Common use of The Sellers Clause in Contracts

The Sellers. Subject to the limitations contained in this Agreement, the Sellers hereby, jointly and severally (Haftung zur ungeteilten Hand), except as expressly specified herein otherwise, represent and warrant (▇▇▇▇▇▇▇ Gewähr pursuant to sec 922 et seqq ABGB) to the Purchaser that the statements contained in this Article 2 and Article 3 (“Sellers’ Warranties”) are true and correct on the date hereof, except as expressly set forth on the Disclosure Schedule attached hereto as Exhibit 2 (the “Disclosure Schedule”). The Disclosure Schedule shall be arranged in numbered sections corresponding to the sections contained in this Article 2 and Article 3. Any information disclosed therein under a section of the Disclosure Schedule shall be deemed disclosed and any factual or legal defects (Sach- oder Rechtsmängel) reasonably apparent from the information disclosed in the Disclosure Schedule shall be deemed excluded from the scope of the corresponding representations and warranties below. Beyond the representations and warranties expressly stated in this Agreement, the Sellers do not and will not issue or accept any other express or implied representations (Zusicherungen), warranties (Gewährleistungszusagen) or guarantees (Garantien) of whatever nature, whether explicitly or implied, for whatever reason and on whatever legal basis. Notwithstanding the generality of the foregoing, the Sellers, in particular, do not issue or accept any representation, warranty or guarantee (i) in respect of budgets, forecasts and planning and management accounts relating to the future disclosed to the Purchaser or (ii) for a certain profitability of the Shares or of the business of any Group Company. The Sellers acknowledge that the Purchaser purchases and acquires the Shares in reliance on the Sellers’ Warranties, which shall qualify as properties expressly warranted to the Purchaser (ausdrücklich zugesicherte Eigenschaften). For the avoidance of doubt, such acknowledgment shall not grant the Purchaser any right to challenge, change, demand adjustments to this Agreement or to rescind this Agreement on the basis of any ground set forth in Section 7.5. The Sellers’ Warranties are given as per the date expressly stated herein. In the event no date is expressly stated, the respective Sellers’ Warranties are given as of the date of this Agreement and again as of the Closing Date. CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.

The Sellers. Subject The Sellers recognize and acknowledge that they had in the past, currently have, and in the future may have, access to certain confidential information relating to the limitations contained Business and/or the Purchaser, Parent or Old ACG, such as operational policies, and pricing and cost policies that are valuable, special and unique assets related to the Business and/or the Purchaser, Parent or Old ACG. The Sellers agree that they will not disclose such confidential information to any Person for any purpose or reason whatsoever, except (i) to authorized representatives of the Purchaser, Parent or Old ACG; (ii) following the Closing, such information may be disclosed by the Sellers as is required in the course of performing their duties for the Purchaser, Parent or Old ACG; and (iii) to counsel and other advisers; provided that such advisers (other than counsel) agree to the confidentiality provisions of this AgreementSection 10.1, unless (w) such information becomes known to the public generally through no fault of the Sellers, (x) disclosure is required by law or the order of any governmental authority under color of law; provided, that prior to disclosing any information pursuant to this clause (y), the Sellers hereby, jointly and severally (Haftung zur ungeteilten Hand), except as expressly specified herein otherwise, represent and warrant (▇▇▇▇▇▇▇ Gewähr pursuant to sec 922 et seqq ABGB) shall give prior written notice thereof to the Purchaser that Parent and provide the statements contained in this Article 2 and Article 3 (“Sellers’ Warranties”) are true and correct on Parent with the date hereofopportunity to contest such disclosure, except as expressly set forth on the Disclosure Schedule attached hereto as Exhibit 2 (the “Disclosure Schedule”). The Disclosure Schedule shall be arranged in numbered sections corresponding to the sections contained in this Article 2 and Article 3. Any information disclosed therein under a section of the Disclosure Schedule shall be deemed disclosed and any factual or legal defects (Sach- oder Rechtsmängel) reasonably apparent from the information disclosed in the Disclosure Schedule shall be deemed excluded from the scope of the corresponding representations and warranties below. Beyond the representations and warranties expressly stated in this Agreement, the Sellers do not and will not issue or accept any other express or implied representations (Zusicherungen), warranties (Gewährleistungszusagen) or guarantees (Garantien) of whatever nature, whether explicitly or implied, for whatever reason and on whatever legal basis. Notwithstanding the generality of the foregoing, the Sellers, in particular, do not issue or accept any representation, warranty or