Liability of the Sellers. 15.1.1 Except as provided under Paragraph 15.1.4 below, any liability of the Sellers under this Agreement deriving from the indemnification obligations according to Article 12 for breach of representations and warranties shall be borne by the same in proportion to, respectively, the Alcedo Share, the Cap2 Share and the CEO Share and therefore any joint and several liability of the Sellers in this respect is expressly excluded. 15.1.2 Contingent upon the transfer of the Retained Shares to the Buyer as provided in the Put and Call Option Agreement, Cap2 shall be liable under this Agreement for any liability deriving from the indemnification obligations according to Article 12 for breach of representations and warranties also in proportion to the Retained Shares. 15.1.3 In case of breach of any covenant or obligation under this Agreement by any of the Sellers (other than indemnification obligations according to Article 12 for breach of representations and warranties), the Seller in breach shall be solely responsible for such breach and therefore any joint and several liability of the Sellers in this respect is expressly excluded. 15.1.4 The Shareholders agree that, with respect to the indemnification obligations provided by Article 12 of this Agreement, they shall be jointly and severally liable to the Buyer within the limit of the Alcedo Escrow Amount and of the proceeds of the sale or the enforcement of the pledge on the Retained Shares. 15.1.5 Any liability of Cap2 under this Agreement (deriving from the indemnification obligations according to Article 12 or otherwise) shall be borne also in proportion to the Retained Shares, subject however to the condition precedent of the transfer of the same to the Buyer as provided in the Put and Call Option Agreement. 15.1.6 Any liability of CEO under this Agreement (deriving from the indemnification obligations according to Article 12 or otherwise) shall be borne also in proportion to the CEO Contingent Share, subject however to the condition precedent of the transfer of the same to the Buyer as provided in the Put and Call Option Agreement
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Samples: Sale and Purchase Agreement, Sale and Purchase Agreement (Vistaprint N.V.)
Liability of the Sellers. 15.1.1 Except as provided under Paragraph 15.1.4 below, any liability of the Sellers under this Agreement deriving from the indemnification obligations according to Article 12 for breach of representations and warranties shall be borne by the same in proportion to, respectively, the Alcedo Share, the Cap2 Share and the CEO Share and therefore any joint and several liability of the Sellers in this respect is expressly excluded.
15.1.2 Contingent upon the transfer of the Retained Shares to the Buyer as provided in the Put and Call Option Agreement, Cap2 shall be liable under this Agreement for any liability deriving from the indemnification obligations according to Article 12 for breach of representations and warranties also in proportion to the Retained Shares.
15.1.3 In case of breach of any covenant or obligation under this Agreement by If any of the Seller's Representations or Warranties contained in this Agreement is deemed to be incorrect or if any of the Sellers' Covenants set forth in this Agreement is not complied with the Sellers (other than indemnification obligations according shall initially bring about the situation or an economically equivalent situation to Article 12 that which would have existed had the obligation not been breached. If this is not possible or reasonable or if such situation is not brought about even after the expiration of a reasonable grace period, the Sellers shall compensate the Purchaser for all damages pursuant to the following provisions which would not have been incurred had the breach of representations the obligation not occurred. In the case of Representations or Warranties, this applies regardless of whether or not the breach of them is due to the fault of the Sellers. The Sellers' liability is, however, subject to the following limitations:
(a) The Purchaser shall have the right to claim indemnification or damages only to the extent that the aggregate amount of such claims is in excess of EUR 5,000,000.00, and warrantiesthe Sellers shall be only liable for the amount in excess of EUR 5,000.000.00 (the "Deductible"). The Sellers' maximum liability for any claims by the Purchaser shall in any case be limited to 40% of the Base Purchase Price (i.e. USD 268,065,800 - in words: United States Dollars two hundred sixty eight million sixty five thousand eight hundred), unless such limitation is prohibited by mandatory law.
(b) In the Seller in breach shall be solely responsible event that the Purchaser is entitled to demand damages pursuant to this Agreement, the Sellers may, at their option, satisfy the claim for such breach and therefore damages (i) through cash payment; (ii) at any joint and several liability time within the first year starting with the Closing Date through return of a portion of the Sellers in this respect is expressly excluded.
