party’s rights or remedies in the case of fraud).

(f) Disclosure Schedule. For purposes of this Agreement, each statement or other item of information set forth in the Disclosure Schedule or in any update to the Disclosure Schedule shall be deemed to be a representation and warranty made by the Company in this Agreement.