guarantee (i) in respect of budgets, forecasts and planning and management accounts relating to the future disclosed to the Purchaser or (iiz) for the disclosing party reasonably believes that such disclosure is required in connection with the defense of a certain profitability of lawsuit against the Shares or of the business of any Group Company. The Sellers acknowledge that the Purchaser purchases and acquires the Shares in reliance on the Sellers’ Warranties, which shall qualify as properties expressly warranted to the Purchaser (ausdrücklich zugesicherte Eigenschaften). For the avoidance of doubt, such acknowledgment shall not grant the Purchaser any right to challenge, change, demand adjustments to this Agreement or to rescind this Agreement on the basis of any ground set forth in Section 7.5. The Sellers’ Warranties are given as per the date expressly stated hereindisclosing party. In the event no date is expressly statedof a breach or threatened breach by the Sellers of the provisions of this Section 10.1, the respective Sellers’ Warranties are given Purchaser or Parent shall be entitled to an injunction restraining the Sellers from disclosing, in whole or in part, such confidential information. Nothing herein shall be construed as prohibiting (1) the Sellers from using information acquired in connection with activities permitted under Section 11 or (2) the Purchaser or Parent from pursuing any other available remedy for such breach or threatened breach, including the recovery of damages. In the date of event the transactions contemplated by this Agreement and again as of are not consummated, the Closing Date. CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENTabove mentioned restrictions on the Sellers' ability to disseminate confidential information with respect to the Business and/or Purchaser, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDEDParent or Old ACG shall become void.

The Sellers. Subject 2.1 Each Seller, if that Seller is an entity, is duly organized, formed or incorporated (as applicable), validly existing and in good standing (if applicable) under the Laws of its jurisdiction of organization, formation or incorporation and has all power and authority to carry on its business as now being conducted. 2.2 Each Seller has, as applicable, the limitations contained legal capacity or in respect of a limited liability company or corporate, as applicable, power and authority to execute and deliver this Agreement and each of the Transaction Documents to which that Seller is a party, and to perform that Seller’s obligations hereunder and thereunder. The execution, delivery and performance by that Seller of this Agreement and each of the Transaction Documents to which that Seller is a party, and the consummation by that Seller of the transactions contemplated hereby and thereby, have been duly and validly authorized by all required action on the part of that Seller, and no other action on the part of that Seller is necessary to authorize the execution and delivery of this Agreement and each of the Transaction Documents to which that Seller is a party by that ▇▇▇▇▇▇, the performance by that Seller of its obligations hereunder or thereunder or the consummation by that Seller of the transactions contemplated hereby or thereby. 2.3 This Agreement and each of the Transaction Documents to which that Seller is a party, when executed and delivered by the other parties hereto and thereto (assuming the due authority, execution and delivery each such other party, as applicable), constitutes (or will constitute) a valid and legally binding obligation of that Seller, as applicable, enforceable against that Seller, as applicable, in accordance with their respective terms, except as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization or moratorium Laws, other similar Laws affecting creditors’ rights and general principles of equity affecting the availability of specific performance and other equitable remedies (regardless of whether enforcement is sought in a proceeding at Law or in equity). 2.4 Except as set forth in the Disclosure Letter (the “Seller Regulatory Approvals”), no Governmental Authorization or filing is required to be obtained by that Seller from, or to be given by that Seller to, or made by that Seller with, any Authority or securities exchange, as a result of the execution, delivery or performance by that Seller of this Agreement or the Transaction Documents to which that Seller is a party, except any such Governmental Authorization or filing, the failure of which to be obtained by that Seller, or to be given by that Seller to, or made by that Seller with, any Authority or securities exchange would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Change. 