15.1.4 The Shareholders agree that, with respect to Exchange Shares accepted as part of the indemnification obligations provided by Article 12 Purchase Price under Section 2.02 of this Agreement, they whereby the precise number of shares to be returned shall be calculated by using a value of USD 16.09 per Exchange Share or (iii) through any combination of (i) and (ii).
(c) Each Seller - except for KPMG DTG who shall be jointly and severally liable (gesamtschuldnerische Haftung) - shall only be liable for a portion of the total damage equal to the Buyer within proportion that the limit Company Shares being sold by such Seller set forth in the table in Schedule 7.01 (c) bears to the total number of Company Shares being sold by all Sellers set forth in such table (teilschuldnerische Haftung). In no event shall the Sellers, except where expressly set forth in this Agreement, be jointly and severally liable (gesamtschuldnerisch haften).
(d) The Sellers' liability is also excluded where and to the extent that:
(i) the Company, its Subsidiaries or the Purchaser does not incur damages from such breach of any obligation set forth in this Agreement, or the inaccuracy of a Representation and Warranty; or
(ii) the circumstances in violation of the Alcedo Escrow Amount and obligations set forth in this Agreement had already been specifically taken into account in the Financial Statements or the Net Adjustment; or
(iii) the damage arising from the incorrectness or incompleteness of the proceeds Representation and Warranty is covered by a valid and enforceable claim under insurance held by the Company or its Subsidiaries which the Company or its Subsidiaries held at the Closing Date (net of any adverse insurance consequences directly and actually incurred, such as premium adjustments and other detriments); or
(iv) the damage incurred by the Purchaser or the Company or its Subsidiaries arises from or is increased by any change in generally accepted accounting principles applicable to the Company or its Subsidiaries after 31 December 2001 or from or by the passage of any legislation, or enactment of any subordinate legislation after the date of signing of this Agreement; or
(v) the damage incurred by the Purchaser or the Company or its Subsidiaries arises from or is increased by an increase in the rates, method of calculation or scope of taxation after 31 December 2001; or
(vi) the damage incurred by the Purchaser or the Company or its Subsidiaries is reduced by corresponding tax advantages; or
(vii) after the Closing Date, the Company, its Subsidiaries or the Purchaser did not do or did not refrain from doing what a prudent businessman would have done or refrained from doing in order to avert or prevent the damage (Schadensminderungspflicht).
(e) With the exception of the sale Representations and Warranties expressly set forth in this Agreement, the Sellers do not make any representations or warranties of any nature to the Purchaser in respect of the legal or commercial conditions of the Company or its Subsidiaries or otherwise; in particular, the Sellers do not make any representations or warranties as to the continuation of the current financial or earnings situation of the Company or its Subsidiaries or as to the reliability of the Company's or the enforcement Subsidiaries' budgets and other planning. It is further agreed that any further claims of whatever nature (under law or otherwise), with the exception of the pledge on Representations and Warranties set forth in Article 7 of this Agreement, are hereby excluded and waived unless any such exclusion or waiver is precluded as a matter of mandatory law (sec. 276 para. 3 of the Retained Shares.
15.1.5 Any liability German Civil Code - BGB). Unless otherwise expressly provided in this Agreement, any rights of Cap2 the Purchaser to rescission, damages because of delay, non-performance - in particular with respect to defects (Xxxxxx, Fehler) and the rights under secs. 434, 435, 439, 442 and 443 of the German Civil Code (BGB n.F.), to compensation of consequential damage (Folgeschaden), damages for misrepresentation (Schadenersatz wegen Garantie), voidance of this Agreement (deriving from the indemnification obligations according to Article 12 or otherwise) shall be borne also in proportion to the Retained Shares, subject however to the condition precedent because of the transfer lack of essential qualities (Anfechtung wegen des Fehlens einer wesentlichen Eigenschaft), positive breach of contract (positive Vertragsverletzung) or culpa in contrahendo (Verschulden bei Vertragsanbahnung) pursuant to secs. 280, 311 of the same to the Buyer as provided in the Put and Call Option Agreement.
