SHALL BE PENDING BEFORE ANY COURT
OR QUASI-JUDICIAL OR ADMINISTRATIVE AGENCY OF ANY FEDERAL, STATE, LOCAL, OR
FOREIGN JURISDICTION OR BEFORE ANY ARBITRATOR WHEREIN AN UNFAVORABLE INJUNCTION,
JUDGMENT, ORDER, DECREE, RULING, OR CHARGE WOULD (A) PREVENT CONSUMMATION OF ANY
OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR (B) CAUSE ANY OF THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT TO BE RESCINDED FOLLOWING
CONSUMMATION (AND NO SUCH INJUNCTION, JUDGMENT, ORDER, DECREE, RULING, OR CHARGE
SHALL BE IN EFFECT);
(IV)
BUYER SHALL HAVE DELIVERED TO SELLER A CERTIFICATE, EXECUTED BY AN
AUTHORIZED OFFICER OF BUYER, TO THE EFFECT THAT EACH OF THE CONDITIONS SPECIFIED
ABOVE IN SECTION 7(B)(I)-(III) IS SATISFIED IN ALL RESPECTS;
(V)
SELLER AND BUYER SHALL HAVE RECEIVED ALL MATERIAL AUTHORIZATIONS,
CONSENTS, AND APPROVALS OF GOVERNMENTS AND GOVERNMENTAL AGENCIES REFERRED TO IN
SECTION 3(C) AND SECTION 4(C) ABOVE;
(VI)
THE BUYER AND THE SELLER SHALL HAVE ENTERED INTO EACH OF THE
TRANSITION SERVICES AGREEMENT, PATENT LICENSE AGREEMENT, THE OVERSTOCK INVENTORY
AGREEMENT AND THE TRADEMARK LICENSE AGREEMENT AND ALL OF THE SAME SHALL BE IN
FULL FORCE AND EFFECT;
(VII)
SELLER SHALL HAVE RECEIVED FROM COUNSEL AND LOCAL COUNSEL TO BUYER
OPINIONS IN FORM AND SUBSTANCE AS SET FORTH IN EXHIBIT F ATTACHED HERETO,
ADDRESSED TO SELLER AND DATED AS OF THE CLOSING DATE;
(VIII)
ALL ACTIONS TO BE TAKEN BY BUYER IN CONNECTION WITH CONSUMMATION
OF THE TRANSACTIONS CONTEMPLATED HEREBY AND ALL CERTIFICATES, OPINIONS,
INSTRUMENTS, AND OTHER DOCUMENTS REQUIRED TO EFFECT THE TRANSACTIONS
CONTEMPLATED HEREBY WILL BE REASONABLY SATISFACTORY IN FORM AND SUBSTANCE TO
SELLER;
(IX)
THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT, AND
ALL OTHER RELATED MATTERS, SHALL HAVE BEEN APPROVED BY THE BOARDS OF DIRECTORS
OF SELLER AND OF BLYTH; AND
(X)
BUYER SHALL HAVE PAID THE PURCHASE PRICE TO SELLER.
Seller may waive any condition specified in this Section 7(b) if it executes a
writing so stating at or prior to the Closing.
SECTION 8.
REMEDIES FOR BREACHES OF THIS AGREEMENT.
27
(A)
SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
ALL OF THE
REPRESENTATIONS AND WARRANTIES OF BUYER AND SELLER CONTAINED IN THIS AGREEMENT
SHALL SURVIVE THE CLOSING AND CONTINUE IN FULL FORCE AND EFFECT FOR A PERIOD OF
FIFTEEN MONTHS THEREAFTER; PROVIDED, HOWEVER, THAT THE REPRESENTATIONS AND
WARRANTIES CONTAINED IN: (I) SECTIONS 3(B), 3(D) AND 3(E) AND SECTIONS 4(B) AND
(D) SHALL SURVIVE THE CLOSING AND CONTINUE IN FULL FORCE AND EFFECT
INDEFINITELY; AND (II) SECTIONS 3(N) AND (P) SHALL SURVIVE THE CLOSING AND
CONTINUE IN FULL FORCE AND EFFECT UNTIL THE 90TH DAY FOLLOWING THE APPLICABLE
STATUTE OF LIMITATIONS.
(B)
INDEMNIFICATION PROVISIONS FOR BUYER'S BENEFIT.
(I)
IN THE EVENT SELLER BREACHES ANY OF ITS REPRESENTATIONS,
WARRANTIES, AND COVENANTS CONTAINED IN THIS AGREEMENT, AND, PROVIDED THAT BUYER
MAKES A WRITTEN CLAIM FOR INDEMNIFICATION AGAINST SELLER PURSUANT TO SECTIONS
8(D) AND 10(G) BELOW WITHIN THE SURVIVAL PERIOD (IF THERE IS AN APPLICABLE
SURVIVAL PERIOD PURSUANT TO SECTION 8(A) ABOVE), THEN SELLER AGREES TO INDEMNIFY
BUYER FROM AND AGAINST THE ENTIRETY OF ANY ADVERSE CONSEQUENCES BUYER MAY SUFFER
(INCLUDING