2.5 The execution, delivery and performance by that Seller of this Agreement, and the execution, delivery and performance by that Seller of the Transaction Documents to which that Seller is a party, and the consummation of the transactions contemplated hereby and thereby, do not and will not: (a) contravene, conflict with, violate or result in a breach of any provision of the Organizational Documents of that Seller, as applicable, or any Group Company; (b) contravene, conflict with, or result in the breach of, or constitute a default under, or result in the termination, cancellation or acceleration or require any notice or consent under (whether after the filing of notice or the lapse of time or both), any material contract to which that Seller is a party; (c) result in the creation of any Encumbrance upon that Seller’s Shares, the EIL Shares or any assets of the Group Companies; or (d) assuming the receipt of all Seller Regulatory Approvals, contravene, conflict with, violate or result in a breach of any Law to which that Seller is subject; except, in the cause of the foregoing paragraphs 2.5(b) and 2.5(d), as would not reasonably be expected to have a Material Adverse Change. 2.6 Each Seller is the sole record and beneficial owner of the number of Shares listed next to that Seller’s name in Part 1 of Schedule 1. EIL is the sole record and beneficial owner of the number of ▇▇▇ ▇▇▇▇▇▇ listed next to EIL’s name in Part 2 of Schedule 1. Other than as set forth in Schedule 1, that Seller owns no equity interest (or other right to acquire any equity interests) in the Company, and EIL owns no equity interest (or other right to acquire any equity interests) in BETA Greece. Each Seller has, and shall transfer to the Buyer at Completion, good and valid title to the Shares and the EIL Shares, as applicable, free and clear of all Encumbrances other than restrictions under applicable securities Laws. Other than this Agreement and as set forth in the Disclosure Letter, there are no voting trusts, voting agreements, proxies, first refusal rights, first offer rights, co-sale rights, options, transfer restrictions or other agreements, instruments or understandings of any nature with respect to the voting, transfer or disposition of the share capital of the Group Companies. 2.7 Each Seller does not own or purport to own any Technology or Intellectual Property Rights, or any other property or asset, that is used in or necessary for the conduct of the business of the Group Companies as currently conducted, nor does that Seller own or purported to be owned (whether solely or jointly), or have any rights to or under, any Group Company Intellectual Property or any other property or asset owned by any Group Company. 2.8 There is no Litigation pending, threatened in writing or, so far as that Seller is aware, threatened orally against that Seller that would, individually or in the aggregate, reasonably be expected to materially and adversely affect that Seller’s ability to execute, deliver or perform this Agreement or any Transaction Document, or to timely consummate the transactions contemplated hereby or thereby. So far as the Sellers herebyare aware, jointly no event has occurred and severally (Haftung zur ungeteilten Hand)no claim or dispute exists, except as expressly specified herein otherwisethat will, represent or that would reasonably be expected to give rise to the commencement of any Litigation that is of a type described in the immediately preceding sentence. Except with respect to the Regulatory Conditions, such Seller is not subject to any Order that would, individually or in the aggregate, reasonably be expected to materially and warrant (adversely affect that Seller’s ability to execute, deliver or perform this Agreement or any Transaction Document, or to timely consummate the transactions contemplated hereby or thereby. 2.9 Except for fees payable to ▇▇▇▇▇▇▇▇ Gewähr ▇▇▇▇▇, which fees including all related Taxes will be paid by the applicable Seller(s), there is no investment banker, broker, finder or other intermediary that has been retained by or is authorized to act on behalf of any Seller(s) who might be entitled to any fee or commission from the Buyer or any of their respective Affiliates in connection with the transactions contemplated hereby. 2.10 There is no investment banker, broker, finder or other intermediary appointed by any of the Sellers or Related Sellers in connection with the transactions contemplated hereby who classifies as a Swiss securities dealer for purposes of Swiss securities transfer stamp duty (Umsatzabgabe) pursuant to sec 922 et seqq ABGB) the Swiss Stamp Duty Act. Except for the Consideration paid to ELUCO, the Purchaser that the statements contained in this Article 2 execution, delivery and Article 3 (“Sellers’ Warranties”) are true and correct on the date hereof, except as expressly set forth on the Disclosure Schedule attached hereto as Exhibit 2 (the “Disclosure Schedule”). The Disclosure Schedule shall be arranged in numbered sections corresponding to the sections contained in this Article 2 and Article 3. Any information disclosed therein under a section performance by any Seller of the Disclosure Schedule shall be deemed disclosed and any factual or legal defects (Sach- oder Rechtsmängel) reasonably apparent from the information disclosed in the Disclosure Schedule shall be deemed excluded from the scope of the corresponding representations and warranties below. Beyond the representations and warranties expressly stated in this Agreement, and the execution, delivery and performance by any Seller of the other Transaction Documents to which that Seller is a party, and the consummation by the Sellers of the transactions contemplated hereby and thereby, do not and will not issue give rise to Swiss securities transfer stamp duty (Umsatzabgabe) pursuant to the Swiss Stamp Duty Act due to any action by any of the Sellers or accept any Related Sellers. 