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This excerpt taken from the KEM 8-K filed Apr 20, 2006. Claim”). The determination of the economic condition
Purchasers would have been in if the Breach had not occurred shall be made for
each Breach strictly on the level of the entity (Purchasers/German Tantalum
Business or EPCOS Portugal) which is directly affected by the Breach and not on
the level of the direct or indirect shareholders of such entity. As damages,
Seller shall pay to Purchasers such amount which is necessary to restore on the
level of the entity directly affected by the Breach the economic condition
which would have existed for such entity had the Breach not occurred. In the
determination of such economic condition any multiple-based calculation of
damages shall not be taken into account.
15.2 Procedure. If after the Closing Date, Purchasers or EPCOS Portugal becomes aware of any circumstances which reasonably indicate the possibility of a Breach, Purchasers shall as soon as possible, but in any event within twenty (20) Business Days, give Seller written
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notice thereof, with such notice stating the nature of the possible Breach and the likely amount involved, to the extent that such amount can be determined at the time of the notice. Without prejudice to the validity of the alleged Breach, Purchaser shall allow, and shall cause Purchaser’s Affiliates and EPCOS Portugal to allow, Seller and its accountants and legal advisors to investigate the matter or circumstance alleged to give rise to such Breach, and whether and to which extent any amount is payable in respect of such Breach. For such purpose, Purchaser shall give and shall cause Purchaser’s Affiliates and EPCOS Portugal to give subject to reasonable prior notice and during normal business hours, such information and assistance, including access to Purchaser’s, Purchaser’s Affiliates’ and EPCOS Portugal’s premises and personnel and including the right to examine and copy or photograph any assets, accounts, documents and records, as Seller or its accountants or legal advisors may reasonably request.
15.3 Exclusions of Liability. Seller shall not be liable for, and Purchaser shall not be entitled to bring any claim relating to, a Breach if and to the extent that
(i) either Purchaser, Purchaser’s Affiliates or, after the Closing, EPCOS Portugal have caused (verursacht oder mitverursacht) or aggravated such Breach or any damage resulting therefrom or failed to mitigate damages pursuant to Section 254 German Civil Code;
(ii) the amount of the damages caused by such Breach is actually recovered or could with reasonable efforts have been recovered from a third party, including under an insurance policy with respect to such claims;
(iii) the circumstances giving rise to the Breach are reflected or reserved against in the EPCOS AG Financial Statements or the EPCOS Portugal Financial Statements or are included in the EPCOS Portugal Closing Date Net Debt or the Closing Date Net Working Capital;
(iv) the payment or settlement of any item giving rise to claims relating to such Breach results in a tax benefit or cash benefit to the Purchaser, Purchaser’s Affiliates or EPCOS Portugal, whereby all advantages in connection with the relevant matter shall be taken into account and where such benefit shall be calculated as if it had been received by the Business on a stand-alone basis;
(v) material facts constituting the Breach have been disclosed in this Agreement (including any of the Exhibits) in a manner reasonably indicating such Breach (although not specifically referring to the provision in question);
(vi) the Breach results from, or its consequences are increased by, the passing of, or any change in, after the date of this Agreement, any law, statute, ordinance, rule, regulation, common law rule or administrative practice of any government, governmental department, agency or regulatory body; or
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(vii) the procedures set forth in Section 15.2 or 15.4 were not complied with by Purchasers or EPCOS Portugal, unless such non-compliance has not limited or prejudiced Seller’s options to avoid or mitigate the damages in any material respect.
15.4 Third-Party Claims
15.4.1 A Party making a claim for indemnification or damages under this Agreement, including, without limitation, this Section 15 shall be, for the purposes of this Agreement, referred to as the “ |
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