Making Sure Your Survival Periods Work As Intended
Law360, New York ( March 4, 2016, 10:03 AM EST) -- A private equity firm is the buyer of a business that has just received a letter from one of that purchased business' customers stating that the customer "believes" that the purchased company may have violated its contract with that customer. The letter states that the customer is investigating the matter and requests information to assist in that investigation. The facts the customer is investigating relate to a period of time prior to the buyer's purchase of the business. In the stock purchase agreement pursuant to which the buyer acquired the business, the seller represented that this contract was in full force and effect and the company was not in default. The buyer believes this could be a major problem as the customer accounts for 25 percent of the company's business and, if the facts are true, the customer could potentially terminate the contract. So, the buyer determines that it should send out a claim notice under the indemnification procedures set forth in the stock purchase agreement "to preserve its claim," as the survival period for the representations and warranties expires in the next few days....
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