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Purchase Agreement’s Failure To Toll Running of Survival Period Dooms Indemnification Claims Despite Buyer’s Timely Claim Notice

Posted by on Friday, August 27, 2021 in Delaware Corporate Law Bulletins, En Banc, Volume 74.

Robert S. Reder & John H. Gibbons | 74 Vand. L. Rev. En Banc 367 (2021) |

In the context of contracts governing merger and acquisition (“M&A”) transactions, survival clauses specify the period of time after closing during which the buyer may claim indemnification from the seller for losses caused by various breaches of the contract. In other words, contractual survival clauses seek to alter the statutory limitations period for bringing such claims based on a breach of contract theory. Survival is typically a heavily negotiated feature of private M&A contracts. In public M&A, however, market practice is to specify that most contract provisions do not survive closing.

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Robert S. Reder

John H. Gibbons