Flag Surviving Provisions After Termination

You are an M&A solicitor in England and Wales reviewing a Share Purchase Agreement (SPA) governed by English law that may be terminated before completion.

Please identify and list all provisions that expressly survive termination of the agreement.

**For each surviving provision, provide:**

1. **Clause reference** (e.g., "Clause 15.3 - Confidentiality")

2. **What survives** (brief description of the obligation)

3. **Duration of survival**:
   - Indefinite survival?
   - Time-limited (if so, how long)?
   - Until occurrence of specific event?

4. **Parties bound** (Buyer only, Seller only, or Both)

5. **Practical impact**: What does this mean in practice?

**Specifically look for survival of:**
- Confidentiality and data protection obligations
- Exclusivity (lock-out) provisions
- Cost and expense allocation
- Indemnities for pre-termination breaches
- Limitations on liability (caps, baskets, time limits)
- Governing law and jurisdiction
- Announcements and publicity restrictions
- Return/destruction of documents and information
- Non-solicitation of employees
- Anti-embarrassment provisions

**Flag any notable provisions**:
- Unusual survival terms
- Asymmetric obligations (survives for one party but not the other)
- Open-ended survival (no time limit)
- Strict confidentiality obligations that may hinder future deals

**Format**: Present as a numbered list with clear headings

[PASTE SPA TERMINATION CLAUSE AND ANY SECTIONS REFERENCING "SURVIVAL" OR "SURVIVE TERMINATION"]

Extraction: Pulls all references to "survive," "survival," and "surviving" from the SPA

Categorisation: Organises surviving provisions by type (confidentiality, costs, liability, etc.)

Duration analysis: Identifies how long each obligation survives

Imbalance detection: Flags asymmetric survival terms

Practical translation: Explains what surviving provisions mean for clients

Paste the following SPA sections:

• Termination clause (usually includes "Effect of Termination" sub-section)
• Confidentiality clause
• Costs and Expenses clause
• Any clauses that reference "survive" or "surviving"

The AI will produce something like:

Surviving Provisions

1. Confidentiality (Clause 16.2)

• What survives: All confidentiality obligations regarding business, financial, and customer information disclosed during due diligence
• Duration: 3 years from date of termination
• Parties bound: Both Buyer and Seller
• Impact: Parties cannot use or disclose DD information for 3 years post-termination
• [NOTE: Standard market term]

2. Costs and Expenses (Clause 14.5)

• What survives: Each party bears its own costs and expenses
• Duration: Indefinite
• Parties bound: Both
• Impact: No reimbursement of transaction costs if deal terminates
• [FLAG: Buyer paid £200K in DD costs - these are not recoverable]

3. Exclusivity (Clause 18.1)

• What survives: Seller's exclusivity obligation continues for 6 months post-termination
• Duration: 6 months from termination date
• Parties bound: Seller only
• Impact: Seller cannot solicit or entertain competing offers for 6 months
• [FLAG: Unusual - 6-month post-termination exclusivity is very seller-unfavourable. Compare against your precedents: exclusivity more often falls away on termination]

4. Announcements (Clause 17.3)

• What survives: Prohibition on public announcements without consent
• Duration: 12 months from termination
• Parties bound: Both
• Impact: Neither party can publicly announce deal terms or reasons for termination without the other's consent
• [NOTE: Standard - protects reputation of both parties]

5. Return of Information (Clause 16.4)

• What survives: Obligation to return or destroy all DD materials within 10 business days of termination
• Duration: Immediate (10 business days to comply, then obligation satisfied)
• Parties bound: Buyer (Seller has no similar obligation)
• Impact: Buyer must return/destroy all VDR documents promptly
• [NOTE: Standard buyer obligation]

6. Governing Law and Jurisdiction (Clause 22)

• What survives: English law governs; English courts have exclusive jurisdiction
• Duration: Indefinite
• Parties bound: Both
• Impact: Any disputes arising from the SPA (even post-termination) are governed by English law
• [NOTE: Standard boilerplate]

7. Limitations on Liability (Clause 13)

• What survives: Caps, baskets, and time limits on liability for pre-termination breaches
• Duration: Applies to any claims brought post-termination for pre-termination breaches
• Parties bound: Both
• Impact: Even if deal terminates, liability for warranty breaches before termination is capped at £5M
• [IMPORTANT: Survival of liability caps is critical - preserves limitations even after deal ends]

• Summarise Termination Rights - Understand when and how parties can terminate
• Check Confidentiality Obligations - Deep dive on what information is protected and for how long

Practice Area: Corporate & M&A Document Type: Share Purchase Agreement (SPA) Difficulty: Beginner Estimated Time: 10 minutes