2.11 ELUCO warrants to the Buyer that it is not acting as an intermediary for other express or implied representations Sellers for purposes of Swiss securities transfer stamp duty (Zusicherungen), warranties (GewährleistungszusagenUmsatzabgabe) or guarantees (Garantien) of whatever nature, whether explicitly or impliedpursuant to the Swiss Stamp Duty Act, for whatever reason the transaction contemplated hereby and on whatever legal basis. Notwithstanding the generality of the foregoing, the Sellers, in particular, do not issue or accept any representation, warranty or guarantee (i) in respect of budgets, forecasts and planning and management accounts relating to the future disclosed to the Purchaser or (ii) for a certain profitability of the Shares or of the business of any Group Company. The Sellers acknowledge that the Purchaser purchases and acquires the Shares in reliance on the Sellers’ Warranties, which shall qualify as properties expressly warranted to the Purchaser (ausdrücklich zugesicherte Eigenschaften). For the avoidance of doubt, such acknowledgment shall not grant the Purchaser any right to challenge, change, demand adjustments to this Agreement or to rescind this Agreement on the basis of any ground set forth in Section 7.5. The Sellers’ Warranties are given as per the date expressly stated herein. In the event no date is expressly stated, the respective Sellers’ Warranties are given as thereby. 2.12 As of the date of this Agreement Agreement, there are no bankruptcy, winding-up, liquidation, receivership, or similar proceedings pending or threatened in writing against that Seller. 2.13 There are no guarantees, bonds, credit support arrangements, indemnities or letters of comfort of any nature given to a third party by any Seller or an Affiliate of any Seller in respect of any obligation of any Group Company, and again there are no guarantees, bonds, credit support arrangements, indemnities or letters of comfort of any nature given to a third party by any Group Company in respect of any obligation of any Seller or an Affiliate of any Seller other than to the extent given in respect of such Seller’s (or its Affiliates’) role as an employee, officer, or director of a Group Company. 2.14 Each Seller is (a) an “accredited investor” as defined in Regulation D promulgated by the SEC under the Securities Act or (b) not a U.S. Person as defined in Rule 902(k) of Regulation S promulgated by the SEC under the Securities Act and (i) is aware of the Closing Date. CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENTincome tax and other tax consequences, MARKED BY BRACKETSif any, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933that may be relevant to the purchase, AS AMENDEDacquisition, holding, redemption, sale or transfer of the Stock Consideration, (ii) is acquiring its portion of the Stock Consideration for its own account and not for the account or benefit of a U.S. person, and understands that any resale of the Stock Consideration by such Seller shall be in accordance with Rule 902(k) of Regulation S (if applicable), pursuant to registration under the Securities Act or pursuant to an available exemption from registration and that that the Buyer has no obligation to register or qualify the Stock Consideration for resale except as set forth in this Agreement, (iii) resides or has its principal office location at the address of such Seller set forth under its signature to this Agreement, which is located outside of the United States and (iv) acknowledges that the Stock Consideration shall, if certificated, bear an appropriate legend (or if held in book-entry form, will be noted) with respect to such restrictions. 2.15 Each Seller is a sophisticated investor that is able to evaluate companies, is able to fend for himself, herself or itself in transactions such as the ones contemplated by this Agreement, has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of his, her or its prospective investment in Buyer Stock, and has the ability to bear the economic risks of the investment, including, without limitation, to the loss of his, her or its investment. 2.16 [***] 2.17 [***]

The Sellers. Subject The obligations of the Sellers to consummate the transactions contemplated by this Agreement are subject, at the option of the Sellers, to the limitations contained in this Agreement, satisfaction or waiver of the following conditions: (i) The Purchaser shall have furnished the Sellers with certified copies of resolutions duty adopted by the Board of Directors of the Purchaser authorizing the execution, delivery and performance of this Agreement and the Consulting Agreements; (ii) The representations and warranties of the Purchaser contained herein will be accurate in all material respects at and as of the Closing Date as though such representations and warranties had been made at and as of such date; all terms, covenants and conditions of this Agreement to be complied with and performed by the Purchaser at or prior to