15.1.6 Any liability of CEO under this Agreement German Civil Code (deriving from the indemnification obligations according to Article 12 or otherwise) shall be borne also in proportion to the CEO Contingent Share, subject however to the condition precedent of the transfer of the same to the Buyer as provided in the Put and Call Option AgreementBGB n.
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Liability of the Sellers. 15.1.1 Except For the purpose of this Article 9, it is agreed as provided under Paragraph 15.1.4 belowfollows:
i) From and after the Closing Date, the Sellers shall indemnify and hold harmless the Purchaser pursuant to Section 9.1 for any liability and all Losses incurred by the Purchaser and/or the Companies pursuant to this Agreement (hereinafter, the "Purchaser's Losses"). Each of the Sellers under shall indemnify the Purchaser for that portion of the Purchaser's Losses equivalent to such Seller's Initial Purchase Price Fraction thereof, provided, that Gianxxxxx Xxxchello's guarantee pursuant to Section 9.2 a) iv) and 9.2 (a) (v) shall not be limited by this Agreement deriving from Section 9.1 a) i), and further provided, that the indemnification obligations according amount of the Purchaser's Losses allocable to Article 12 for breach Gerance in excess of representations and warranties the limit set forth in Section 9.8 e) shall be borne indemnified by each Seller in the same in proportion to, respectivelythat the number of Speedline Shares owned by such Seller immediately prior to the Closing bears to the total number of issued and outstanding Speedline Shares excluding those Speedline Shares owned by Gerance.
ii) The Parties hereby agree (but without limitation upon Section 2.4.2(b)) that at and as of the dates set forth below, the Alcedo Share, the Cap2 Share and the CEO Share and therefore Sellers' obligations (x) to pay any joint and several liability of the Sellers in this respect is expressly excluded.
15.1.2 Contingent upon the transfer of the Retained Shares adjustments to the Buyer as provided in Purchase Price under Article 2, (y) to indemnify the Put and Call Option Agreement, Cap2 shall be liable Purchaser's Losses under this Agreement for any liability deriving from the indemnification obligations according to Article 12 for breach of representations and warranties also in proportion to the Retained Shares.
15.1.3 In case of breach of any covenant or obligation under this Agreement by any of the Sellers (other than indemnification obligations according to Article 12 for breach of representations and warranties), the Seller in breach shall be solely responsible for such breach and therefore any joint and several liability of the Sellers in this respect is expressly excluded.
15.1.4 The Shareholders agree that, with respect to the indemnification obligations provided by Article 12 9 of this Agreement, they and (z) to pay any costs or expenses of the Environmental Permitting and Remediation Plan in excess of those paid from Environmental Holdback Amount shall be jointly secured by the Deferred Payment, the Additional Purchase Price Shares, and severally any amount of the Contingent Payment owed to the Sellers, in the amounts set forth below as to each date:
A) on the Closing Date, $ 16,500,000 plus the full amount of the Contingent Payment to the extent same shall become available for payment ("Guaranty Amount I);
B) on the Second Anniversary, the amount of any Claims of Indemnity pending but not yet paid on such date, plus the lesser of (1) Guaranty Amount I less Claims of Indemnity paid to the Purchaser between the Closing Date and the -34- 39 Second Anniversary, and (2) $6,500,000.00 plus the amount of the Contingent Payment to the extent available for payment ("Guaranty Amount II");
C) on January 1, 2000, the amount of any Claims of Indemnity pending but not yet paid on such date, plus the lesser of (1) Guaranty Amount II less Claims of Indemnity paid to the Purchaser between the Second Anniversary and January 1, 2000, and (2) $ 6,500,000.00 ("Guaranty Amount III");
D) on January 1, 2001, the amount of any Claims of Indemnity pending but not yet paid on such date, plus the lesser of (1) Guaranty Amount III, less the amount of any Claims of Indemnity paid to the Purchaser prior to such date, and (2) $4,300,000.00 ("Guaranty Amount IV");
E) on January 1, 2002 until expiration of the Sellers' representations, warranties and covenants under this Agreement, the amount of any Claims of Indemnity pending but not yet paid on January 1, 2002, plus the lesser of (1) Guaranty Amount IV less the amount of any Claims of Indemnity paid to the Purchaser prior to such date, and (2) $2,150,000.00 ("Guaranty Amount V").
iii) It is agreed that, except as provided in Section 2.4.2 (b), any indemnification or other payment due to the Purchaser pursuant to this Agreement first will be deducted from the Deferred Payment. In the event the Deferred Payment is not available or is not sufficient to cover payments due to the Purchaser, such amounts shall be deducted from the Contingent Payment up to the outstanding amount owed to the Sellers, if any. In the event the Contingent Payment is not available or is not sufficient to payments due to the Purchaser, such amounts shall be paid out of the Additional Purchase Price Stock pursuant to the terms hereof and of the Escrow Agreement.
iv) It is also understood that to the extent that at any time and subject to Section 9.2 a) ii) of this Agreement, the amounts of the indemnification or other payments due to the Purchaser exceed the sum of the Deferred Payment, the Contingent Payment, if any, and the value of the Additional Purchase Price Stock then available, and/or the Purchaser is not able (due to whatever circumstance) to recover the amount due to it, the Sellers will be liable to the Buyer within Purchaser for the limit amount not so recovered. It is agreed that any indemnification and other amounts payable by the Sellers to the Purchaser pursuant to this Agreement, are secured by Mr. Gianxxxxx Xxxxxxxxx xx his capacity of "fideiussore" of the Alcedo Escrow Amount Sellers pursuant to Article 1944 c.c. and in accordance with a personal guarantee in the form of Enclosure 15 hereto, which Gianxxxxx Xxxxxxxxx xxxll deliver to the proceeds of Purchaser at the sale or the enforcement of the pledge on the Retained SharesClosing.
15.1.5 Any liability of Cap2 v) At such time or times the Sellers shall be obligated to make any payments pursuant to this Agreement, the Purchaser shall have the right to immediately demand and obtain payments due to it under this Agreement directly from Gianxxxxx Xxxxxxxxx xx "fideiussore" for the Sellers under the guarantee referred to in Section 9.2 (deriving a) (iv) provided, that the Purchaser shall have made written demand for payment upon the Sellers and the amount demanded shall not have been paid to the Purchaser within 15 days after such demand.
b) In the event of a reduction of any amount from the indemnification obligations according Deferred Payment by the Purchaser the Sellers shall cause the amount of Deferred Payment Guarantee to be reduced by such amount promptly upon notice from the Purchaser of such reduction or, if there is a dispute concerning such reduction, within 5 days after resolution of such dispute by mutual agreement or upon decision of the arbitrators pursuant to Article 12 or otherwise10 hereof. Any failure by the Sellers to cause a reduction in the Deferred Payment Guarantee in accordance with this Section 9.2 b) shall be borne also in proportion to the Retained Shares, subject however to the condition precedent constitute a material breach of the transfer of the same to the Buyer as provided in the Put and Call Option this Agreement.
15.1.6 Any liability c) The Sellers shall be deemed to act as one party for the purposes of CEO Article 10 in respect of any dispute which may arise between the Sellers and the Purchaser in connection with the Purchaser's rights under this Agreement (deriving from Article 9.
d) To the indemnification extent the Corporate Sellers are unable, for any reason, to fulfill any of their obligations according pursuant to Article 12 Sections 9.1 and 9.2, the Corporate Sellers hereby agree to use their respective best efforts to cause their shareholders to assume and pay such obligations.
e) In the event that the Companies are eligible to participate in any tax or otherwise) shall be borne also in proportion to social security amnesty programs offered by the CEO Contingent Share, subject however to the condition precedent of the transfer of the same to the Buyer as provided in the Put and Call Option AgreementItalian national tax
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