the Closing will have been duly complied with and performed; and the Purchaser will have delivered to the Sellers a certificate dated as of the Closing Date and signed on behalf of the Purchaser by the President or any Vice President thereof to the foregoing effect; (iii) All statutory requirements for the valid consummation of the transactions contemplated herein shall have been fulfilled and all governmental consents, approvals or authorizations necessary for the valid consummation of the transactions contemplated herein shall have been obtained; (iv) As of the Closing, no order, writ, injunction or decree shall have been entered into and be in effect that restrains, enjoins or invalidates any of the transactions contemplated hereby, jointly and severally no action, suit or other proceeding shall be pending (Haftung zur ungeteilten Hand), except as expressly specified herein otherwise, represent and warrant irrespective of whether instituted by the U.S. government or any agency thereof or by any private party) or threatened by the U.S. government or any agency thereof that has a reasonable likelihood of resulting in (A) an award of substantial damages by reason of any of the transactions contemplated hereby payable by the Company or (B) the divestiture of any material assets by the Company by reason of any of the transactions contemplated hereby; and (v) The Sellers will have received an opinion from ▇▇▇▇▇▇▇ Gewähr pursuant & ▇▇▇▇▇ L.L.P., counsel for the Purchaser, dated the Closing Date, in form and substance satisfactory to sec 922 et seqq ABGBcounsel for the Sellers, that: (A) the Purchaser is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Louisiana with corporate power to carry on its business as now being conducted; (B) the Purchaser has full corporate power, authority and legal right to enter into this Agreement and the Consulting Agreements and to consummate the transactions contemplated hereby and thereby; and this Agreement and the Consulting Agreements have been duly authorized and approved by proper corporate action of the Purchaser, have been duly executed by the Purchaser and, assuming due authorization, execution and delivery by the other parties thereto, constitute legal, valid and binding agreements of the Purchaser, enforceable in accordance with their terms, except that (i) such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally and (ii) the remedy of specific performance and injunction and other forms of equitable relief may be subject to equitable defenses and to the Purchaser that the statements contained in this Article 2 and Article 3 (“Sellers’ Warranties”) are true and correct on the date hereof, except as expressly set forth on the Disclosure Schedule attached hereto as Exhibit 2 (the “Disclosure Schedule”). The Disclosure Schedule shall be arranged in numbered sections corresponding to the sections contained in this Article 2 and Article 3. Any information disclosed therein under a section discretion of the Disclosure Schedule shall court before which any proceeding therefor may be deemed disclosed brought; and (C) To the best of such counsel's knowledge, the consummation of the transactions contemplated by this Agreement and any factual or legal defects (Sach- oder Rechtsmängel) reasonably apparent from the information disclosed Consulting Agreements will not result in the Disclosure Schedule shall be deemed excluded from breach of any term or provisions of or constitute a default under any indenture, mortgage, deed of trust or other loan agreement or debt instrument to which the scope Purchaser is a party or by which the Purchaser or the properties of the corresponding representations and warranties below. Beyond the representations and warranties expressly stated in this Agreement, the Sellers do not Purchaser may be bound and will not issue or accept conflict with any other express or implied representations (Zusicherungen), warranties (Gewährleistungszusagen) or guarantees (Garantien) of whatever nature, whether explicitly or implied, for whatever reason and on whatever legal basis. Notwithstanding the generality provision of the foregoing, the Sellers, in particular, do not issue Articles of Incorporation or accept any representation, warranty or guarantee (i) in respect of budgets, forecasts and planning and management accounts relating to the future disclosed to the Purchaser or (ii) for a certain profitability By-Laws of the Shares or of the business of any Group Company. The Sellers acknowledge that the Purchaser purchases and acquires the Shares in reliance on the Sellers’ Warranties, which shall qualify as properties expressly warranted to the Purchaser (ausdrücklich zugesicherte Eigenschaften). For the avoidance of doubt, such acknowledgment shall not grant the Purchaser any right to challenge, change, demand adjustments to this Agreement or to rescind this Agreement on the basis of any ground set forth in Section 7.5. The Sellers’ Warranties are given as per the date expressly stated herein. In the event no date is expressly stated, the respective Sellers’ Warranties are given as of the date of this Agreement and again as of the Closing Date. CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDEDPurchaser.