RESTRUCTURING AGREEMENT BETWEEN BALLARD POWER SYSTEMS INC. - and– DAIMLER AG – and– FORD MOTOR COMPANY November 7, 2007
Exhibit
1
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BETWEEN
XXXXXXX
POWER SYSTEMS INC.
-
and–
DAIMLER
AG
–
and–
FORD
MOTOR COMPANY
November
7, 2007
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TABLE
OF CONTENTS
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PART
1 INTERPRETATION
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2
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DEFINITIONS
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2
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INTERPRETATION
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16
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EXHIBITS
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19
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PART
2 CAPITALIZATION OF NEWCO
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20
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INCORPORATION
AND ORGANIZATION OF NEWCO
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20
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TRANSFERS
BY XXXXXXX TO NEWCO
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20
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CALCULATION
OF NEWCO PURCHASE PRICE
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20
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PAYMENT
OF NEWCO PURCHASE PRICE
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20
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PAYMENT
OF TRANSFER TAXES
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21
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TAX
ELECTIONS
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21
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PART
3 SALE TO DAIMLER
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22
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TRANSFER
BY BALLARD TO DAIMLER
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22
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CALCULATION
OF DAIMLER PURCHASE PRICE
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22
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PAYMENT
OF DAIMLER PURCHASE PRICE
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23
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ALLOCATION
OF DAIMLER PURCHASE PRICE
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23
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THIRD
PARTIES
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23
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PART
4 SALE TO FORD
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24
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TRANSFER
BY BALLARD TO FORD
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24
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CALCULATION
OF FORD PURCHASE PRICE
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24
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PAYMENT
OF FORD PURCHASE PRICE
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25
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ALLOCATION
OF FORD PURCHASE PRICE
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25
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THIRD
PARTIES
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25
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PART
5 REPRESENTATIONS, WARRANTIES AND COVENANTS
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26
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REPRESENTATIONS
AND WARRANTIES OF BALLARD
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26
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REPRESENTATIONS
AND WARRANTIES OF DAIMLER
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31
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REPRESENTATIONS
AND WARRANTIES OF FORD
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34
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COVENANTS
OF BALLARD
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37
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COVENANTS
OF DAIMLER AND FORD
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43
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IDENTIFICATION
OF UNCLASSIFIED BALLARD IPRS
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46
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PROCEDURE
FOR UNCLASSIFIED BALLARD IPRS
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47
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TRANSFER
OF OVERLOOKED ASSETS, ACCESS TO OTHER ASSETS
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47
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POST
CLOSING PROVISION OF PRODUCTS
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48
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SURVIVAL
OF COVENANTS, REPRESENTATIONS AND WARRANTIES
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51
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PART
6 CONDITIONS
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51
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CONDITIONS
FOR THE BENEFIT OF BALLARD
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51
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WAIVER
OF CONDITIONS BY BALLARD
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52
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CONDITIONS
FOR THE BENEFIT OF DAIMLER
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52
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WAIVER
OF CONDITIONS BY DAIMLER
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53
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CONDITIONS
FOR THE BENEFIT OF FORD
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53
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WAIVER
OF CONDITIONS BY FORD
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54
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CONDITIONS
FOR THE BENEFIT OF ALL OF THE PARTIES
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54
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PART
7 INDEMNITIES
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55
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NOTICE
OF BREACH
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55
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INDEMNITY
TO BALLARD BY DAIMLER
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55
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INDEMNITY
TO BALLARD BY FORD
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55
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INDEMNITY
TO DAIMLER BY BALLARD
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55
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INDEMNITY
TO FORD BY BALLARD
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56
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INDEMNITY
CLAIM THRESHOLD
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56
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LIMITATIONS
OF INDEMNITY CLAIMS
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56
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TIME
LIMITATION ON INDEMNITY CLAIMS
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57
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PART
8 CLOSING
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57
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CLOSING
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57
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DELIVERIES
BY DAIMLER
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58
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DELIVERIES
BY FORD
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60
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DELIVERIES
BY BALLARD
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62
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ADDITIONAL
DELIVERIES
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65
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PART
9 GOVERNING LAW; DISPUTE RESOLUTION
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66
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INITIATION
OF PROCESS
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66
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REFERRAL
TO SENIOR OFFICERS
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66
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DECISION
BINDING
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66
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SUBMISSION
TO ARBITRATION
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66
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ACCEPTANCE
AND IMPLEMENTATION
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66
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CONDUCT
OF ARBITRATION
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67
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ARBITRATION
AWARD
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67
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GOVERNING
LAW
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67
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PART
10 TERMINATION
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67
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TERMINATION
TIME
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67
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TERMINATION
AT ANY TIME
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68
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PART
11 GENERAL
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68
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MODIFICATIONS,
APPROVALS AND CONSENTS
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68
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FURTHER
ASSURANCES
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68
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ENTIRE
AGREEMENT
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68
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EXPENSES
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69
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CONFIDENTIALITY
OBLIGATIONS OF BALLARD, DAIMLER AND FORD
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69
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NOTICES
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70
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DEEMED
RECEIPT
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71
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CHANGE
OF ADDRESS
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72
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ENUREMENT
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72
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TIME
OF THE ESSENCE
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72
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COUNTERPARTS
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72
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NO
PARTNERSHIP OR UNINCORPORATED JOINT VENTURE
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72
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PRESS
RELEASES
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72
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PROCEEDINGS
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73
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-
ii -
THIS
AGREEMENT made the 7th day of
November,
2007
BETWEEN:
XXXXXXX
POWER SYSTEMS INC., a corporation existing under the laws of Canada,
having an office at 0000 Xxxxxxxx Xxxxxxx, Xxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxx,
X0X 0X0
("Ballard")
AND:
DAIMLER
AG, a corporation existing under the laws of Germany, having an office
at Xxxxxxxxxxxxxxx 000, 00000 Xxxxxxxxx, Xxxxxxx
("Daimler")
AND:
FORD
MOTOR COMPANY, a corporation existing under the laws of Delaware,
having an office at Xxx Xxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx, 00000, Xxxxxx Xxxxxx
of America
("Ford")
WHEREAS:
(A) Ballard
wishes to reduce its current investment in the automotive sector and focus
its
efforts on the development of Fuel Cells for Non-Automotive Applications in
order to achieve near-term revenues;
(B) Daimler
and Ford wish to continue to focus on the development of Fuel Cells for
Automotive Applications in order to support their principal business
focus;
(C) Ballard,
Daimler and Ford (each a "Party" and collectively the
"Parties") have agreed on a restructuring plan which will
enable each of them to meet their objectives, generally involving:
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(1)
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the
transfer by Xxxxxxx to Newco of certain of the assets, liabilities
and
personnel relating to the Xxxxxxx Automotive
Business;
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(2)
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the
licensing between Ballard, Daimler and Ford of the IPR related to
Fuel
Cells held by each of them to the other in order to enable them to
carry
on their respective businesses;
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(3)
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the
disposition by Ballard to Daimler and Ford of (i) a controlling interest
in Newco; (ii) its interest in the Automotive IPR; and (iii) licenses
to
the Fundamental IPR and Non-Automotive IPR for use in Automotive
Propulsion Applications in exchange for the entire interest of Daimler
and
Ford in Ballard; and
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(4)
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the
other transactions contemplated hereunder, including the implementation
of
the Holding Structure;
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all
as
more particularly described, and on the terms and conditions set out, in this
Agreement.
NOW
THEREFORE this Agreement witnesses that the Parties mutually covenant
and agree as follows:
PART
1
INTERPRETATION
Definitions
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1.1
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In
this Agreement and the recitals hereto, except as otherwise expressly
provided or unless the context otherwise requires, the following
words and
phases have the following meanings:
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(a)
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Administrative
Services Agreement means the agreement between Xxxxxxx and Newco
under which Xxxxxxx will provide such administrative support services
(IT,
finance, HR, etc.) as are requested by Newco, the form of which is
to be
settled between Daimler, Ford and Ballard during the Interim Period
on the
basis of the terms set out in Exhibit
K;
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(b)
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Asset
Transfer Agreement means the transfer agreement between Xxxxxxx
and Newco providing for the transfer by Xxxxxxx of the Xxxxxxx Automotive
Assets to Newco and the assumption by Newco of the Xxxxxxx Automotive
Liabilities, in the form comprising Exhibit
D;
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(c)
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Automobile
means a car, Bus, van or truck;
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2 -
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(d)
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Automotive
Contracts means the contracts related to the Xxxxxxx Automotive
Business and listed in Exhibit N, but exclude the contracts listed
in
Exhibit O;
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(e)
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Automotive
IPR means the IPR listed in Exhibit V, to be transferred by
Ballard to Daimler and Ford pursuant to the Ballard IPR Transfer
Agreement;
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(f)
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Automotive
Propulsion Application means a propulsion system in an Automobile
which incorporates a Fuel Cell as the sole or partial source of propulsion
power, including a hybrid propulsion system combining both a Fuel
Cell and
either or both of another source of propulsion power and an electrical
storage unit;
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(g)
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Auxiliary
Power Unit Application means any system in an Automobile which
incorporates a Fuel Cell but which does not provide propulsion power
or
power to charge the electrical storage unit of an Automotive Propulsion
Application, provided that a system in an Automobile which incorporates
a
Fuel Cell is not an Automotive Propulsion Application solely as a
result
of that system receiving power from an electrical storage unit of
an
Automotive Propulsion Application;
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(h)
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Xxxxxxx
Articles of Amendment means the articles of amendment of Xxxxxxx
comprising Exhibit C;
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(i)
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Xxxxxxx
Automotive Assets means the Tangible Automotive Assets and the
Automotive Contracts;
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(j)
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Xxxxxxx
Automotive Business means Xxxxxxx’x business of researching,
developing, designing, manufacturing, making, having made, assembling,
installing, distributing, marketing, selling and servicing Fuel Cells
for
Automotive Propulsion Applications;
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(k)
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Ballard
Automotive Liabilities means the liabilities related to the
Ballard Automotive Business and listed in Exhibit Q, but excluding
the
liabilities listed in Exhibit R;
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(l)
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Xxxxxxx
Circular means the management proxy circular of Xxxxxxx to be
prepared and sent to Xxxxxxx Shareholders in connection with the
Xxxxxxx
Meeting;
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(m)
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Xxxxxxx
Closing Opinion means the opinion of in-house counsel to Ballard
to be rendered to, and be to the reasonable satisfaction of, Daimler
and
Ford and dated and delivered on the Closing Date opining as to the
due
incorporation and existence of Ballard, the due authorization, execution
and delivery of this Agreement and the Transaction Documents to which
it
is a party and that completion by Xxxxxxx of the transactions contemplated
hereby or thereby does not constitute or result in the breach of,
conflict
with or violate Xxxxxxx'x constating documents or any law, judgment,
decree, order, injunction, rule, statute or regulation of any court,
arbitrator or Governmental Authority by which it is bound or is
subject;
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3 -
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(n)
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Xxxxxxx
Common Shares means common shares in the capital of
Ballard;
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(o)
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Ballard
IPR Transfer Agreement means the transfer agreement among
Ballard, Daimler and Ford, providing for the transfer by Ballard
of the
Automotive IPR to Daimler and Ford, in the form comprising Exhibit
E;
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(p)
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Xxxxxxx
License has the meaning ascribed thereto in the Master License
Agreement;
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(q)
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Xxxxxxx
Meeting means the special meeting of Xxxxxxx Shareholders
(including any adjournment thereof) to be held to consider and, if
deemed
advisable, to pass the Ordinary Resolution and the Special
Resolution;
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(r)
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Ballard
Shareholder means a holder of Xxxxxxx Common
Shares;
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(s)
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BCBCA
means the British Columbia Business Corporations
Act;
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(t)
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Bus
means a Large Bus or a Shuttle Bus;
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(u)
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CBCA
means the Canada Business Corporations
Act;
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(v)
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Closing
means the completion of the transactions contemplated by this
Agreement;
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(w)
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Closing
Date means January 31, 2008, or such other date as may be agreed
by Ballard, Daimler and Ford;
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(x)
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Closing
Time means 9:00 a.m. (Vancouver time) on the Closing Date or
such
other time as may be agreed by Ballard, Daimler and
Ford;
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(y)
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Confidential
Information means, in relation to a Person, information developed
or used by such Person in connection with its business, whether disclosed
prior to or after the date of this Agreement, including, but not
limited
to, such Person’s Intellectual Property Rights, Know-How, customer
information, financial information, marketing information, research
and
development information and information pertaining to business
opportunities;
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4 -
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(z)
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Consent
means the consent, approval, order, authorization, qualification
or waiver
of registration (other than registration with respect to title or
interest
in real property) or filing with, application or notice to, or other
action whatsoever by, any Person other than a Governmental Authority
which
is required in connection with the completion of any of the transactions
contemplated by this Agreement, but does not include any consent
of a
Transferred Employee to the transfer of his or her employment to
Newco or
the assignment of his or her employment agreement to
Newco;
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(aa)
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Control
of a corporation, limited liability company, other body corporate
or other
entity by a Person only occurs, for the purposes of this Agreement,
if:
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(i)
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securities
of the corporation, limited liability company, other body corporate
or
other entity to which are attached more than 50% of the votes that
may be
cast to elect directors of the corporation, limited liability company,
other body corporate or other entity (or other members of the governing
body of the corporation, limited liability company, other body corporate
or other entity, if it has no board of directors) or other rights
to elect
a majority of directors or such other members are held, other than
by way
of security or pledge only, by or for the benefit of that Person;
and
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(ii)
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the
votes attached to those securities are sufficient, or such rights
are
sufficient, if exercised, to elect a majority of the directors (or
other
members of the governing body of the corporation, limited liability
company, other body corporate or other entity, if it has no board
of
directors) of the corporation, limited liability company, other body
corporate or other entity;
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(ab)
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Daimler
Xxxxxxx Common Shares means the 21,392,598 Xxxxxxx Common Shares,
owned by Daimler and/or a Daimler Subsidiary that are to be transferred
to
Ballard pursuant to §3.3(a);
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(ac)
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Daimler
Closing Opinion means the opinion of in-house counsel to Daimler
to be rendered to, and be to the reasonable satisfaction of, Ballard
and
Ford and dated and delivered on the Closing Date opining as to the
due
incorporation and existence of Daimler, the due authorization, execution
and delivery by Daimler of this Agreement and the Transaction Documents
to
which it is a party and that completion by Daimler of the transactions
contemplated hereby or thereby does not constitute or result in the
breach
of, conflict with or violate Daimler's constating documents or any
law,
judgment, decree, order, injunction, rule, statute or regulation
of any
court, arbitrator or Governmental Authority by which it is
bound;
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5 -
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(ad)
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Daimler
DBF Shares means the 50 Class A DBF Shares owned by Daimler
and/or a Daimler Subsidiary that are to be transferred to Ballard
pursuant
to §3.3(a);
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(ae)
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Daimler
Improvements License has the meaning ascribed thereto in the
Improvements License Agreement;
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(af)
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Daimler
Newco Shares means the 501,000 Newco Shares that are to be
transferred by Ballard to Daimler pursuant to
§3.1;
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(ag)
|
Daimler
Purchase Price has the meaning ascribed thereto in
§3.1;
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(ah)
|
Daimler
Supervisory Board Approval means the required approval of
Daimler’s supervisory board for the completion by Daimler of the
transactions contemplated herein and in the Transaction
Documents;
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(ai)
|
Data
Room means the Ballard data room posted on the Xxxxxxx Datasite
under the project name “balance07”, as in effect on the date hereof, as
evidenced by a compact disc to be delivered by Ballard to Daimler
and
Ford;
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(aj)
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DBF
means DBF Pref Share Holdings Inc., a corporation existing under
the laws
of Canada;
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(ak)
|
DBF
Shares means the Class A Common shares, the Class B Common shares
and the Class C Common shares in the capital of
DBF;
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(al)
|
Design
Engineering Services Agreement means the agreement between
Ballard, Newco, Daimler and Ford under which Ballard will provide
such
design engineering services as are requested by Newco, the form of
which
is to be settled between Daimler, Ford and Ballard during the Interim
Period on the basis of the terms set out in Exhibit
K;
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(am)
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Designated
Employees means the employees listed in Exhibit
M;
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(an)
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Employee
Plans means all oral or written employment agreements, and all
plans, policies, programs or practices applying to the Designated
Employees or any of them including, but not limited to, all compensation,
employee benefit, health, welfare, supplemental employment benefit,
bonus,
incentive, employee reward or recognition, employee assistance, pension,
RRSP, retirement, profit sharing, deferred compensation, stock
compensation, stock purchase, share option, share unit, stock
appreciation, phantom stock, vehicle, leave, sickness, disability,
termination, severance and change of control plans, policies, programs
or
practices;
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6 -
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(ao)
|
Encumbrance
means any mortgage, charge, pledge, hypothecation, lien, easement,
right-of-way, encroachment, security interest, covenant, condition,
right
of re entry, right of possession, lease, license, assignment, option,
claim or other title defect, encumbrance or charge, whether or not
registered or registrable and whether or not consensual or arising
by law,
statutory or otherwise;
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(ap)
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Exhibit
means an exhibit to this
Agreement;
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(aq)
|
Failure
Analysis Services Agreement means the agreement between Ballard,
Newco, Daimler and Ford under which Ballard will provide such failure
analysis services as are requested by Newco, the form of which is
to be
settled between Daimler, Ford and Ballard during the Interim Period
on the
basis of the terms set out in Exhibit
K;
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(ar)
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Fair
Market Value means, with respect to the Xxxxxxx Common Shares on
the date hereof, the average of the closing sale price per Xxxxxxx
Common
Share as reported on the NASDAQ National Market for the 20 trading
days
ending on the Business Day before the date
hereof;
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(as)
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Ford
Xxxxxxx Common Shares means 12,868,700 Xxxxxxx Common Shares
owned by Ford or a Ford Subsidiary that are to be transferred to
Xxxxxxx
pursuant to §4.3(a);
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(at)
|
Ford
Closing Opinion means the opinion of in-house counsel to Ford to
be rendered to, and be to the reasonable satisfaction of, Ballard
and
Daimler and dated and delivered on the Closing Date opining as to
the due
incorporation and existence of Ford, the due authorization, execution
and
delivery by Ford of this Agreement and the Transaction Documents
to which
it is a party and that completion by Ford of the transactions contemplated
hereby and thereby does not constitute or result in the breach of,
conflict with or violate Ford’s constating documents or any law, judgment,
decree, order, injunction, rule, statute or regulation of any court,
arbitrator or Governmental Authority by which it is
bound;
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-
7 -
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(au)
|
Ford
DBF Shares means 50 Class C DBF Shares owned by Ford and/or a
Ford Subsidiary that are to be transferred to Xxxxxxx pursuant to
§4.3(a);
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(av)
|
Ford
Improvements License has the meaning ascribed thereto in the
Improvements License Agreement;
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(aw)
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Ford
Newco Shares means the 300,000 Newco Shares that are to be
transferred by Xxxxxxx to Ford pursuant to
§4.1;
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(ax)
|
Ford
Purchase Price has the meaning ascribed thereto in
§4.1;
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(ay)
|
Fourth
Alliance Agreement means the Amended and Restated Fourth Alliance
Agreement between Ballard, Daimler, Ford and DBF dated February 15,
2007;
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(az)
|
Fuel
Cell means a proton exchange membrane fuel cell or fuel cell
stack (including, for greater certainty, a direct methanol proton
exchange
membrane fuel cell or fuel cell stack) and components, devices, materials
and subsystems thereof necessary or desirable for the functioning
of, and
comprising part of, the fuel cell or fuel cell stack,
including:
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(i)
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membrane
electrode assemblies;
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(ii)
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plates
with flow fields for fuel, oxidant and/or
coolant;
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(iii)
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seals
and compression hardware;
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(iv)
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the
supply and removal of gases and fluids to and from the fuel cell
stack, as
well as flow distribution of gases and fluids within fuel cell stacks
and
to individual fuel cells;
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(v)
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inlet
gas conditioning, including filtration, thermal regulation, pressure
regulation and humidification;
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(vi)
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vibration
isolation;
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(vii)
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stack
enclosures for mechanical, thermal, noise, vibration, water and
electromagnetic compatibility/electromagnetic interference (EMC/EMI)
protection;
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(viii)
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subsystems
and components thereof (including sensors) for regulating the operational
state of the fuel cell or fuel cell stack (including methods of control
that deal with operating a stack under a set of conditions in order
to
achieve a certain stack-related outcome, such as increased power
output,
efficiency, durability and freeze-start), and for control and monitoring
of the fuel cell stack to ensure compatibility of the fuel cell stack
and
fuel cell system inputs and
outputs;
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-
8 -
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(ix)
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power
conditioning subsystem;
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(x)
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electrical
and mechanical interfaces (including all interfaces with the remainder
of
the components for the application for fluids, high voltage, low
voltage,
controls, mounting and dampening
devices);
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(xi)
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software
interfaces between the stack control system and the fuel cell system
control system; and
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(xii)
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structural
elements or components thereof;
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but,
for
greater certainty, excludes every item included in the definition of Fuel Cell
System;
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(ba)
|
Fuel
Cell System means the components assembled or designed for
assembly around a Fuel Cell,
including:
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(i)
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the
fuel tank;
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|
|
(ii)
|
fuel
supply subsystem;
|
|
|
(iii)
|
fuel
processor;
|
|
|
(iv)
|
air
supply subsystem;
|
|
|
(v)
|
external
product water management subsystem;
|
|
|
(vi)
|
cooling
subsystem;
|
|
|
(vii)
|
fuel
cell systems controls (including sensors, controls hardware and
software);
|
|
|
(viii)
|
subsystems
unrelated to fuel cell stack
operation;
|
|
|
(ix)
|
power
distribution subsystem;
|
|
|
(x)
|
fuel
cell system component enclosures for mechanical, thermal, noise,
vibration, water and electromagnetic compatibility/electromagnetic
interference (EMC/EMI) protection;
|
-
9 -
which,
together with a Fuel Cell, takes fuel and delivers electricity for an
application but, for greater certainty, excludes every item included in the
definition of Fuel Cell;
|
|
(bb)
|
Fundamental
IPR means the IPR listed in Exhibit
X;
|
|
|
(bc)
|
GAAP
means, with respect to the determination of any accounting issue
relating
to a financial statement or record or any component thereof for any
corporation, limited liability company or body corporate, the generally
accepted accounting principles applicable, unless otherwise specified
in
this Agreement, in the country, the law of which governs the existence
of
such corporation, limited liability company or body
corporate;
|
|
|
(bd)
|
Governmental
Authority means:
|
|
|
(i)
|
any
multinational, federal, provincial, state, regional, municipal, local
or
other government, governmental or public department, central bank,
court,
tribunal, arbitral body, commission, board, bureau or agency, domestic
or
foreign;
|
|
|
(ii)
|
any
subdivision, agent, commission, board or authority of any of the
foregoing; or
|
|
|
(iii)
|
any
quasi-governmental or private body exercising any regulatory,
expropriation or taxing authority under or for the account of any
of the
foregoing, including NASDAQ and the
TSX;
|
|
|
(be)
|
Holding
Structure means the structure under which the Fundamental IPR and
the improvements thereto developed prior to the occurrence of the
Triggering Event will be held following the Closing Date, to be settled
on
the basis of the terms set out in the proposal comprising Exhibit
Y;
|
|
|
(bf)
|
Improvements
License Agreement means the license agreement in the form
comprising Exhibit G;
|
|
|
(bg)
|
Indemnity
Claims means claims in respect of any losses, liabilities,
damages, expenses, claims, actions, deficiencies, judgments and amounts
paid in settlement of any actions, made by Ballard, Daimler or Ford
under Part 7 of this
Agreement;
|
|
|
(bh)
|
Intellectual
Property Rights or IPR of a Person means that
Person's rights to all inventions, designs, trade secrets, ideas,
work,
technology, innovations, creations, concepts, moral rights, development
drawings, research, analysis, experiments, copyrights, data, formulas,
methods, procedures, processes, systems and techniques for which
a
registration or record as a patent, industrial design or similar
proprietary right has been obtained or applied for, but does not
include
trademarks or trade names;
|
-
10 -
|
|
(bi)
|
Interim
Period means the time period commencing on the date hereof and
ending at the Closing Time;
|
|
|
(bj)
|
Know-How
means all inventions, designs, trade secrets, ideas, work, technology,
know-how, innovations, creations, concepts, moral rights, development
drawings, research, analysis, experiments, copyrights, data, formulas,
methods, procedures, processes, systems and techniques for which
no
registration or record as a patent, industrial design or similar
proprietary right has been obtained or applied for, but does not
include
trademarks or trade names;
|
|
|
(bk)
|
Lab
Prototyping Services Agreement means the agreement between
Ballard, Newco, Daimler and Ford under which Ballard will provide
such lab
prototyping services as are requested by Newco, the form of which
is to be
settled between Daimler, Ford and Ballard during the Interim Period
on the
basis of the terms set out in Exhibit
K;
|
|
|
(bl)
|
Large
Bus means a passenger-carrying
vehicle:
|
|
|
(i)
|
10
meters in length or greater;
|
|
|
(ii)
|
7.5
tons GVWR or greater; and
|
|
|
(iii)
|
having
total system power of 100kw or
greater;
|
|
(bm)
|
Lease
means the lease of premises between Xxxxxxx and Newco, to be settled
on
the basis of the terms set out in the offer to lease comprising Exhibit
H;
|
|
|
(bn)
|
Master
License Agreement means the license agreement in the form
comprising Exhibit F;
|
|
|
(bo)
|
Manufacturing,
Engineering and Development Services Agreement means the
agreement between Ballard, Newco, Daimler and Ford under which Ballard
will provide such stack manufacturing services (MEAs, plates, sealing,
stack assembly, testing) as are requested by Newco, the form of which
is
to be settled between Daimler, Ford and Ballard during the Interim
Period
on the basis of the terms set out in Exhibit
K;
|
-
11 -
|
|
(bp)
|
NASDAQ
means the National Association of Securities Dealers Automated Quotation
System;
|
|
|
(bq)
|
Newco
means a corporation to be incorporated under the
BCBCA;
|
|
|
(br)
|
Newco
Common Shares means common shares in the capital of
Newco;
|
|
|
(bs)
|
Newco
Purchase Price has the meaning ascribed thereto in
§2.3;
|
|
|
(bt)
|
Non-Accepting
Employees means all Designated Employees who do not become
Transferred Employees;
|
|
|
(bu)
|
Non-Automotive
Application means any Auxiliary Power Unit Application and every
other application or system incorporating a Fuel Cell other than
an
Automotive Propulsion Application;
|
|
|
(bv)
|
Non-Automotive
IPR means the IPR listed in Exhibit
W;
|
|
(bw)
|
Notice
has the meaning ascribed to it in
§11.6;
|
|
|
(bx)
|
NuCellSys
means NuCellSys GmbH (formerly Xxxxxxx Power Systems
AG);
|
|
|
(by)
|
NuCellSys
Agreement means the agreement between Ballard, Daimler, Ford and
NuCellSys in the form comprising Exhibit
L;
|
|
|
(bz)
|
OEM
License has the meaning ascribed thereto in the Master License
Agreement;
|
|
|
(ca)
|
Ordinary
Resolution means the resolution to be voted upon by the Ballard
Shareholders (excluding Daimler and Ford) approving the transactions
contemplated in this Agreement, together with any approval required
to
provide for the continuation of any equity-based compensation issued
to
the Transferred Employees prior to the Closing Date, substantially
in the
form comprising Exhibit A;
|
|
|
(cb)
|
Permitted
Encumbrances means the encumbrances listed in Exhibit
S affecting the Xxxxxxx Automotive Assets, the Automotive IPR, the
Fundamental IPR or the Non-Automotive
IPR;
|
|
|
(cc)
|
Person
means an individual, corporation, body corporate, firm, limited liability
company, partnership, syndicate, joint venture, society, association,
trust or unincorporated organization or Governmental Authority or
trustee,
executor, administrator or other legal
representative;
|
-
12 -
|
|
(cd)
|
Program
Documents means research and development documents and product
development documents relating to Fuel Cell development conducted
by
Ballard for Daimler and Ford, but does not include documents relating
to
Xxxxxxx’x manufacturing equipment or Xxxxxxx’x manufacturing
processes;
|
|
|
(ce)
|
Regulatory
Approval means any approval, authorization, order or consent
required by law to be obtained from, or a filing required by law
to be
made with, a Governmental Authority with respect to the transactions
contemplated by this Agreement;
|
|
|
(cf)
|
Safari
License means the License Agreement dated July 22, 2005 between
Ballard and NuCellSys;
|
|
|
(cg)
|
Services
Agreements means the Administrative Services Agreement, the
Manufacturing, Engineering and Development Services Agreement, the
Design
Engineering Services Agreement, the Lab Prototyping Services Agreement,
the Testing Services Agreement and the Failure Analysis Services
Agreement;
|
|
|
(ch)
|
Shareholders’
Agreement means the unanimous shareholders’ agreement between
Ballard, Daimler, Ford and Newco governing certain rights and obligations
of Ballard, Daimler and Ford in connection with Newco, in the form
comprising Exhibit I;
|
|
|
(ci)
|
Shuttle
Bus means a passenger-carrying vehicle which is
either:
|
|
|
(i)
|
less
than 10 meters in length;
|
|
|
(ii)
|
less
than 7.5 tons GVWR; or
|
|
|
(iii)
|
has
a total system power of less than
100kw;
|
|
|
(cj)
|
Special
Resolution means the special resolution to be voted upon by the
Ballard Shareholders (including Daimler and Ford) approving the Ballard
Articles of Amendment, substantially in the form comprising Exhibit
B;
|
|
|
(ck)
|
Stikemans
Closing Opinion means the opinion of Stikeman Elliott LLP, to be
rendered to, and be to the reasonable satisfaction of, Daimler and
Ford
and dated and delivered on the Closing Date opining as to the due
incorporation and existence of Newco, the due authorization, execution
and
delivery by Newco of the Transaction Documents to which it is a party
and
that the completion by it of the transactions contemplated thereby
does
not constitute or result in the breach of, conflict with or violate
Newco’s constating documents;
|
-
13 -
|
|
(cl)
|
Subsidiary
of a Party means a corporation, limited liability company, other
body
corporate or other entity which that Party, directly or indirectly,
Controls and:
|
|
|
(i)
|
in
the case of Ford includes NuCellSys, for as long as Daimler, Ford
or a
Subsidiary of either of them collectively hold more than 50% of the
outstanding securities of NuCellSys entitling the holder thereof
to cast
votes for the election of directors of NuCellSys (or members of its
governing body if NuCellSys has no board of directors) and Daimler
does
not, directly or indirectly, Control NuCellSys;
and
|
|
|
(ii)
|
in
the case of Daimler includes:
|
|
|
(A)
|
NuCellSys,
for as long as Daimler, Ford or a Subsidiary of either of them
collectively hold more than 50% of the outstanding securities of
NuCellSys
entitling the holder thereof to cast votes for the election of directors
of NuCellSys (or members of its governing body if NuCellSys has no
board
of directors) and Ford does not, directly or indirectly, Control
NuCellSys; and
|
|
|
(B)
|
following
the Closing Date, Newco, for as long as Daimler, Ford or a Subsidiary
of
either of them collectively hold more than 50% of the outstanding
securities of Newco entitling the holder thereof to cast votes for
the
election of directors of Newco (or members of its governing body
if Newco
has no board of directors) and Ford does not, directly or indirectly,
Control Newco;
|
|
(cm)
|
Tangible
Automotive Assets means certain machinery, equipment, computers,
furniture, accessories, supplies and inventory of Xxxxxxx used by
Xxxxxxx
in carrying on the Xxxxxxx Automotive Business, all as listed in
Exhibit
P;
|
|
|
(cn)
|
Tax
Act means the Income Tax Act
(Canada);
|
|
|
(co)
|
Taxation
Authority means any Governmental Authority competent to impose
any liability in respect of Taxes or responsible for the administration
and/or collection of Taxes or enforcement of any law in relation
to
Taxes;
|
-
14 -
|
|
(cp)
|
Taxes
means all taxes of any kind, including income, franchise,
withholding, employment, excise, capital, real property, value added
and
sales taxes, and interest and penalties
thereon;
|
|
|
(cq)
|
Termination
Agreement means the Agreement between Ballard, Daimler, Ford and
DBF, terminating the Fourth Alliance Agreement and the Safari Licenses
in
the form comprising Exhibit J;
|
|
|
(cr)
|
Termination
Time has the meaning ascribed to it in
§10.1;
|
|
|
(cs)
|
Testing
Services Agreement means the agreement between Ballard, Newco,
Daimler and Ford under which Ballard will provide such testing services
(calibration & maintenance services, set-up and teardown of tests and
data capture & reporting) as are requested by Newco, the form of which
is to be settled between Daimler, Ford and Ballard during the Interim
Period on the basis of the terms set out in Exhibit
K;
|
|
|
(ct)
|
Transaction
Documents means, collectively, the Asset Transfer Agreement, the
Xxxxxxx IPR Transfer Agreement, the Master License Agreement, the
Improvements License Agreement, the Lease, the NuCellSys Agreement,
the
Shareholders’ Agreement, the Termination Agreement and the Services
Agreements, together with any documents and instruments delivered
thereunder or related thereto;
|
|
|
(cu)
|
Transferred
Employees means those Designated Employees who accept offers of
continuing employment with Newco before the Closing
Date;
|
|
|
(cv)
|
Triggering
Event means the first to occur
of:
|
|
|
(i)
|
the
disposition by Ballard of its last Newco Common Share;
and
|
|
|
(ii)
|
the
acquisition of Control of Ballard by any Person;
and
|
|
(cw)
|
TSX
means The Toronto Stock Exchange.
|
Interpretation
|
1.2
|
In
this Agreement, except as otherwise expressly provided or as the
context
otherwise requires,
|
|
|
(a)
|
"this
Agreement" means this Restructuring Agreement as from time to
time supplemented or amended by one or more agreements entered into
pursuant to the applicable provisions hereof and includes all Exhibits
hereto;
|
-
15 -
|
|
(b)
|
the
headings in this Agreement are inserted for convenience only and
do not
form a part of this Agreement and are not intended to interpret,
define or
limit the scope, extent or intent of this Agreement or any provision
hereof;
|
|
|
(c)
|
the
word "including", when following any general statement or
term, is not to be construed as limiting the general statement or
term to
the specific items or matters set forth or to similar items or matters,
but rather as permitting the general statement or term to refer to
all
other items or matters that could reasonably fall within its broadest
possible scope;
|
|
|
(d)
|
all
accounting terms not otherwise defined herein have the meanings assigned
to them, and all calculations to be made hereunder are to be made,
in
accordance with GAAP applied on a consistent
basis;
|
|
|
(e)
|
a
reference to a statute includes all regulations made thereunder,
all
amendments to the statute or regulations in force from time to time,
and
any statute or regulation that supplements or supersedes such statute
or
regulations;
|
|
|
(f)
|
a
reference to an entity includes any successor to that
entity;
|
|
|
(g)
|
words
importing the masculine gender include the feminine or neuter, words
in
the singular include the plural, words importing a corporate entity
include individuals, and vice
versa;
|
|
|
(h)
|
a
reference to "approval",
"authorization", "consent" or
"waiver" means a written approval, authorization, consent
or waiver;
|
|
|
(i)
|
a
reference to a Part is to a Part of this Agreement or to a Part of
an
Exhibit, as the case may be, and the symbol § followed by a number or some
combination of numbers and letters refers to the section, paragraph,
subparagraph, clause or subclause of this Agreement so
designated;
|
|
|
(j)
|
except
as otherwise expressly provided, a reference to currency herein means
United States dollars and all amounts payable hereunder will be paid
in
United States dollars calculated at the relevant
time;
|
|
|
(k)
|
the
definition of "knowledge" when used in this Agreement means, with
respect
to:
|
-
16 -
|
|
(i)
|
Xxxxxxx,
the actual knowledge of any one of the
following:
|
|
|
(A)
|
Xxxx
Xxxxxxxx;
|
|
|
(B)
|
Xxxxx
X. Xxxxx;
|
|
|
(C)
|
Xxxxxxx
Xxxxx;
|
|
|
(D)
|
Xxxxx
Xxxx;
|
|
|
(E)
|
Xxxxx
Kumoi; and
|
|
|
(F)
|
Xxxxx
Xxxxxxx;
|
|
|
(ii)
|
Daimler,
the actual knowledge of any one of the
following:
|
|
|
(A)
|
Xxxxxxx
Xxxxxxx;
|
|
|
(B)
|
Xxxxxxxxx
Xxxxxxxxx;
|
|
|
(C)
|
Xxxxxx
Xxxxxxxx;
|
|
|
(D)
|
Xxxxxxxxx
Xxxxxxx;
|
|
|
(E)
|
Xxxxxxx
Xxxxx; and
|
|
|
(F)
|
Xxxxxx
Xxxxxxxx; and
|
|
|
(iii)
|
Ford,
the actual knowledge of any one of the
following:
|
|
|
(A)
|
Xxxxxxx
Xxxx;
|
|
|
(B)
|
Xxxxx
Xxxxxx;
|
|
|
(C)
|
Xxxx
Xxxxxxx;
|
|
|
(D)
|
Xxxxxx
Xxxxxxx; and
|
|
|
(E)
|
Xxxxxxxx
Xxxxxxxxx; and
|
|
|
(l)
|
all
payments and documents to be delivered pursuant to this Agreement
will be
tabled by the appropriate Parties at the place of the Closing at
or before
the Closing Time and will be held in escrow pending the tabling of
all
such payments and documents at the Closing. At the Closing all
such payments and documents will be released from escrow and will
be
deemed to be delivered in the sequence necessary to complete the
various
transactions required by this Agreement to occur at the Closing in
the
order in which such transactions are set out in this
Agreement.
|
-
17 -
Exhibits
|
1.3
|
The
following Exhibits are attached to and incorporated by reference
in this
Agreement:
|
|
Exhibit
|
Description
|
|
|
Exhibit
A
|
-
|
Ordinary
Resolution
|
|
Exhibit
B
|
-
|
Special
Resolution
|
|
Exhibit
C
|
-
|
Xxxxxxx
Articles of Amendment
|
Transaction
Documents
|
Exhibit
D
|
-
|
Asset
Transfer Agreement
|
|
Exhibit
E
|
-
|
Xxxxxxx
IPR Transfer Agreement
|
|
Exhibit
F
|
-
|
Master
License Agreement
|
|
Exhibit
G
|
-
|
Improvements
License Agreement
|
|
Exhibit
H
|
-
|
Offer
to Lease
|
|
Exhibit
I
|
-
|
Shareholders’
Agreement
|
|
Exhibit
J
|
-
|
Termination
Agreement
|
|
Exhibit
K
|
-
|
Services
Agreements Term Sheets
|
|
Exhibit
L
|
-
|
NuCellSys
Agreement
|
Disclosure
Schedules
|
Exhibit
M
|
-
|
Designated
Employees
|
|
Exhibit
N
|
-
|
Automotive
Contracts
|
|
Exhibit
O
|
-
|
Excluded
Automotive Contracts
|
|
Exhibit
P
|
-
|
Tangible
Automotive Assets
|
-
18 -
|
Exhibit
Q
|
-
|
Automotive
Liabilities
|
|
Exhibit
R
|
-
|
Excluded
Automotive Liabilities
|
|
Exhibit
S
|
-
|
Permitted
Encumbrances
|
|
Exhibit
T
|
-
|
Regulatory
Approvals
|
|
Exhibit
U
|
-
|
Consents
|
IPR
Schedules
|
Exhibit
V
|
-
|
Automotive
IPR
|
|
Exhibit
W
|
-
|
Non-Automotive
IPR
|
|
Exhibit
X
|
-
|
Fundamental
IPR
|
|
Exhibit
Y
|
-
|
Holding
Structure Term Sheet
|
|
1.4
|
The
Parties acknowledge and agree that as the forms of the Lease, the
Services
Agreements and the documents required to implement the Holding Structure
are settled, the settled form will be exchanged between the Parties
and
incorporated into this Agreement, at which point they will replace
the
related Exhibits attached hereto on the Closing
Date.
|
PART
2
CAPITALIZATION
OF NEWCO
Incorporation
and Organization of Newco
|
2.1
|
Xxxxxxx
will establish Newco as a BCBCA corporation as soon as
practical. To do so, Xxxxxxx will use the form of notice of
articles and articles (the “Articles”) which Daimler and
Ford will prepare to reflect the terms of Part 4 of the Shareholders’
Agreement, and which they will provide to Xxxxxxx no later than November
16, 2007.
|
Transfers
by Xxxxxxx to Newco
|
2.2
|
Upon
the terms and subject to the conditions of this Agreement, at the
Closing
Time Xxxxxxx will transfer the Xxxxxxx Automotive Assets to Newco,
free
and clear of all Encumbrances except for Permitted
Encumbrances.
|
-
19 -
Calculation
of Newco Purchase Price
|
2.3
|
The
purchase price payable by Newco to Xxxxxxx for the transfer of the
Xxxxxxx
Automotive Assets (the "Newco Purchase Price") shall be
equal to the fair market value of the Xxxxxxx Automotive Assets,
which the
Parties agree is equal to the sum of the following
amounts:
|
|
|
(a)
|
$2
million for the cash set out in section 1 of Exhibit
P;
|
|
|
(b)
|
the
book value at the Closing Time of the inventory (warranty spares)
set out
in section 2 of Exhibit P;
|
|
|
(c)
|
the
book value at the Closing Time of the inventory (test articles) set
out in
section 3 of Exhibit P;
|
|
|
(d)
|
$3,100,000
to the test stations set out in section 4 of Exhibit P;
and
|
|
|
(e)
|
$100,000
to the office equipment set out in section 5 of Exhibit
P.
|
Payment
of Newco Purchase Price
|
2.4
|
Upon
the terms and subject to the conditions of this Agreement, at the
Closing
Time Newco will pay to Xxxxxxx the Newco Purchase Price
by:
|
|
|
(a)
|
issuing
to Xxxxxxx 1,000,000 Newco Common Shares;
and
|
|
|
(b)
|
assuming
the Xxxxxxx Automotive Liabilities.
|
Payment
of Transfer Taxes
|
2.5
|
Xxxxxxx
will make a contribution of capital to Newco by paying on its behalf
the
British Columbia social service tax exigible pursuant to the British
Columbia Social Service Tax Act in respect of the transfer of the
Xxxxxxx Automotive Assets to Newco described in §2.2 based on the agreed
fair market value of the exigible tangible personal property specified
in
§2.3. Xxxxxxx will provide evidence to Newco, Daimler and Ford
of the timely remittance to the appropriate Taxation Authority of
such
Tax. However, in the event of a reassessment by the application
Taxation Authority Xxxxxxx will have no obligation to make any social
service tax payments in excess of an aggregate of
CAD$350,000. Newco will be liable for and shall pay to the
appropriate Taxation Authority all other Taxes, if any, properly
payable
by a buyer upon and in connection with the conveyance and transfer
to it
of the Xxxxxxx Automotive Assets.
|
-
20 -
Tax
Elections
|
2.6
|
In
respect of the transaction contemplated in this Part 2, Xxxxxxx and
Newco
will execute and file on a timely basis all documents
required:
|
|
|
(a)
|
to
make a joint election under subsection 85(1) of the Tax Act, and
any
equivalent or corresponding provision under similar applicable taxation
legislation, in respect of the purchase and sale contemplated under
this
Part 2. For purposes of such election(s), Xxxxxxx and Newco
will elect transfer prices in respect of the Xxxxxxx Automotive Assets
determined by Xxxxxxx in its sole discretion provided that the elected
amounts are within the range permitted by the applicable provisions
of the
Tax Act; and
|
|
|
(b)
|
to
make a joint election to have the rules in subsection 20(24) of theTax
Act, and any equivalent or corresponding provision under similar
applicable taxation legislation, apply to the Xxxxxxx Automotive
Liabilities and to which paragraph 12(1)(a) of the Tax Act
applies. Xxxxxxx and Newco acknowledge that Xxxxxxx is
transferring assets to Newco which have a value equal to the elected
amount as consideration for the assumption by Newco of such obligations
of
Xxxxxxx.
|
PART
3
SALE
TO DAIMLER
Transfer
by Xxxxxxx to Daimler
|
3.1
|
Upon
the terms and subject to the conditions of this Agreement, immediately
following completion of the transaction contemplated in Part 2, Xxxxxxx
will transfer to Daimler:
|
|
|
(a)
|
the
Daimler Newco Shares, representing 50.1% of all of the issued and
outstanding Newco Common Shares;
|
|
|
(b)
|
an
undivided half-interest in the Automotive IPR (but reserving the
right to
use the Automotive IPR for the purposes, and on the terms, contemplated
by
the OEM License) to be held jointly with
Ford;
|
|
|
(c)
|
the
right to use the Fundamental IPR and the Non-Automotive IPR for the
purposes, and on the terms, contemplated by the Xxxxxxx
License;
|
|
|
(d)
|
$36,200,000;
and
|
-
21 -
|
|
(e)
|
anything
contemplated to be transferred by Xxxxxxx to Daimler to implement
the
Holdings Structure;
|
in
each
case free and clear of all Encumbrances except for Permitted
Encumbrances.
Calculation
of Daimler Purchase Price
|
3.2
|
The
purchase price payable by Daimler to Xxxxxxx for the transfer of
the
assets as described in §3.1 (the "Daimler Purchase
Price") shall be equal to:
|
|
|
(a)
|
the
Fair Market Value of the Daimler Xxxxxxx Common Shares;
plus
|
|
|
(b)
|
$25,000,
being one half of the fair market value of the IPR transferred by
NuCellSys to Xxxxxxx as contemplated in the NuCellsys Agreement;
plus
|
|
|
(c)
|
$5,000,
being the fair market value of the right to use the IPR specified
in the
Daimler Improvements License for the purposes, and on the terms,
contemplated therein.
|
Payment
of Daimler Purchase Price
|
3.3
|
Upon
the terms and subject to the conditions of this Agreement, at the
Closing
Time Daimler will pay to Xxxxxxx the Daimler Purchase Price
by:
|
|
|
(a)
|
transferring
to Xxxxxxx all of the Daimler Xxxxxxx Common Shares and all of the
Daimler
DBF Shares, in each case free and clear of all
Encumbrances;
|
|
|
(b)
|
causing
NuCellSys to transfer to Xxxxxxx the IPR contemplated in the NuCellsys
Agreement; and
|
|
|
(c)
|
granting
Xxxxxxx the right to use the IPR specified in the Daimler Improvements
License for the purposes, and on the terms, contemplated by the Daimler
Improvements License.
|
Allocation
of Daimler Purchase Price
|
3.4
|
The
Daimler Purchase Price shall be allocated as
follows:
|
|
|
(a)
|
$36,200,000
to the transfer contemplated in
§3.1(d);
|
|
|
(b)
|
an
amount equal to 50.1% of the difference between the Newco Purchase
Price
and the book value of the Xxxxxxx Automotive Liabilities at the Closing
Time to the Daimler Newco Shares;
|
-
22 -
|
|
(c)
|
$15,636,704
to the Xxxxxxx License; and
|
|
|
(d)
|
the
balance to the joint interest in the Automotive
IPR;
|
and
the
Parties agree to file their respective tax filings on this basis.
Third
Parties
|
3.5
|
It
is understood and agreed by the Parties that the foregoing determinations
of the value of the Xxxxxxx License and the Daimler Improvements
License,
is based on a variety of factors unique to the Parties and the
circumstances of this Agreement, is non-precedential and shall not
be
citable in any proceedings other than as between some or all of the
Parties in respect of this Agreement or as between a Party and a
Taxation
Authority.
|
PART
4
SALE
TO FORD
Transfer
by Xxxxxxx to Ford
|
4.1
|
Upon
the terms and subject to the conditions of this Agreement, immediately
following completion of the transaction contemplated in Part 2, Xxxxxxx
will transfer to Ford:
|
|
|
(a)
|
the
Ford Newco Shares, representing 30% of all of the issued and outstanding
Newco Common Shares;
|
|
|
(b)
|
an
undivided half-interest in the Automotive IPR (but reserving the
right to
use the Automotive IPR for the purposes, and on the terms, contemplated
by
the OEM License) to be held jointly with
Daimler;
|
|
|
(c)
|
the
right to use the Fundamental IPR and the Non-Automotive IPR for the
purposes, and on the terms, contemplated by the Xxxxxxx
License;
|
|
|
(d)
|
$21,800,000;
and
|
|
|
(e)
|
anything
contemplated to be transferred by Xxxxxxx to Ford to implement the
Holdings Structure;
|
in
each
case free and clear of all Encumbrances except for Permitted
Encumbrances.
-
23 -
Calculation
of Ford Purchase Price
|
4.2
|
The
purchase price payable by Ford to Xxxxxxx for the transfer of the
assets
as described in §4.1 (the "Ford Purchase Price") shall be
equal to:
|
|
|
(a)
|
the
Fair Market Value of the Ford Xxxxxxx Common Shares;
plus
|
|
|
(b)
|
$25,000,
being one half of the fair market value of the IPR transferred by
NuCellSys to Xxxxxxx as contemplated in the NuCellsys Agreement;
plus
|
|
|
(c)
|
$5,000,
being the being the fair market value of the right to use the IPR
specified in the Ford Improvements License for the purposes, and
on the
terms, contemplated therein.
|
Payment
of Ford Purchase Price
|
4.3
|
Upon
the terms and subject to the conditions of this Agreement, at the
Closing
Time Ford will pay to Xxxxxxx the Ford Purchase Price
by:
|
|
|
(a)
|
transferring
to Xxxxxxx all of the Ford Xxxxxxx Common Shares and all of the Ford
DBF
Shares, in each case free and clear of all
Encumbrances;
|
|
|
(b)
|
causing
NuCellSys to transfer to Xxxxxxx the IPR contemplated in the NuCellsys
Agreement; and
|
|
|
(c)
|
granting
Xxxxxxx the right to use the IPR specified in the Ford Improvements
License for the purposes, and on the terms, contemplated by the Ford
Improvements License.
|
Allocation
of Ford Purchase Price
|
4.4
|
The
Ford Purchase Price shall be allocated as
follows:
|
|
|
(a)
|
$21,800,000
to the transfer contemplated in
§4.1(d);
|
|
|
(b)
|
an
amount equal to 30% of the difference between the Newco Purchase
Price and
the book value of the Xxxxxxx Automotive Liabilities at the Closing
Time
to the Ford Newco Shares;
|
|
|
(c)
|
$9,363,296
to the Xxxxxxx License; and
|
|
|
(d)
|
the
balance to the joint interest in the Automotive
IPR;
|
and
the
Parties agree to file their respective tax filings on this basis.
-
24 -
Third
Parties
|
4.5
|
It
is understood and agreed by the Parties that the foregoing determinations
of the value of the Xxxxxxx License and the Ford Improvements License
is
based on a variety of factors unique to the Parties and the circumstances
of this Agreement, is non-precedential and shall not be citable in
any
proceedings other than as between some or all of the Parties in respect
of
this Agreement or as between a Party and a Taxation
Authority.
|
PART
5
REPRESENTATIONS,
WARRANTIES AND COVENANTS
Representations
and Warranties of Xxxxxxx
|
5.1
|
In
order to induce Daimler and Ford to enter into and to consummate
the
transactions contemplated by this Agreement, Xxxxxxx represents and
warrants to each of Daimler and Ford that the following statements
are
true, accurate and complete as at the date of execution and delivery
of
this Agreement and will be true as at the Closing Time as if such
statements were made at each such
time:
|
|
|
(a)
|
Xxxxxxx
is a corporation incorporated and validly existing under the federal
laws
of Canada and is in good standing under the federal laws of
Canada;
|
|
|
(b)
|
Xxxxxxx
has the corporate power and capacity to enter into and perform its
obligations under this Agreement and the Transaction Documents to
which it
is a party;
|
|
|
(c)
|
Xxxxxxx
is solvent and has not committed any act of bankruptcy, proposed
a
compromise or arrangement to its creditors generally, had any petition
in
bankruptcy filed against it, made a voluntary assignment in bankruptcy
or
taken any proceedings to be declared bankrupt, to liquidate its assets
or
to be dissolved;
|
|
|
(d)
|
the
execution, delivery and performance by Xxxxxxx of this Agreement
and each
of the Transaction Documents to which it is a party has been duly
authorized by all necessary corporate action on its part (other than
the
approval by the Xxxxxxx Shareholders of the Ordinary Resolution and
the
Special Resolution) and no other corporate proceedings on the part
of
Xxxxxxx are necessary;
|
|
|
(e)
|
as
at the date hereof, Xxxxxxx'x board of directors has determined that
the
transactions contemplated herein are fair to the Xxxxxxx Shareholders
(other than Daimler, Ford and their respective Subsidiaries) and
in the
best interests of Xxxxxxx, and has determined to recommend that the
Xxxxxxx Shareholders approve the Ordinary Resolution and the Special
Resolution, and to include such recommendation in the Xxxxxxx
Circular;
|
-
25 -
|
|
(f)
|
this
Agreement has been and, on the Closing Date, each of the Transaction
Documents to which Xxxxxxx is a party will be, duly executed and
delivered
by it;
|
|
|
(g)
|
this
Agreement and the Transaction Documents to which Xxxxxxx is a party
will,
upon execution and delivery, constitute a legal, valid and binding
obligation of Xxxxxxx, enforceable against Xxxxxxx in accordance
with
their terms, subject to applicable bankruptcy, insolvency, reorganization
or other laws affecting creditors’ rights generally and specific
performance and injunctive relief only being awarded at the discretion
of
the courts;
|
|
|
(h)
|
Xxxxxxx
does not have any knowledge of any fact or circumstance which adversely
affects its ability to complete the transactions contemplated in
this
Agreement and the Transaction Documents to which it is a party and,
as at
the date hereof, there are no actions, claims, suits, judgments,
orders,
investigations or proceedings outstanding or, to the knowledge of
Xxxxxxx,
pending or threatened by or against or concerning Xxxxxxx that could
reasonably be expected to adversely affect the ability of Xxxxxxx
to
perform its obligations pursuant to this Agreement, any of the Transaction
Documents to which it is a party, in any court or before or by any
Governmental Authority, or before or by any
arbitrator;
|
|
|
(i)
|
neither
this Agreement nor any of the Transaction Documents to which Xxxxxxx
is a
party contains, or will contain, any untrue, misleading or incomplete
statement of material fact made by
Xxxxxxx;
|
|
|
(j)
|
except
as expressly set out in this Agreement, neither the execution nor
the
delivery by Xxxxxxx of this Agreement or any Transaction Document,
nor the
completion by it of the transactions referred to in this Agreement
or any
of the Transaction Documents to which it is a party, nor the performance
by it of its obligations under, and its compliance with, the terms
of this
Agreement and each of the Transaction Documents to which it is a
party
will constitute or result in the breach of, or default under, any
terms,
provisions or conditions of, or conflict with, violate or give to
any
Person any right, after giving of notice or lapse of time or otherwise,
of
acceleration, termination or cancellation in, or with respect
to:
|
-
26 -
|
|
(i)
|
any
constating document of Xxxxxxx or any resolution of the directors
or
shareholders of Xxxxxxx;
|
|
|
(ii)
|
any
indenture, mortgage, deed of trust, agreement contract, lease, franchise,
certificate, consent (whether written or oral), permit, license,
authority, registration, or other instrument or commitment to which
Xxxxxxx is a party or by which it is bound;
or
|
|
|
(iii)
|
any
law, judgment, decree, order, injunction, rule, statute or regulation
of
any court, arbitrator or Governmental Authority by which Xxxxxxx
is bound
or is subject;
|
|
|
(k)
|
except
as disclosed in Exhibit T and Exhibit U, no Regulatory Approval
or Consent is required by Xxxxxxx
to:
|
|
|
(i)
|
execute
and deliver this Agreement or any of the Transaction Documents to
which it
is a party;
|
|
|
(ii)
|
incur
its obligations pursuant to this Agreement or any of the Transaction
Documents to which it is a party;
|
|
|
(iii)
|
sell,
assign and transfer the Daimler Newco Shares to Daimler and the Ford
Newco
Shares to Ford;
|
|
|
(iv)
|
purchase
the Daimler Xxxxxxx Common Shares, the Daimler DBF Shares, the Ford
Xxxxxxx Common Shares and the Ford DBF
Shares;
|
|
|
(v)
|
duly
perform and observe the terms and provisions of this Agreement and
the
Transaction Documents to which it is a party;
or
|
|
|
(vi)
|
render
this Agreement or any of the Transaction Documents to which it is
a party,
legal, valid, binding and enforceable against
it;
|
|
|
(l)
|
immediately
prior to the Closing, the Daimler Newco Shares and the Ford Newco
Shares
will be owned by Xxxxxxx as the registered and beneficial owner with
good
title, free and clear of all Encumbrances other than restrictions
on
transfer, if any, contained in the constating documents of
Newco;
|
|
|
(m)
|
upon
completion of the transactions contemplated by this Agreement, Daimler
will have good title to the Daimler Newco Shares and Ford will have
good
title to the Ford Newco Shares, free and clear of all Encumbrances
other
than:
|
-
27 -
|
|
(i)
|
those
restrictions on transfer, if any, contained in the constating documents
of
Newco or the Shareholders’ Agreement;
and
|
|
|
(ii)
|
Encumbrances
granted by Daimler or Ford, as the case may
be;
|
|
|
(n)
|
the
authorized capital of Newco will consist of an unlimited number of
Newco
Common Shares of which, immediately following the Closing, 1,000,000
will
be issued and outstanding;
|
|
|
(o)
|
except
as may be granted by or in favour of Ford and Daimler, at the Closing
Time, no person shall have any right, agreement or option, present
or
future, contingent or absolute, or any right capable of becoming
a right,
agreement or option binding on Xxxxxxx or Newco, for the issue or
allotment of any unissued Newco Shares or any other security convertible
into, or exchangeable or exercisable for, any such Newco
Shares;
|
|
|
(p)
|
on
the Closing Date, the corporate records of Newco will contain complete
and
accurate records of all resolutions passed by its shareholders and
its
board of directors since the date of its incorporation, and all other
documents which are required under applicable laws to be contained
in its
corporate records;
|
|
|
(q)
|
the
book value of the Xxxxxxx Automotive Assets, for the purposes of
the
Investment Canada Act, is less than
CAD$281,000,000;
|
|
|
(r)
|
immediately
prior to the Closing Time, Newco will have no liabilities or obligations
of any nature (whether absolute, accrued, contingent or otherwise)
except
to complete the transactions contemplated herein and, immediately
following the Closing Time Newco will have no liabilities or obligations
of any nature (whether absolute, accrued, contingent or otherwise)
other
than:
|
|
|
(i)
|
the
Xxxxxxx Automotive Liabilities;
|
|
|
(ii)
|
liabilities
accruing from and after the Closing Time to the Transferred
Employees;
|
|
|
(iii)
|
liabilities
contemplated under §2.5; and
|
-
28 -
|
|
(iv)
|
liabilities
or obligations authorized or permitted by either Daimler or
Ford;
|
|
|
(s)
|
the
contracts listed in Exhibit N, Exhibit O, the Fourth Alliance Agreement,
the Safari License and the employment contracts in respect of the
employees engaged in the Xxxxxxx Automotive Business comprise all
of the
contracts material to the operation of the Xxxxxxx Automotive Business
as
currently conducted by Xxxxxxx;
|
|
|
(t)
|
to
the knowledge of Xxxxxxx, there are no opposition or similar
administrative proceedings outstanding with respect to any of the
Intellectual Property Rights listed in Exhibit V, Exhibit W or
Exhibit X;
|
|
|
(u)
|
except
for the Safari License and the Permitted Encumbrances, Xxxxxxx has
not
granted any license of any kind to a third party relating to the
Intellectual Property Rights which are to be transferred by Xxxxxxx
to
Daimler and Ford under the Xxxxxxx IPR Transfer Agreement or which
are to
be licensed by Xxxxxxx to Daimler and Ford under §2.1 and §2.3 of the
Master License Agreement;
|
|
|
(v)
|
to
the knowledge of Xxxxxxx, there is no fact or circumstance which
would
render any licence granted to or by Xxxxxxx of any IPR included in
the
Fundamental IPR or Non-Automotive IPR of IPR invalid, unenforceable
or
liable to cancellation or
termination;
|
|
|
(w)
|
upon
completion of the transactions contemplated by this Agreement, Newco
will
have good and marketable title to the Xxxxxxx Automotive Assets,
free and
clear of all Encumbrances other
than:
|
|
|
(i)
|
Permitted
Encumbrances; and
|
|
|
(ii)
|
Encumbrances
authorized or permitted by Daimler and
Ford;
|
|
|
(x)
|
as
of the date hereof, all sales taxes collected by Xxxxxxx have been
remitted as and when due as required pursuant to the British Columbia
Social Service Tax Act;
|
|
|
(y)
|
to
the knowledge of Xxxxxxx, it is in material compliance with all applicable
laws pertaining to the Designated Employees, including but not limited
to
all applicable laws respecting employment standards, human rights,
pay
equity, labour relations, occupational health and safety, privacy,
workers’ compensation, pensions, benefits, income tax, and employment
insurance;
|
-
29 -
|
|
(z)
|
to
the knowledge of Xxxxxxx, as at the date hereof, there is no outstanding,
pending, threatened or anticipated assessment, action, cause of action,
claim, complaint, demand, prosecution, suit, order, certificate,
lien or
judgment against Xxxxxxx or its directors, officers or agents, in
respect
of any Designated Employee, including but not limited to applications,
complaints or proceedings under the British Columbia Labour Relations
Code, Employment Standards Act, Human Rights Code, Personal Information
Protection Act, or Workers’ Compensation
Act;
|
|
|
(aa)
|
as
at the date hereof:
|
|
|
(i)
|
Xxxxxxx
is not a party to any collective agreement covering any of the Designated
Employees;
|
|
|
(ii)
|
no
trade union or employee association has any bargaining rights acquired
by
either certification or voluntary recognition with respect to any
of the
Designated Employees; and
|
|
|
(iii)
|
to
the knowledge of Xxxxxxx, there are no current attempts by any trade
union
or employee association to organize any of the Designated
Employees;
|
|
|
(bb)
|
all
Employee Plans have been disclosed in the Data Room;
and
|
|
|
(cc)
|
the
records maintained by Xxxxxxx relating to the Designated Employees
set out
all of their accrued entitlements under any and all Employee
Plans.
|
Representations
and Warranties of Daimler
|
5.2
|
In
order to induce Xxxxxxx and Ford to enter into and to consummate
the
transactions contemplated by this Agreement, Daimler represents and
warrants to each of Xxxxxxx and Ford that the following statements
are
true, accurate and complete as at the date of execution and delivery
of
this Agreement and will be true as at the Closing Time as if such
statements were made at each such
time:
|
|
|
(a)
|
Daimler
is a corporation incorporated and validly existing under the laws
of
Germany and is in good standing under the laws of
Germany;
|
|
|
(b)
|
Daimler
has the corporate power and capacity to enter into and perform its
obligations under this Agreement and the Transaction Documents to
which it
is a party;
|
-
30 -
|
|
(c)
|
Daimler
is solvent and has not committed any act of bankruptcy, proposed
a
compromise or arrangement to its creditors generally, had any petition
in
bankruptcy filed against it, made a voluntary assignment in bankruptcy
or
taken any proceedings to be declared bankrupt, to liquidate its assets
or
to be dissolved;
|
|
|
(d)
|
the
execution, delivery and performance by Daimler of this Agreement
and each
of the Transaction Documents to which it is a party has been duly
authorized by all necessary corporate action on its part (other than
the
Daimler Supervisory Board Approval) and no other corporate proceedings
on
the part of Daimler are necessary;
|
|
|
(e)
|
this
Agreement has been and, on the Closing Date, each of the Transaction
Documents to which Daimler is a party will be, duly executed and
delivered
by it;
|
|
|
(f)
|
this
Agreement and the Transaction Documents to which Daimler is a party
will,
upon execution and delivery, constitute legal, valid and binding
obligations of Daimler, enforceable against Daimler in accordance
with
their terms, subject to applicable bankruptcy, insolvency, reorganization
or other laws affecting creditors’ rights generally and specific
performance and injunctive relief only being awarded at the discretion
of
the courts;
|
|
|
(g)
|
Daimler
does not have any knowledge of any fact or circumstance which adversely
affects its ability to complete the transactions contemplated in
this
Agreement and the Transaction Documents to which it is a party and,
as at
the date hereof, there are no actions, claims, suits, judgments,
orders,
investigations or proceedings outstanding or, to the knowledge of
Daimler,
pending or threatened by or against or concerning Daimler that could
reasonably be expected to adversely affect the ability of Daimler
to
perform its obligations pursuant to this Agreement, any of the Transaction
Documents to which it is a party, in any court or before or by any
Governmental Authority, or before or by any
arbitrator;
|
|
|
(h)
|
neither
this Agreement nor any of the Transaction Documents to which Daimler
is a
party contains, or will contain, any untrue, misleading or incomplete
statement of material fact made by
Daimler;
|
|
|
(i)
|
except
as expressly set out in this Agreement, neither the execution nor
the
delivery of this Agreement by Daimler or any Transaction Document
by
Daimler, nor the completion by it of the transactions specifically
referred to in this Agreement or any of the Transaction Documents
to which
it is a party, nor the performance by it of its obligations under,
and its
compliance with, the terms of this Agreement and each of the Transaction
Documents to which it is a party will constitute or result in the
breach
of, or default under, any terms, provisions or conditions of, or
conflict
with, violate or give to any Person any right, after giving of notice
or
lapse of time or otherwise, of acceleration, termination or cancellation
in, or with respect to:
|
-
31 -
|
|
(i)
|
any
constating document of Daimler or any resolution of the Board of
Management of Daimler;
|
|
|
(ii)
|
any
indenture, mortgage, deed of trust, agreement contract, lease, franchise,
certificate, consent (whether written or oral), permit, license,
authority, registration, or other instrument or commitment to which
it is
a party or by which it is bound; or
|
|
|
(iii)
|
any
law, judgment, decree, order, injunction, rule, statute or regulation
of
any court, arbitrator or Governmental Authority by which it is bound
or is
subject;
|
|
|
(j)
|
except
as disclosed in Exhibit T and Exhibit U, no Regulatory Approval
or Consent is required by Daimler
to:
|
|
|
(i)
|
execute
and deliver this Agreement or any of the Transaction Documents to
which it
is a party;
|
|
|
(ii)
|
incur
its obligations pursuant to this Agreement or any of the Transaction
Documents to which it is a party;
|
|
|
(iii)
|
sell,
assign and transfer the Daimler Xxxxxxx Common Shares and the Daimler
DBF
Shares to Xxxxxxx;
|
|
|
(iv)
|
purchase
the Daimler Newco Shares;
|
|
|
(v)
|
duly
perform and observe the terms and provisions of this Agreement and
the
Transaction Documents to which it is a party;
or
|
|
|
(vi)
|
render
this Agreement and the Transaction Documents to which it is a party,
legal, valid, binding and enforceable against
it;
|
|
|
(k)
|
the
Daimler Xxxxxxx Common Shares and the Daimler DBF Shares are owned
by
Daimler or a Daimler Subsidiary as the registered and beneficial
owner
with good title, free and clear of all Encumbrances other than
restrictions on transfer, if any, contained in the articles of Xxxxxxx
or
DBF, in the Fourth Alliance Agreement or noted on the share
certificate;
|
-
32 -
|
|
(l)
|
for
the purposes of the Income Tax Act (Canada) and the 2001 Income
Tax Agreement and final protocol between Canada and Germany, Daimler
is a
resident of Germany and is a non-resident of
Canada;
|
|
|
(m)
|
Daimler
and its Subsidiaries own no Xxxxxxx Common Shares other than the
Daimler
Xxxxxxx Common Shares;
|
|
|
(n)
|
upon
completion of the transactions contemplated by this Agreement, Xxxxxxx
will have good title to the Daimler Xxxxxxx Common Shares and the
Daimler
DBF Shares free and clear of all Encumbrances other
than:
|
|
|
(i)
|
those
restrictions on transfer, if any, contained in the articles of Xxxxxxx;
and
|
|
|
(ii)
|
Encumbrances
granted by Xxxxxxx; and
|
|
|
(o)
|
to
its knowledge, there are no opposition or similar administrative
proceedings outstanding with respect to any of the Intellectual Property
Rights which are to be licensed by Daimler to Xxxxxxx under the Master
License Agreement.
|
Representations
and Warranties of Ford
|
5.3
|
In
order to induce Xxxxxxx and Daimler to enter into and to consummate
the
transactions contemplated by this Agreement, Ford covenants, represents
and warrants to each of Xxxxxxx and Daimler that the following statements
are true, accurate and complete as at the date of execution and delivery
of this Agreement and will be true as at the Closing Time as if such
statements were made at each such
time:
|
|
|
(a)
|
Ford
is a corporation incorporated and validly existing under the laws
of
Delaware and is in good standing under the laws of
Delaware;
|
|
|
(b)
|
Ford
has the corporate power and capacity to enter into and perform its
obligations under this Agreement and the Transaction Documents to
which it
is a party;
|
|
|
(c)
|
Ford
is solvent and has not committed any act of bankruptcy, proposed
a
compromise or arrangement to its creditors generally, had any petition
in
bankruptcy filed against it, made a voluntary assignment in bankruptcy
or
taken any proceedings to be declared bankrupt, to liquidate its assets
or
to be dissolved;
|
-
33 -
|
|
(d)
|
the
execution, delivery and performance by Ford of this Agreement and
each of
the Transaction Documents to which Ford is a party has been duly
authorized by all necessary corporate action on its part, and no
other
corporate proceedings on the part of Ford are
necessary;
|
|
|
(e)
|
this
Agreement has been and, on the Closing Date, each of the Transaction
Documents to which Ford is a party will be, duly executed and delivered
by
it;
|
|
|
(f)
|
this
Agreement and the Transaction Documents to which Ford is a party
will,
upon execution and delivery, constitute legal, valid and binding
obligations of Ford, enforceable against Ford, in accordance with
their
terms, subject to applicable bankruptcy, insolvency, reorganization
or
other laws affecting creditors’ rights generally and specific performance
and injunctive relief only being awarded at the discretion of the
courts;
|
|
|
(g)
|
Ford
does not have any knowledge of any fact or circumstance which adversely
affects its ability to complete the transactions contemplated in
this
Agreement and the Transaction Documents to which it is a party and,
as at
the date hereof, there are no actions, claims, suits, judgments,
orders,
investigations or proceedings outstanding or, to the knowledge of
Ford,
pending or threatened by or against or concerning Ford that could
reasonably be expected to adversely affect the ability of Ford to
perform
its obligations pursuant to this Agreement, any of the Transaction
Documents to which it is a party, in any court or before or by any
Governmental Authority, or before or by any
arbitrator;
|
|
|
(h)
|
neither
this Agreement nor any of the Transaction Documents to which Ford
is a
party contains, or will contain, any untrue, misleading or incomplete
statement of material fact made by
Ford;
|
|
|
(i)
|
except
as expressly set out in this Agreement, neither the execution nor
the
delivery by Ford of this Agreement or any Transaction Document, nor
the
completion by it of the transactions specifically referred to in
this
Agreement or any of the Transaction Documents to which it is a party,
nor
the performance by it of its obligations under, and its compliance
with,
the terms of this Agreement and each of the Transaction Documents
to which
it is a party will constitute or result in the breach of, or default
under, any terms, provisions or conditions of, or conflict with,
violate
or give to any Person any right, after giving of notice or lapse
of time
or otherwise, of acceleration, termination or cancellation in, or
with
respect to:
|
-
34 -
|
|
(i)
|
any
constating document of Ford or any resolution of the directors of
Ford;
|
|
|
(ii)
|
any
indenture, mortgage, deed of trust, agreement contract, lease, franchise,
certificate, consent (whether written or oral), permit, license,
authority, registration, or other instrument or commitment to which
it is
a party or by which it is bound; or
|
|
|
(iii)
|
any
law, judgment, decree, order, injunction, rule, statute or regulation
of
any court, arbitrator or Governmental Authority by which it is bound
or is
subject;
|
|
|
(j)
|
except
as disclosed in Exhibit T and Exhibit U, no Regulatory Approval
or Consent is required by Ford to:
|
|
|
(i)
|
execute
and deliver this Agreement or any of the Transaction Documents to
which it
is a party;
|
|
|
(ii)
|
incur
its obligations pursuant to this Agreement or any of the Transaction
Documents to which it is a party;
|
|
|
(iii)
|
sell,
assign and transfer the Ford Xxxxxxx Common Shares and the Ford DBF
Shares
to Xxxxxxx;
|
|
|
(iv)
|
purchase
the Ford Newco Shares;
|
|
|
(v)
|
duly
perform and observe the terms and provisions of this Agreement and
the
Transaction Documents to which it is a party;
or
|
|
|
(vi)
|
render
this Agreement and the Transaction Documents to which it is a party,
legal, valid, binding and enforceable against
it;
|
|
|
(k)
|
the
Ford Xxxxxxx Common Shares and the Ford DBF Shares are owned by Ford
or a
Ford Subsidiary as the registered and beneficial owner with good
title,
free and clear of all Encumbrances other than restrictions on transfer,
if
any, contained in the articles of Xxxxxxx or DBF, in the Fourth Alliance
Agreement or noted on the share
certificate;
|
-
35 -
|
|
(l)
|
for
the purposes of the Income Tax Act (Canada) and the Canada-United
States Tax Convention (1980), Ford is a resident of the United States
and
is a non-resident of Canada;
|
|
|
(m)
|
Ford
and its Subsidiaries own no Xxxxxxx Common Shares other than the
Ford
Xxxxxxx Common Shares;
|
|
|
(n)
|
upon
completion of the transactions contemplated by this Agreement, Xxxxxxx
will have good title to the Ford Xxxxxxx Common Shares and the Ford
DBF
Shares free and clear of all Encumbrances other
than:
|
|
|
(i)
|
those
restrictions on transfer, if any, contained in the articles of Xxxxxxx;
and
|
|
|
(ii)
|
Encumbrances
granted by Xxxxxxx; and
|
|
|
(o)
|
to
its knowledge, there are no opposition or similar administrative
proceedings outstanding with respect to any of the Intellectual Property
Rights which are to be licensed by Ford to Xxxxxxx under the Master
License Agreement.
|
Covenants
of Xxxxxxx
|
5.4
|
Xxxxxxx
hereby covenants and agrees with Daimler and Ford
that:
|
|
|
(a)
|
at
or before the time required for delivery, Xxxxxxx will duly execute
and
deliver, or arrange to have duly executed and delivered, all documents
and
instruments required to be delivered by Xxxxxxx pursuant to this
Agreement;
|
|
|
(b)
|
as
soon as reasonably practicable, Xxxxxxx will call and hold the Xxxxxxx
Meeting;
|
|
|
(c)
|
Xxxxxxx
will, in a timely and expeditious manner, prepare and file the Xxxxxxx
Circular in all jurisdictions where required, and mail the Xxxxxxx
Circular to the Xxxxxxx Shareholders, all in accordance with applicable
law;
|
|
|
(d)
|
Xxxxxxx
will not file the Xxxxxxx Articles of Amendment with the Director
under
the CBCA until after the transfer to Xxxxxxx of the Daimler DBF Shares
and
the Ford DBF Shares on the Closing
Date;
|
|
|
(e)
|
in
respect of the Designated
Employees:
|
-
36 -
|
|
(i)
|
as
soon as practical following execution of this Agreement, Xxxxxxx
will give
notice substantially in the form included in Exhibit M to each
of the Designated Employees that his or her employment is to be
transferred to Newco, will cause Newco to make an offer of continuing
employment effective upon and subject to the Closing, substantially
in the
form included in Exhibit M (but revised, if necessary, to
reflect any different terms of employment of any particular Designated
Employee), to each of the Designated Employees, and will use all
reasonable efforts to persuade the Designated Employees to accept
such
offer;
|
|
|
(ii)
|
prior
to the Closing Time, Xxxxxxx shall notify each Non-Accepting Employee
that
Xxxxxxx is electing to treat his/her failure to accept Newco’s offer of
continuing employment as a repudiation of such employee’s employment
relationship with Xxxxxxx with immediate
effect;
|
|
|
(f)
|
during
the Interim Period, Xxxxxxx will:
|
|
|
(i)
|
permit
Daimler and Ford and their respective officers, employees and
representatives, during normal business hours, to be given reasonable
access to the Xxxxxxx Automotive Business and all working papers,
books
and records relating to the Xxxxxxx Automotive Business, the Xxxxxxx
Automotive Assets and the Designated Employees, provided that no
access to
Know-How relating to manufacturing will be provided in addition to
that to
which they were otherwise already entitled immediately prior to the
Interim Period, and will co-operate in every way with Daimler and
Ford and
their respective officers, employees and representatives to complete
a
full and thorough examination of the Xxxxxxx Automotive Business,
working
papers, books and records relating to the Xxxxxxx Automotive Business,
the
Xxxxxxx Automotive Assets and the Designated Employees before the
Closing
Date; provided that any disclosure of personal information will be
subject
to the requirements of applicable law, including the obligation of
Daimler
and Ford to use or disclose such personal information only for purposes
related to the transactions contemplated
herein;
|
|
|
(ii)
|
use
all reasonable efforts to obtain the Regulatory Approvals and Consents
required to be obtained by it for the completion of the transactions
contemplated in this Agreement;
|
-
37 -
|
|
(iii)
|
to
the extent permitted by law and except as permitted or required by
this
Agreement or consented to by Daimler and
Ford:
|
|
|
(A)
|
conduct
the Xxxxxxx Automotive Business in the ordinary and normal course
of
business consistent with past
practice;
|
|
|
(B)
|
maintain
and preserve the existing goodwill and business relationships of
the
Xxxxxxx Automotive Business in the ordinary and normal course of
business
consistent with past practice;
|
|
|
(C)
|
not
abandon any of the Intellectual Property Rights owned or controlled
by it
and pay all fees for registration, renewal or examination of such
Intellectual Property Rights fully and in time where
due;
|
|
|
(D)
|
maintain
in force the insurance relating to the Xxxxxxx Automotive Assets
and the
Xxxxxxx Automotive Business in effect on the date of this
Agreement,
|
|
|
(E)
|
not
sell, lease, pledge or otherwise dispose of or encumber any of the
Xxxxxxx
Automotive Assets or enter into any agreement or arrangement giving
any
Person an option or a right, absolute or contingent, to acquire,
lease,
pledge or obtain possession of, or which would permit any Person
pursuant
to such agreement or arrangement, to negatively affect the value
of, any
of the Xxxxxxx Automotive Assets that are material, individually
or in the
aggregate, to the Xxxxxxx Automotive Business provided that Xxxxxxx
may:
|
|
|
(1)
|
sell
or lease, and agree or arrange to do so, inventory or prototypes
in the
ordinary and normal course of business consistent with past
practice;
|
|
|
(2)
|
sell
or otherwise dispose of, and agree or arrange to do so, equipment
that is
replaced before the Closing Date with similar equipment in the ordinary
and normal course of business consistent with past practice;
and
|
-
38 -
|
|
(3)
|
sell
or lease equipment that has a replacement value of less than US$30,000
provided that the replacement value of all such equipment sold or
leased
under this section in aggregate must not exceed
US$150,000;
|
|
|
(F)
|
except
in the ordinary course of business, not enter into, modify or terminate
any contract or agreement with any supplier, manufacturer or customer
for
the purchase or sale of goods or services in respect of the Xxxxxxx
Automotive Business, except for contracts under which Xxxxxxx is
required
to pay or supply goods or services for a term of not more than 3
months
after the Closing Date and with a value of not more than US$100,000
within
such 3 month period;
|
|
|
(G)
|
not
pay, discharge, settle or satisfy any material claims, liabilities
or
obligations (whether absolute, accrued, asserted or unasserted, contingent
or otherwise) relating to the Xxxxxxx Automotive Business, other
than in
the ordinary and normal course of business consistent with past practice
or waive, release, grant or transfer any right of material value
relating
to the Xxxxxxx Automotive Business, other than in the ordinary and
normal
course of business consistent with past practice, or waive any material
benefits of, or agree to modify in any adverse respect, or fail to
enforce, or consent to any matter with respect to which consent is
required under, any confidentiality, standstill or similar agreement
to
which Xxxxxxx is a party in respect of the Xxxxxxx Automotive Business,
except in the ordinary and normal course of business consistent with
past
practice;
|
|
|
(H)
|
use
reasonable efforts in the ordinary and normal course of business
consistent with past practice to keep available the services of the
Designated Employees;
|
|
|
(I)
|
not
grant any Designated Employee any increase in compensation, pay,
fringe
benefits or other compensation or pay or agree to pay any pension,
bonus,
share of profits, or other benefit, compensation or payment, or accelerate
the vesting or payment of any benefit or compensation, except in
the
ordinary and normal course of business consistent with past practice
and
except for the acceleration of vesting of all equity-based compensation
held by the Designated Employees;
|
-
39 -
|
|
(iv)
|
not
amend the notice of articles or Articles of Newco without the consent
of
Daimler and Ford;
|
|
|
(v)
|
not
permit Newco to acquire any asset, incur any liability or assume
any
obligation, other than as contemplated by the Transaction
Documents;
|
|
|
(vi)
|
use
its best efforts to settle prior to the Closing Date the form of
the Lease
and the Service Agreements which, in addition to the terms set out
in the
Exhibits hereto, shall have terms and conditions which are customary
in
agreements of similar type and subject matter, provided that if any
such
agreement is not settled prior to the Closing Date, the Parties will
not
delay Closing but instead:
|
|
|
(A)
|
they
will follow the dispute resolution procedures set out in Part
9 to settle the terms and conditions which are customary in
agreements of similar type and subject matter and immediately thereafter
execute and deliver, or cause Newco to execute and deliver, the resulting
settled agreement; and
|
|
|
(B)
|
pending
resolution of the terms and conditions of such agreements, Xxxxxxx
will
provide Newco with the goods and services contemplated by such agreements
on the terms specified in the Exhibits
hereto;
|
|
|
(vii)
|
use
its best efforts to settle on or prior to November 23, 2007 the Holding
Structure on terms acceptable to it, acting
reasonably;
|
|
|
(viii)
|
not
enter into any transaction or perform any act which might interfere
with
the successful completion of the transactions contemplated in this
Agreement or which would render inaccurate any of its representations
and
warranties set forth in this Agreement if such representations and
warranties were made at a date subsequent to such transaction or
act;
|
|
|
(ix)
|
promptly
notify Daimler and Ford in writing as soon as it acquires knowledge
of
facts which could reasonably be expected to result
in:
|
-
40 -
|
|
(A)
|
any
representation or warranty made by Xxxxxxx being untrue, inaccurate
or
incomplete on or before the Closing
Date;
|
|
|
(B)
|
the
non-fulfilment of any of Xxxxxxx’x covenants set out in the Agreement;
or
|
|
|
(C)
|
the
occurrence of any circumstance which materially adversely affects,
or with
the giving of notice or lapse of time or otherwise could materially
adversely affect, Xxxxxxx’x ability to complete the transactions
contemplated in this Agreement;
|
|
|
(g)
|
Xxxxxxx
will pay when due all amounts owing to the Transferred Employees,
or owing
to Governmental Authorities in respect of Xxxxxxx’x employment of the
Transferred Employees, in respect of their employment with Xxxxxxx
up to
the Closing Date and will indemnify Newco in respect of any such
amounts;
|
|
|
(h)
|
Xxxxxxx
will pay when due all amounts owing to the Non-Accepting Employees
and any
employees of Xxxxxxx that are not Designated Employees, including
amounts
owing in respect of their employment with Xxxxxxx or the termination
of
their employment with Xxxxxxx, and will indemnify Newco in respect
of any
such amounts; and
|
|
|
(i)
|
after
Closing, Xxxxxxx will, and will cause its Subsidiaries to, take all
such
actions, execute all such agreements, transfers, assignments, licenses
and
other documents and do all such further things as may be necessary
to give
effect to the transactions contemplated in this
Agreement.
|
Covenants
of Daimler and Ford
|
5.5
|
Each
of Daimler and Ford hereby covenants and agrees with each other and
Xxxxxxx that:
|
|
|
(a)
|
in
the case of Daimler, it will seek the Daimler Supervisory Board Approval
as soon as reasonably practical;
|
|
|
(b)
|
at
or before the time required for delivery, it will duly execute and
deliver, or arrange to have duly executed and delivered, all documents
and
instruments required to be delivered by it pursuant to this
Agreement;
|
-
41 -
|
|
(c)
|
at
the Xxxxxxx Meeting, it will vote all the Xxxxxxx Common Shares owned
directly or through its Subsidiaries, in favour of the Special Resolution
and, if so requested by Xxxxxxx, in favour of the Ordinary
Resolution;
|
|
|
(d)
|
prior
to the date of the Xxxxxxx Meeting it will execute a consent resolution
approve the Special Resolution as a holder of DBF Shares and will,
and
will cause its Subsidiaries, to grant any Consents required of it
or
them;
|
|
|
(e)
|
it
will not use or disclose any personal information disclosed to it
by
Xxxxxxx under §5.4(f)(i) except for purposes related to the transactions
contemplated herein;
|
|
|
(f)
|
during
the Interim Period, it will:
|
|
|
(i)
|
use
all reasonable efforts to obtain the Regulatory Approvals and Consents
required to be obtained by it for the completion of the transactions
contemplated in this Agreement;
|
|
|
(ii)
|
not
abandon any of the Intellectual Property Rights owned or controlled
by it
relating to Fuel Cells and pay all fees for registration, renewal
or
examination of such Intellectual Property Rights fully and in time
where
due;
|
|
|
(iii)
|
use
its best efforts, in conjunction with Xxxxxxx, to design compensation
schemes for the Transferred Employees to be implemented by Newco
on the
Closing Date, under which the aggregate value of compensation provided
to
the Transferred Employees on the Closing Date will be substantially
equivalent to the aggregate value of compensation provided to the
Transferred Employees immediately before the Closing Date. In
particular, the compensation schemes will have the following
characteristics:
|
|
|
(A)
|
the
annual salary of the Transferred Employees on the Closing Date will
be the
same as immediately before the Closing
Date;
|
|
|
(B)
|
the
bonus structure for the Transferred Employees after the Closing Date
will
be substantially equivalent as immediately before the Closing Date;
and
|
|
|
(C)
|
the
benefit coverage provided to the Transferred Employees on the Closing
Date
will be the same as immediately before the Closing Date;
and
|
-
42 -
|
|
(D)
|
as
Newco will not be providing the Transferred Employees with shares,
share
options, restricted share units, deferred share units or any other
form of
equity based compensation, a long-term incentive program having
substantially equivalent economic value as available to the Transferred
Employees immediately before the Closing
Date;
|
|
|
(iv)
|
use
all reasonable efforts to persuade the Designated Employees to accept
the
offers of continuing employment made to them by
Newco;
|
|
|
(v)
|
use
its best efforts to settle prior to the Closing Date the form of
the Lease
and the Service Agreements which, in addition to the terms set out
in the
Exhibits hereto, shall have terms and conditions which are customary
in
agreements of similar type and subject matter, provided that if any
such
agreement is not settled prior to the Closing Date, the Parties will
not
delay Closing but instead:
|
|
|
(A)
|
they
will follow the dispute resolution procedures set out in Part
9 to settle the terms and conditions which are customary in
agreements of similar type and subject matter and immediately thereafter
execute and deliver, or cause Newco to execute and deliver, the resulting
settled agreement; and
|
|
|
(B)
|
pending
resolution of the terms and conditions of such agreements, Newco
will
obtain from Xxxxxxx the goods and services contemplated by such agreements
on the terms specified in the Exhibits
hereto;
|
|
|
(vi)
|
use
its best efforts to settle on or prior to November 23, 2007 the Holding
Structure on terms acceptable to it, acting
reasonably;
|
|
|
(vii)
|
not,
directly or indirectly though a Subsidiary, acquire or offer to acquire
any Xxxxxxx Common Shares;
|
|
|
(viii)
|
not
enter into any transaction or perform any act which might interfere
with
the successful completion of the transactions contemplated in this
Agreement or which would render inaccurate any of its representations
and
warranties set forth in this Agreement if such representations and
warranties were made at a date subsequent to such transaction or
act;
|
-
43 -
|
|
(ix)
|
promptly
notify Xxxxxxx in writing as soon as it acquires knowledge of facts
which
could reasonably be expected to result
in:
|
|
|
(A)
|
any
representation or warranty made by it being untrue, inaccurate or
incomplete on or before the Closing
Date;
|
|
|
(B)
|
the
non-fulfilment of any of its covenants set out in the Agreement;
or
|
|
|
(C)
|
the
occurrence of any circumstance which materially adversely affects,
or with
the giving of notice or lapse of time or otherwise could materially
adversely affect, its ability to complete the transactions contemplated
in
this Agreement; and
|
|
|
(g)
|
after
Closing it will cause Newco, and will indemnify Xxxxxxx with respect
to
any failure by Newco, to:
|
|
|
(i)
|
perform,
satisfy and discharge the Xxxxxxx Automotive Liabilities when due;
and
|
|
|
(ii)
|
pay
when due all amounts owing to the Transferred Employees in respect
of
their employment with Newco from and after the Closing Date;
and
|
|
|
(h)
|
after
Closing, it will, and will cause Newco and its Subsidiaries to, take
all
such actions, execute all such documents and do such further things
as may
be necessary to give effect to the transactions contemplated in this
Agreement.
|
Identification
of Unclassified Xxxxxxx IPRs
|
5.6
|
If:
|
|
|
(a)
|
in
preparing this Agreement, Xxxxxxx fails to identify any existing
Intellectual Property Rights of Xxxxxxx and its Subsidiaries;
or
|
|
|
(b)
|
any
Intellectual Property Rights of Xxxxxxx and its Subsidiaries comes
into
existence during the Interim
Period;
|
(collectively
(a) and (b) above, the "Unclassified Xxxxxxx IPRs"), the Party
that identifies any Unclassified Xxxxxxx IPRs will give notice to the other
Parties of such Unclassified Xxxxxxx IPRs and will, in a manner consistent
with
the approach reflected in the manner in which Intellectual Property Rights
have
been classified as Automotive IPR, Fundamental IPR or Non-Automotive IPR,
attempt to reach unanimous agreement with the other Parties in classifying
the
Unclassified Xxxxxxx IPRs. If the Parties are unable to reach
unanimous agreement with respect to the proper classification of any
Unclassified Xxxxxxx IPRs within 30 days of the identification by any of the
Parties of any Unclassified Xxxxxxx IPRs, the classification of such
Unclassified Xxxxxxx IPRs will be finally determined under the procedures set
out in 0. In order to give effect to
this provision, Xxxxxxx covenants to Daimler and Ford that it will disclose
to
each of them all Unclassified Xxxxxxx IPRs of which it becomes aware, forthwith
upon it so becoming aware, together with Xxxxxxx’x recommendation of how such
Unclassified Xxxxxxx IPRs should be classified.
-
44 -
Procedure
for Unclassified Xxxxxxx IPRs
|
5.7
|
If
any Unclassified Xxxxxxx IPRs are identified and classified with
the
unanimous agreement of the Parties:
|
|
|
(a)
|
prior
to the Closing Date, the Exhibits hereto and the schedules to the
Transaction Documents will be updated to record the Unclassified
Xxxxxxx
IPRs thereon in accordance with the agreed classification as Automotive
IPR, Fundamental IPR or Non-Automotive IPR;
or
|
|
|
(b)
|
following
the Closing Date:
|
|
|
(i)
|
Xxxxxxx
will transfer jointly to Daimler and Ford (with any transfer costs
to be
borne by Daimler and Ford) any Unclassified Xxxxxxx IPRs held by
Xxxxxxx
or its Subsidiaries which are classified as Automotive IPR and Daimler
and
Ford will be deemed to have licensed such IPR to Xxxxxxx as part
of the
OEM License; and
|
|
|
(ii)
|
any
Unclassified Xxxxxxx IPRs held by Xxxxxxx or its Subsidiaries which
are
classified as Fundamental IPR or Non-Automotive IPR will be deemed
to have
been licensed to Daimler and Ford as part of the Xxxxxxx
License.
|
Transfer
of Overlooked Assets, Access to Other Assets
|
5.8
|
If,
notwithstanding Xxxxxxx'x intention to transfer to Newco all of the
inventory (warranty spares and in process test articles) relating
to the
Automotive Contracts, following Closing Xxxxxxx has mistakenly or
inadventantly not included in Tangible Automotive Assets transferred
at
Closing any of such inventory, it will convey to Newco such inventory
for
no additional consideration. In respect of any machinery,
equipment or other tangible assets retained by Xxxxxxx to which Newco
desires access to carry on its business, Xxxxxxx will negotiate in
good
faith access for Newco to such machinery, equipment or other tangible
assets either as part of the Services Agreements or a separate
arrangement, having regard to:
|
-
45 -
|
|
(a)
|
Xxxxxxx’x
first priority (as owner) to use such machinery or equipment;
and
|
|
|
(b)
|
the
arm’s length fair market value of the access requested by
Newco.
|
Post
Closing Provision of Products
|
5.9
|
Xxxxxxx
agrees to provide products following the Closing Date to Daimler,
Ford and
their subsidiaries as follows:
|
|
|
(a)
|
HyWay
2/3 and 4 Pre Job #1 Prototypes for Daimler, Ford, NuCellSys and
Newco:
|
|
|
(i)
|
Pre
Job #1 Prototypes are defined as fuel cell stacks produced under
Full
Prototype Release as defined in Xxxxxxx'x TPPM process. Full Prototype
Release comprises both Prototype Design Release and Prototype Process
Release. All other Pre Job 1 products are Experimental Stacks
and are dealt with under the Services
Agreements.
|
|
|
(ii)
|
Scope
of Supply: Xxxxxxx’x scope of supply shall be manufacturing and
factory testing for Pre Job #1 Prototypes in accordance with the
specifications drawings and designs provided, approved or adopted
by the
OEM. Xxxxxxx’x scope of supply shall not include additional
aspects of the Pre Job #1 Prototypes, including the specification
of the
design, performance, materials or use of the Pre Job #1
Prototypes.
|
|
|
(iii)
|
Stack
price [commercially sensitive information
redacted].
|
|
|
(iv)
|
Total
part costs [commercially sensitive information
redacted].
|
|
|
(v)
|
Terms
& Conditions according to Daimlers “Terms and Conditions of Purchase
for Development Services” shall apply.
Exceptions:
|
-
46 -
Section
4: Rights in respect of the Development Results. The ownership and
rights with respect to IPR will be governed by the Restructuring Agreement
and
its schedules expanded by the following:
Xxxxxxx
will own all the IPR developed by Xxxxxxx in providing the Pre Job #1 Prototypes
within the scope of the HyWay 2/3 program except for any such IPR consisting
of
improvements to Fundamental IPR developed, discovered or acquired by Xxxxxxx
prior to the occurrence of the Triggering Event, which will be owned as
contemplated in the Holding Structure. Daimler and Ford will jointly
own the IPR developed by Xxxxxxx in providing the ME&D services within the
scope of the HyWay 4 and subsequent programs; and Daimler and Ford will each
grant to Xxxxxxx a perpetual, exclusive, royalty-free, sublicensable license
to
such IPR for use in Non-Automotive Applications.
|
|
(b)
|
HyWay
2/3 Post Job #1 Stacks for Daimler:
|
|
|
(i)
|
Scope
of Supply: Xxxxxxx’x scope of supply shall be manufacturing and
factory testing for Job #1 Stacks in accordance with specifications
drawings and designs provided, approved or adopted by
Daimler. Xxxxxxx’x scope of supply shall not include additional
aspects of the Job #1 Stacks, including the specification of the
design,
performance, materials or use of the Job #1
Stacks.
|
|
|
(ii)
|
Stack
price [commercially sensitive information
redacted].
|
|
|
(iii)
|
Total
part costs [commercially sensitive information
redacted].
|
|
|
(iv)
|
Terms
& Conditions according to Daimlers “General Terms & Conditions for
the Purchase of Production Material and Spare Parts which are Destined
for
the Automobile” and Mercedes Benz Special Terms apply.
Exceptions:
|
MB
Special Terms: Service support and spare parts will be available for
at least five years after delivery date of the last HyWay 2/3 Post Job #1 stack
unit. Pricing must be finalized between X. Xxxx /M
Künstler.
-
47 -
|
|
(c)
|
HyWay
2/3 Post Job #1 Stacks for Ford:
|
|
|
(i)
|
Scope
of Supply: Xxxxxxx’x scope of supply shall be manufacturing and
factory testing for Job #1 Stacks in accordance with specifications
drawings and designs provided, approved or adopted by
Ford. Xxxxxxx’x scope of supply shall not include additional
aspects of the Job #1 Stacks, including the specification of the
design,
performance, materials or use of the Job #1
Stacks.
|
|
|
(ii)
|
Stack
price [commercially sensitive information
redacted].
|
|
|
(iii)
|
Total
part costs [commercially sensitive information
redacted].
|
|
|
(iv)
|
Purchases
by Ford will be made on the basis of “Ford’s Global Terms and Conditions,
the most recent version of which is dated January 1, 2004” as may be
amended from time to time, and subject to any exceptions or amendments
as
agreed to by Ford and Xxxxxxx.
|
|
|
(d)
|
Product
Purchase
|
|
|
(i)
|
Upon
the request of Daimler, Ford, NuCellSys or Newco as the case may
be, (the
“OEM”), Xxxxxxx will sell to the OEM the number of the Products listed
above as requested by the OEM and subject to capacity constraints
will use
commercially reasonable efforts to quote and supply other Products
as
requested by the OEMs.
|
|
|
(ii)
|
Each
OEM will purchase the Products (as described under §5.9(d)(vi) below)
under its standard respective terms and conditions for the purchase
of
production goods. Purchases by Ford will be made on the basis
of “Ford’s Global Terms and Conditions”, the most recent version of which
is dated January 1, 2004, as may be amended from time to time and
purchases by Daimler of experimental stacks and pre Job #1 prototypes
will
be made on the basis of Daimler’s “Terms and Conditions of Purchase for
Development Services” and purchases by Daimler of Post Job #1 stacks will
be made on the basis of Daimler’s “General Terms and Conditions for the
Purchase of Production Material and Spare Parts which are destined
for the
Automobile”, the most recent version of which is dated January 1st, 2004
and the “Mercedes-Benz Special Terms (Version 2007)” as may be amended
from time to time;
|
-
48 -
|
|
(iii)
|
The
prices for the Products purchased will be negotiated by the purchasing
OEM
and Xxxxxxx.
|
|
|
(iv)
|
For
Products described in §5.9(a),(b) and (c) the costs for the Product
will be detailed in the Price Break Down template adopted for HyWay
2/3
purposes as provided by Daimler.
|
|
|
(v)
|
Nothing
contained in this Agreement requires an OEM to purchase any
Product.
|
|
|
(vi)
|
Upon
the request of an OEM, Xxxxxxx will provide such OEM with full
transparency with regard to the price structure of a Product. For
the
avoidance of doubt, the term “Product” includes the final above Product
and any prototypes, samples, or developmental or testing versions
thereof.
|
|
|
(vii)
|
Tier
II/III Co-Management: Xxxxxxx shall disclose Tier II/III suppliers
to the
OEMs. The OEMs may, with the prior written consent of Xxxxxxx, such
consent not to be unreasonably withheld, evaluate and validate Xxxxxxx'x
internal Tier II/III supplier
processes.
|
Survival
of Covenants, Representations and Warranties
|
5.10
|
The
representations and warranties of Daimler, Ford and Xxxxxxx contained
in
this Agreement or in certificates or documents delivered pursuant
to or in
connection with the transactions contemplated by this Agreement,
will
survive the Closing and, notwithstanding the completion of the
transactions contemplated in this Agreement, will continue in full
force
and effect for 18 months following the Closing Time, except for the
representations and warranties made in §5.1(l), §5.1(m), §5.1(n), §5.1(w),
§5.2(k), §5.2(l), §5.3(k) and §5.3(l) and the respective covenants of the
Parties, all of which shall continue in full force and effect following
the Closing without time
limitation.
|
PART
6
CONDITIONS
Conditions
for the Benefit of Xxxxxxx
|
6.1
|
The
obligation of Xxxxxxx to complete the transactions contemplated in
this
Agreement at the Closing is subject to the fulfilment, to the reasonable
satisfaction of Xxxxxxx, on or before the Closing Date, of the following
conditions:
|
-
49 -
|
|
(a)
|
the
representations and warranties of Daimler and Ford in this Agreement
and
in any agreement, certificate or document delivered pursuant to the
provisions of this Agreement or in connection with the transactions
contemplated in this Agreement, will be true, complete and correct
in all
material respects, as of the date hereof and as of the Closing
Date;
|
|
|
(b)
|
all
covenants and agreements contained in this Agreement to be performed
by or
complied with by Daimler or Ford on or before the Closing Date will
have
been performed or complied with in all material
respects;
|
|
|
(c)
|
all
documents required to be filed before Closing with the applicable
Governmental Authorities or stock exchanges by Daimler or Ford, to
give
effect to the transactions contemplated by this Agreement, will have
been
filed; and
|
|
|
(d)
|
other
than as contemplated in §5.4(f)(vi) and §5.5(f)(iv), all documents and
other items required under Part 8 to be delivered to it shall
have been executed by the parties thereto and be available for delivery
to
it upon occurrence of the Closing.
|
Waiver
of Conditions by Xxxxxxx
|
6.2
|
The
conditions set forth in §6.1 are for the exclusive benefit of Xxxxxxx and
may be waived by Xxxxxxx in writing in whole or in part at or before
the
Closing Time.
|
Conditions
for the Benefit of Daimler
|
6.3
|
The
obligation of Daimler to complete the transactions contemplated in
this
Agreement at the Closing is subject to the fulfilment, to the reasonable
satisfaction of Daimler, on or before the Closing Date, of the following
conditions:
|
|
|
(a)
|
the
representations and warranties of Xxxxxxx and Ford in this Agreement
and
in any agreement, certificate or document delivered pursuant to the
provisions of this Agreement or in connection with the transactions
contemplated in this Agreement, will be true, complete and correct
in all
material respects, as of the date hereof and as of the Closing
Date;
|
-
50 -
|
|
(b)
|
all
covenants and agreements contained in this Agreement to be performed
or
complied with by Xxxxxxx or Ford on or before the Closing Date will
have
been performed or complied with in all material
respects;
|
|
|
(c)
|
all
documents required to be filed before Closing with the applicable
Governmental Authorities or stock exchanges by Xxxxxxx or Ford to
give
effect to the transactions contemplated by this Agreement will have
been
filed; and
|
|
|
(d)
|
all
documents and other items required under Part 8 to be delivered
to it shall have been executed by the parties thereto and be available
for
delivery to it upon occurrence of the
Closing.
|
Waiver
of Conditions by Daimler
|
6.4
|
The
conditions set forth in §6.3 are for the exclusive benefit of Daimler and
may be waived by Daimler in whole or in part at or before the Closing
Time.
|
Conditions
for the Benefit of Ford
|
6.5
|
The
obligation of Ford to complete the transactions contemplated this
Agreement at the Closing is subject to the fulfilment, to the reasonable
satisfaction of Ford, on or before the Closing Date, of the following
conditions:
|
|
|
(a)
|
the
representations and warranties of Xxxxxxx and Daimler in this Agreement
and in any agreement, certificate or document delivered pursuant
to the
provisions of this Agreement or in connection with the transactions
contemplated in this Agreement, will be true complete and correct
in all
material respects, as of the date hereof and as of the Closing
Date;
|
|
|
(b)
|
all
covenants and agreements contained in this Agreement to be performed
by or
complied with by Xxxxxxx or Daimler on or before the Closing Date
will
have been performed or complied with in all material
respects;
|
|
|
(c)
|
all
documents required to be filed before Closing with the applicable
Governmental Authorities or stock exchanges by Xxxxxxx or Daimler,
to give
effect to the transactions contemplated by this Agreement, will have
been
filed; and
|
-
51 -
|
|
(d)
|
all
documents and other items required under Part 8 to be delivered
to it shall have been executed by the parties thereto and be available
for
delivery to it upon occurrence of the
Closing.
|
Waiver
of Conditions by Ford
|
6.6
|
The
conditions set forth in §6.5 are for the exclusive benefit of Ford and may
be waived by Ford in writing in whole or in part at or before the
Closing
Time.
|
Conditions
for the Benefit of all of the Parties
|
6.7
|
The
respective obligations of the Parties to be performed pursuant to
this
Agreement at the Closing Time are subject to the fulfilment, on or
before
the Closing Time, of the conditions
that:
|
|
|
(a)
|
the
Regulatory Approvals listed in Exhibit T will have been
obtained;
|
|
|
(b)
|
the
acquisition and disposition of the Xxxxxxx Common Shares and the
Newco
Common Shares in accordance with this Agreement are not prohibited
by any
law, statute, rule or regulation of any jurisdiction to which Xxxxxxx,
Newco, Daimler or Ford is subject and will be exempt from the
registration, prospectus, tender offer, take-over bid and issuer
bid
requirements of all applicable securities laws in the United States
and
Canada;
|
|
|
(c)
|
no
act, action, suit or proceeding will have been taken before or by
any
Governmental Authority or any other Person (including, without limitation,
any individual, corporation, firm, group or other entity) in Canada
or
elsewhere, whether or not having the force of law, and no law, regulation
or policy will have been proposed, enacted, promulgated or
applied:
|
|
|
(i)
|
to
enjoin, prohibit or impose material limitations or conditions on
any Party
with respect to the transactions contemplated by this Agreement;
or
|
|
|
(ii)
|
which,
if the transactions contemplated by this Agreement were completed,
would
materially and adversely affect any
Party;
|
|
|
(d)
|
the
Xxxxxxx Shareholders have passed the Ordinary Resolution and the
Special
Resolution by such majorities as are necessary to enable them to
be
effective under, and satisfy all of the requirements of, applicable
corporate and securities laws; and
|
-
52 -
|
|
(e)
|
the
Daimler Supervisory Board Approval will have been
obtained.
|
PART
7
INDEMNITIES
Notice
of Breach
|
7.1
|
Each
Party will, as soon as it has determined that it has actual (and
not
attributed or assumed) knowledge of facts or circumstances which
give rise
to a claim which is or may become an Indemnity Claim under this Agreement
against another Party, promptly notify each other Party of such facts
or
circumstances.
|
Indemnity
to Xxxxxxx by Daimler
|
7.2
|
Subject
to the provisions of this Part 7, Daimler hereby agrees to indemnify,
keep
indemnified and hold Xxxxxxx and each of its directors, officers,
employees agents and representatives harmless from and against all
Indemnity Claims, costs and expenses (including reasonable legal
fees and
disbursements) incurred or suffered by Xxxxxxx and each of its directors,
officers, employees agents and representatives in any manner arising
out
of, in connection with, with respect to or relating to any representation
or warranty of Daimler set forth in this Agreement, being untrue
or
incorrect or the failure of Daimler to observe or perform any of
its
obligations or covenants pursuant to this
Agreement.
|
Indemnity
to Xxxxxxx by Ford
|
7.3
|
Subject
to the provisions of this Part 7, Ford hereby agrees to indemnify,
keep
indemnified and hold Xxxxxxx and each of its directors, officers,
employees agents and representatives harmless from and against all
Indemnity Claims, costs and expenses (including reasonable legal
fees and
disbursements) incurred or suffered by Xxxxxxx and each of its directors,
officers, employees agents and representatives in any manner arising
out
of, in connection with, with respect to or relating to any representation
or warranty of Ford set forth in this Agreement, being untrue or
incorrect
or the failure of Ford to observe or perform any of its obligations
or
covenants pursuant to this
Agreement.
|
Indemnity
to Daimler by Xxxxxxx
|
7.4
|
Subject
to the provisions of this Part 7, Xxxxxxx hereby agrees to indemnify,
keep
indemnified and hold Daimler and each of its directors, officers,
employees agents and representatives harmless from and against all
Indemnity Claims, costs and expenses (including reasonable legal
fees and
disbursements) incurred or suffered by Daimler and each of its directors,
officers, employees agents and representatives in any manner arising
out
of, in connection with, with respect to or relating to any representation
or warranty of Xxxxxxx set forth in this Agreement being untrue or
incorrect or the failure of Xxxxxxx to observe or perform any of
its
obligations or covenants pursuant to this
Agreement.
|
-
53 -
Indemnity
to Ford by Xxxxxxx
|
7.5
|
Subject
to the provisions of this Part 7, Xxxxxxx hereby agrees to indemnify,
keep
indemnified and hold Ford and each of its directors, officers, employees
agents and representatives harmless from and against all Indemnity
Claims,
costs and expenses (including reasonable legal fees and disbursements)
incurred or suffered by Ford and each of its directors, officers,
employees agents and representatives in any manner arising out of,
in
connection with, with respect to or relating to any representation
or
warranty of Xxxxxxx set forth in this Agreement being untrue or incorrect
or the failure of Xxxxxxx to observe or perform any of its obligations
or
covenants pursuant to this
Agreement.
|
Indemnity
Claim Threshold
|
7.6
|
Before
any Party can make an Indemnity Claim against another Party with
respect
to a representation or warranty set out herein, the Party must have
an
Indemnity Claim or Claims with respect to such representation or
warranty
each of which is in an amount of not less than $250,000 and all of
which
in the aggregate are not less than $1,000,000, but once the aggregate
amount of such Indemnity Claims is equal to or greater than $1,000,000,
such Party can make all of such Indemnity Claims of not less than
$250,000
against such other Party.
|
Limitations
of Indemnity Claims
|
7.7
|
Notwithstanding
anything contained herein, a Party will not be liable to another
Party for
any Indemnity Claims or remedies, whether at law or in equity under
or in
connection with this Agreement for any amount, in the aggregate,
that
exceeds the amount of the aggregate consideration received by that
Party
from such other Party (measured at the Closing Time) pursuant to
the
transactions contemplated by this Agreement, provided that for the
purposes of this Part 7:
|
|
|
(a)
|
Daimler
and its Subsidiaries will be treated as one
Party;
|
|
|
(b)
|
Ford
and its Subsidiaries will be treated as one
Party;
|
|
|
(c)
|
Xxxxxxx
and its Subsidiaries will be treated as one Party;
and
|
-
54 -
|
|
(d)
|
for
greater certainty, the amount of consideration received
by:
|
|
|
(i)
|
Xxxxxxx
and its Subsidiaries from Ford and its Subsidiaries and by Ford and
its
Subsidiaries from Xxxxxxx and its Subsidiaries, shall be deemed to
be
equal to the Fair Market Value of 12,868,700 Xxxxxxx Common Shares
on the
date hereof; and
|
|
|
(ii)
|
Xxxxxxx
and its Subsidiaries from Daimler and its Subsidiaries, and by Daimler
and
its Subsidiaries from Xxxxxxx and its Subsidiaries, shall be deemed
to be
equal to the Fair Market Value of 21,292,598 Xxxxxxx Common Shares
on the
date hereof.
|
Time
Limitation on Indemnity Claims
|
7.8
|
None
of the Parties to this Agreement will be liable to one or more other
Parties under this Agreement for Indemnity Claims or for any other
remedy,
whether at law or in equity, in respect of representations or warranties
contained herein unless the Party makes an Indemnity Claim and has
given
the Party against whom the Indemnity Claim is made notice of the
Indemnity
Claim setting out in reasonable detail the nature and basis of the
Indemnity Claim, and has commenced proceedings for enforcement of
such
Indemnity Claim, within the following time
periods:
|
|
|
(a)
|
a
claim (with respect to title-related matters) under §5.1(l), §5.1(m),
§5.1(n), §5.1(w), §5.2(k), §5.2(l), §5.3(k) and §5.3(l) at any time
(without limitation) after the Closing
Date;
|
|
|
(b)
|
a
claim under any other representation or warranty, within 18 months
after
the Closing Date.
|
PART
8
CLOSING
Closing
|
8.1
|
Subject
to satisfaction or waiver of the conditions set out in Part 6, the
Closing
will take place at the offices of Stikeman Elliott LLP, 0000-000
Xxxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx at the Closing Time on the Closing
Date unless otherwise agreed by the
Parties.
|
Deliveries
by Daimler
|
8.2
|
On
the Closing Date, Daimler will deliver or cause to be
delivered:
|
-
55 -
|
|
(a)
|
to
Xxxxxxx, the following:
|
|
|
(i)
|
certificates
representing the Daimler Xxxxxxx Common Shares and the Daimler DBF
Shares,
duly executed for transfer;
|
|
|
(ii)
|
the
Transaction Documents to which Daimler is a party, duly executed
by
Daimler;
|
|
|
(iii)
|
a
certificate of an authorized signatory of Daimler, dated the Closing
Date,
in form and substance reasonably satisfactory to Xxxxxxx, as
to:
|
|
|
(A)
|
the
Daimler Supervisory Board Approval and the resolutions of the Board
of
Management of Daimler authorizing Daimler’s execution of this Agreement
and the Transaction Documents to which it is a party and the consummation
of the transactions contemplated hereby and
thereby;
|
|
|
(B)
|
each
of the representations and warranties of Daimler contained in this
Agreement, the Transaction Documents and any other related documents
and
instruments being true and correct in all material respects on and
as at
the Closing Date and with the same force and effect as though made
at such
date; and
|
|
|
(C)
|
the
incumbency of the officers of Daimler who execute this Agreement,
the
Transaction Documents and any other related documents and instruments
to
which Daimler is a party;
|
|
|
(iv)
|
resignations
of each of its nominees on the board of directors of Xxxxxxx and
DBF;
and
|
|
|
(v)
|
the
Daimler Closing Opinion;
|
|
|
(b)
|
to
Newco, the following:
|
|
|
(i)
|
the
Transaction Documents to which Daimler is a party, duly executed
by
Daimler;
|
|
|
(ii)
|
a
certificate of an authorized signatory of Daimler, dated the Closing
Date,
in form and substance reasonably satisfactory to Newco, as
to:
|
-
56 -
|
|
(A)
|
the
resolutions of the Board of Management of Daimler authorizing Daimler’s
execution of this Agreement and the Transaction Documents to which
it is a
party and the consummation of the transactions contemplated hereby
and
thereby;
|
|
|
(B)
|
each
of the representations and warranties of Daimler contained in this
Agreement, the Transaction Documents and any other related documents
and
instruments being true and correct in all material respects on and
as at
the Closing Date and with the same force and effect as though made
at such
date; and
|
|
|
(C)
|
the
incumbency of the officers of Daimler who execute this Agreement,
the
Transaction Documents and any other related documents and instruments
to
which Daimler is a party; and
|
|
|
(iii)
|
the
Daimler Closing Opinion; and
|
|
|
(c)
|
to
Ford, the following:
|
|
|
(i)
|
the
Transaction Documents to which Daimler is a party duly executed by
Daimler;
|
|
|
(ii)
|
a
certificate of an authorized signatory of Daimler, dated the Closing
Date,
in form and substance reasonably satisfactory to Ford, as
to:
|
|
|
(A)
|
the
resolutions of the Board of Management of Daimler authorizing Daimler’s
execution of this Agreement and the Transaction Documents to which
it is a
party and the consummation of the transactions contemplated hereby
and
thereby;
|
|
|
(B)
|
each
of the representations and warranties of Daimler contained in this
Agreement, the Transaction Documents and any other related documents
and
instruments being true and correct in all material respects on and
as at
the Closing Date and with the same force and effect as though made
at such
date; and
|
|
|
(C)
|
the
incumbency of the officers of Daimler who execute this Agreement,
the
Transaction Documents and any other related documents and instruments
to
which Daimler is a party; and
|
-
57 -
|
|
(iii)
|
the
Daimler Closing Opinion.
|
Deliveries
by Ford
|
8.3
|
On
the Closing Date, Ford will deliver or cause to be
delivered:
|
|
|
(a)
|
to
Xxxxxxx the following:
|
|
|
(i)
|
certificates
representing the Ford Xxxxxxx Common Shares and the Ford DBF Shares,
duly
executed for transfer;
|
|
|
(ii)
|
the
Transaction Documents to which Ford is a party, duly executed by
Ford;
|
|
|
(iii)
|
a
certificate of the Secretary or an Assistant Secretary of Ford, dated
the
Closing Date, in form and substance reasonably satisfactory to Xxxxxxx,
as
to:
|
|
|
(A)
|
the
execution, delivery and performance of this Agreement and the Transaction
Documents having been duly authorized by all necessary corporate
action on
the part of Ford and no other corporate proceedings on the part of
Ford
being necessary;
|
|
|
(B)
|
each
of the representations and warranties of Ford contained in this Agreement,
the Transaction Documents and any other related documents and instruments
being true and correct in all material respects on and as at the
Closing
Date and with the same force and effect as though made at such date;
and
|
|
|
(C)
|
the
incumbency of the officers of Ford who execute this Agreement, the
Transaction Documents and any other related documents and instruments
to
which Ford is a party;
|
|
|
(iv)
|
resignations
of each of its nominees on the board of directors of Xxxxxxx and
DBF;
and
|
|
|
(v)
|
the
Ford Closing Opinion;
|
|
|
(b)
|
to
Newco the following:
|
|
|
(i)
|
the
Transaction Documents to which Ford is a party, duly executed by
Ford;
|
-
58 -
|
|
(ii)
|
a
certificate of the Secretary or an Assistant Secretary of Ford, dated
the
Closing Date, in form and substance reasonably satisfactory to Xxxxxxx,
as
to:
|
|
|
(A)
|
the
execution, delivery and performance of this Agreement and the Transaction
Documents having been duly authorized by all necessary corporate
action on
the part of Ford and no other corporate proceedings on the part of
Ford
being necessary;
|
|
|
(B)
|
each
of the representations and warranties of Ford contained in this Agreement,
the Transaction Documents and any other related documents and instruments
being true and correct in all material respects on and as at the
Closing
Date and with the same force and effect as though made at such date;
and
|
|
|
(C)
|
the
incumbency of the officers of Ford who execute this Agreement, the
Transaction Documents and any other related documents and instruments
to
which Ford is a party; and
|
|
|
(iii)
|
the
Ford Closing Opinion; and
|
|
|
(c)
|
to
Daimler the following:
|
|
|
(i)
|
the
Transaction Documents to which Ford is a party duly executed by
Ford;
|
|
|
(ii)
|
a
certificate of the Secretary or an Assistant Secretary of Ford, dated
the
Closing Date, in form and substance reasonably satisfactory to Daimler,
as
to:
|
|
|
(A)
|
the
execution, delivery and performance of this Agreement and the Transaction
Documents having been duly authorized by all necessary corporate
action on
the part of Ford and no other corporate proceedings on the part of
Ford
being necessary;
|
|
|
(B)
|
each
of the representations and warranties of Ford contained in this Agreement,
the Transaction Documents and any other related documents and instruments
being true and correct in all material respects on and as at the
Closing
Date and with the same force and effect as though made at such date;
and
|
-
59 -
|
|
(C)
|
the
incumbency of the officers of Ford who execute this Agreement, the
Transaction Documents and any other related documents and instruments
to
which Ford is a party; and
|
|
|
(iii)
|
the
Ford Closing Opinion.
|
Deliveries
by Xxxxxxx
|
8.4
|
On
the Closing Date, Xxxxxxx will deliver or cause to be
delivered:
|
|
|
(a)
|
to
Daimler the following:
|
|
|
(i)
|
a
bank draft or wire transfer of
$36,200,000;
|
|
|
(ii)
|
the
share certificate representing the Daimler Newco
Shares;
|
|
|
(iii)
|
subject
to §5.4(f)(vi) and §5.5(f)(iv), the Transaction Documents to which Xxxxxxx
or Newco is a party, duly executed by Xxxxxxx and/or Newco, as the
case
may be;
|
|
|
(iv)
|
a
certificate of the Corporate Secretary of Xxxxxxx, dated the Closing
Date,
in form and substance reasonably satisfactory to Daimler, as
to:
|
|
|
(A)
|
the
resolutions of the directors of Xxxxxxx authorizing the execution
of this
Agreement and the Transaction Documents and the consummation of the
transactions contemplated hereby and
thereby;
|
|
|
(B)
|
each
of the representations and warranties of Xxxxxxx contained in this
Agreement, the Transaction Documents and any other related documents
and
instruments being true and correct in all material respects on and
as at
the Closing Date and with the same force and effect as though made
at such
date; and
|
|
|
(C)
|
the
incumbency of the officers of Xxxxxxx who execute this Agreement,
the
Transaction Documents and any other related documents and
instruments;
|
|
|
(v)
|
a
certificate of the Corporate Secretary of Newco, dated the Closing
Date,
in form and substance reasonably satisfactory to Daimler, as
to:
|
-
60 -
|
|
(A)
|
the
resolutions of the directors of Newco authorizing the execution of
the
Transaction Documents and the consummation of the transactions
contemplated thereby; and
|
|
|
(B)
|
the
incumbency of the officers of Newco who execute the Transaction Documents
and any other related documents and
instruments;
|
|
|
(vi)
|
a
certified copy of the Ordinary Resolution and the Special Resolution
approved by the requisite majority;
and
|
|
|
(vii)
|
the
Stikemans Closing Opinion and the Xxxxxxx Closing
Opinion;
|
|
|
(b)
|
to
Ford the following:
|
|
|
(i)
|
a
bank draft or wire transfer of
$21,800,000;
|
|
|
(ii)
|
the
share certificate representing the Ford Newco
Shares;
|
|
|
(iii)
|
subject
to §5.4(f)(vi) and §5.5(f)(iv), the Transaction Documents to which Xxxxxxx
or Newco is a party, duly executed by Xxxxxxx and/or Newco, as the
case
may be;
|
|
|
(iv)
|
a
certificate of the Corporate Secretary of Xxxxxxx, dated the Closing
Date,
in form and substance reasonably satisfactory to Ford, as
to:
|
|
|
(A)
|
the
resolutions of the directors of Xxxxxxx authorizing the execution
of this
Agreement and the Transaction Documents and the consummation of the
transactions contemplated hereby and
thereby;
|
|
|
(B)
|
each
of the representations and warranties of Xxxxxxx contained in this
Agreement, the Transaction Documents and any other related documents
and
instruments being true and correct in all material respects on and
as at
the Closing Date and with the same force and effect as though made
at such
date; and
|
|
|
(C)
|
the
incumbency of the officers of Xxxxxxx who execute this Agreement,
the
Transaction Documents and any other related documents and
instruments;
|
-
61 -
|
|
(v)
|
a
certificate of the Corporate Secretary of Newco, dated the Closing
Date,
in form and substance reasonably satisfactory to Ford, as
to:
|
|
|
(A)
|
the
resolutions of the directors of Newco authorizing the execution of
the
Transaction Documents and the consummation of the transactions
contemplated thereby; and
|
|
|
(B)
|
the
incumbency of the officers of Newco who execute the Transaction Documents
and any other related documents and
instruments;
|
|
|
(vi)
|
a
certified copy of the Ordinary Resolution and the Special Resolution
approved by the requisite majority;
and
|
|
|
(vii)
|
the
Stikemans Closing Opinion and the Xxxxxxx Closing Opinion;
and
|
|
|
(c)
|
to
Newco the following:
|
|
|
(i)
|
a
bank draft or wire transfer of
$2,000,000;
|
|
|
(ii)
|
subject
to §5.4(f)(vi) and §5.5(f)(iv), the Transaction Documents to which Xxxxxxx
is a party, duly executed by
Xxxxxxx;
|
|
|
(iii)
|
an
electronic copy (burned onto DVDs) of all Program
Documents;
|
|
|
(iv)
|
a
certificate of the Corporate Secretary of Xxxxxxx, dated the Closing
Date,
in form and substance reasonably satisfactory to Newco, as
to:
|
|
|
(A)
|
the
resolutions of the directors of Xxxxxxx authorizing the execution
of this
Agreement and the Transaction Documents and the consummation of the
transactions contemplated hereby and
thereby;
|
|
|
(B)
|
each
of the representations and warranties of Xxxxxxx contained in this
Agreement, the Transaction Documents and any other related documents
and
instruments being true and correct in all material respects on and
as at
the Closing Date and with the same force and effect as though made
at such
date; and
|
-
62 -
|
|
(C)
|
the
incumbency of the officers of Xxxxxxx who execute this Agreement,
the
Transaction Documents and any other related documents and instruments;
and
|
|
|
(v)
|
the
Stikemans Closing Opinion and the Xxxxxxx Closing
Opinion.
|
Additional
Deliveries
|
8.5
|
In
addition to the specific deliveries contemplated by §8.2 to §8.4, each of
the Parties will, on or before the Closing Date, enter into, execute
and
deliver all such instruments, documents and payments as are necessary
or
desirable to complete the transactions contemplated by this
Agreement. Without limiting the generality of the foregoing,
each of the Parties will execute and deliver all such documents and
instruments as may be necessary to implement the Holding Structure
as the
last step in the transactions contemplated herein to occur on the
Closing
Date.
|
PART
9
GOVERNING
LAW; DISPUTE RESOLUTION
Initiation
of Process
|
9.1
|
If
at any time a dispute among any of the Parties with respect to any
matter
relating to this Agreement arises, any of Daimler, Ford or Xxxxxxx
that
wishes that the issue be considered further will give notice to each
of
the other Parties, whether or not involved in the dispute, requiring
that
such issue or dispute be decided pursuant to this
Agreement.
|
Referral
to Senior Officers
|
9.2
|
If
notice is given pursuant to §9.1, any of Daimler, Ford or Xxxxxxx may ask
a senior officer of each of the three of them (the "Senior Officers")
to
forthwith initiate discussions with one another with a view to settling
the issue or matter.
|
Decision
Binding
|
9.3
|
A
unanimous decision reached by the Senior Officers and communicated
by them
in writing to the Parties will be binding on such Parties and will
be
implemented.
|
Submission
to Arbitration
|
9.4
|
If
no decision with respect to an issue or dispute of which notice is
given
pursuant to §9.1 is so communicated by the Senior Officers within 30 days
after such notice is delivered, any of Daimler, Ford or Xxxxxxx may
at any
time before a unanimous decision thereon is communicated and less
than 90
days after such notice under §9.1 is given, by further notice given to
each of the others of them, submit the issue or dispute for final
resolution by an arbitral tribunal consisting of a single arbitrator,
if
the Parties to such issue or dispute so agree, or otherwise to a
panel of
three arbitrators, appointed and acting under the Swiss Rules of
International Arbitration. The seat of the arbitration shall be
Zurich, Switzerland. No party will pursue any remedy or action
in any other court or jurisdiction except as expressly provided in
this
Part 9.
|
-
63 -
Acceptance
and Implementation
|
9.5
|
Any
Party whether or not affected by or involved in a dispute under
this Part 9 may participate as a Party in the arbitration under
this Part 9 and each Party will accept as final and binding and
proceed in good faith diligently to implement, the award or decision
of
the arbitral tribunal on an arbitration pursuant to §9.4. The
Parties hereby expressly exclude all remedies and setting aside of
proceedings and waive fully any action for annulment by virtue of
Article
192(1) of the Swiss Private International Law
Statute.
|
Conduct
of Arbitration
|
9.6
|
All
arbitration proceedings will be conducted in Zurich, Switzerland
in the
English language.
|
Arbitration
Award
|
9.7
|
Any
arbitration award will be in writing, in the English language, and
will
contain the reasons for the award as well as a decision regarding
payment
of costs by the parties to the arbitration. The arbitral
tribunal will not have the power to grant provisional and conservatory
measures including injunctions, restraining orders and specific
performance, and each Party reserves its right to apply for such
remedies
to any ordinary court of competent jurisdiction, in which case such
Party
may apply directly to such court without complying with §9.1 or
§9.2.
|
Governing
Law
|
9.8
|
This
Agreement is and will be deemed to have been made in Switzerland
and the
construction, validity and performance of this Agreement will be
governed
in all respects by Swiss substantive laws. With respect to the
laws on purchase contracts, Article 184 et seq of the Swiss Code
of
Obligations will apply instead of the Vienna Convention on the
International Purchase of Goods of April 11,
1980.
|
-
64 -
PART
10
TERMINATION
Termination
Time
|
10.1
|
If
the Closing has not occurred on or before 5:00 p.m. (Vancouver time)
on
March 31, 2008 (the "Termination Time"), this Agreement
will be null and void and of no further force and effect at and after
the
Termination Time, other than the provisions of §11.4, which shall survive
such termination, except that no Party will be released or relieved
from
any liability arising from the breach by such Party as of or before
such
time of any of its representations, warranties, covenants or agreements
contained in this Agreement.
|
Termination
at any Time
|
10.2
|
This
Agreement may be terminated:
|
|
|
(a)
|
by
Daimler, Ford or Xxxxxxx at any time after November 23, 2007 if on
the
date of such termination the Parties have not settled the Holding
Structure to the satisfaction of each of the Parties;
or
|
|
|
(b)
|
by
Xxxxxxx at any time after December 14, 2007 if on the date of such
termination Daimler has not obtained the Daimler Supervisory Board
Approval; or
|
|
|
(c)
|
at
any time before or after this Agreement has been approved by the
Xxxxxxx
Shareholders with the written consent of each of the
Parties;
|
and
thereafter this Agreement will be null and void and of no further force and
effect, other than the provisions of §11.4, which shall survive such
termination, except that no Party will be released or relieved from any
liability arising from the breach by such Party as of or before such time of
any
of its representations, warranties, covenants or agreements contained in this
Agreement.
PART
11
GENERAL
Modifications,
Approvals and Consents
|
11.1
|
No
amendment, modification, supplement, waiver or termination of any
provision of this Agreement will be effective unless made in writing
and
signed by each of the Parties having rights under this Agreement
at that
time and then only in the specific instance and for the specific
purpose
given.
|
-
65 -
Further
Assurances
|
11.2
|
The
Parties will execute such further assurances and other documents
and
instruments and do such further and other things as may be necessary
to
implement and carry out the intent of this
Agreement.
|
Entire
Agreement
|
11.3
|
The
provisions in this Agreement, the Transaction Documents, and any
other
instruments and documents expressly contemplated herein, constitute
the
entire agreement among the Parties in respect of the matters agreed
to or
expressly contemplated in this
Agreement.
|
Expenses
|
11.4
|
Except
as otherwise expressly stated in this Agreement, each Party will
bear its
own costs and expenses incurred in connection with the preparation,
execution and delivery of this Agreement and the completion of the
transactions contemplated in this
Agreement.
|
Confidentiality
Obligations of Xxxxxxx, Daimler and Ford
|
11.5
|
(a)
|
Each
Party will, and will cause its Subsidiaries and its and their directors,
officers, employees and agents to, keep all Confidential Information
disclosed to any of them by the others of them confidential and will
not
use or disclose such Confidential Information to any Person except
to the
extent:
|
|
|
(i)
|
such
use or disclosure is expressly permitted or contemplated pursuant
to this
Agreement or any agreement contemplated
herein;
|
|
|
(ii)
|
such
use or disclosure is strictly necessary to enable the recipient of
such
Confidential Information to exercise its rights and perform its
obligations under this Agreement or any agreement contemplated in
this
Agreement;
|
|
|
(iii)
|
such
use or disclosure is required by applicable
law;
|
|
|
(iv)
|
such
information is in the public domain other than as a result of a breach
of
this Agreement or any agreement contemplated in this Agreement;
or
|
-
66 -
|
|
(v)
|
such
use or disclosure is required pursuant to a final order or judgment
of a
court of competent jurisdiction and in such case the Parties will
cooperate with one another to obtain an appropriate protective order
or
other reliable assurance that the confidentiality of such Confidential
Information will be maintained.
|
|
|
(b)
|
Each
Party will not, and will ensure that its Subsidiaries, and its and
their
directors, officers, employees and agents do not, release any publicity
or
advertising relating to this Agreement, the agreements and instruments
entered into pursuant to this Agreement or the transactions contemplated
hereunder and thereunder to any Third Party, including any news media
organization, without the prior consent of the other Parties, except
as
provided for under §11.5(a).
|
|
|
(c)
|
Each
Party acknowledges that the Confidential Information of the other
Parties
consists in part of information vital to the business and commercial
prospects of those other Parties and that such information is the
special,
valuable and unique property of those other Parties and would not
normally
be disclosed to it. Accordingly, each Party agrees to act as a
fiduciary of each other Party that provides it with Confidential
Information and to use all commercially reasonable efforts to protect
such
Confidential Information and keep it confidential using a standard
of care
no less than the degree of care that such Party would be reasonably
expected to employ for its own similar Confidential
Information.
|
|
|
(d)
|
Without
prejudice to any other rights or remedies, in the event of litigation
relating to a breach of the provisions of this §11.5, if a court of
competent jurisdiction determines in a final, non-appealable order
that
any of such provisions has been breached, the Party in breach will
reimburse the other Parties for their respective costs and expenses
(including reasonable legal fees and expenses) incurred in connection
with
all such litigation.
|
|
|
(e)
|
No
failure or delay by Xxxxxxx, Daimler or Ford or any of such Parties’
respective representatives in exercising any right, power or privilege
under this §11.5 will operate as a waiver thereof nor will any single or
partial exercise thereof preclude any other or further exercise of
any
right, power or privilege hereunder. No provision of this §11.5
may be waived or amended nor any consent given except in writing
signed by
a duly authorized officer of each Party so waiving or
consenting.
|
-
67 -
|
|
(f)
|
The
provisions contained in this §11.5 will take effect on the Closing Date,
at which time they will supersede the terms and conditions contained
in
Part 16 of the Fourth Alliance Agreement which is being terminated
on the
Closing Date.
|
Notices
|
11.6
|
Every
notice, request, demand, direction or other communication (each,
for the
purposes of this §11.6, §11.7 and §11.8, a "Notice")
required or permitted to be given pursuant to this Agreement will
be
deemed to be well and sufficiently given if in writing, in the English
language, and delivered by hand (including recognized overnight courier
service) in each case addressed as
follows:
|
|
(a)
|
if
to Xxxxxxx at:
|
0000
Xxxxxxxx Xxxxxxx
Xxxxxxx,
Xxxxxxx Xxxxxxxx
Xxxxxx X0X
0X0
Attention: Corporate
Secretary
|
(b)
|
if
to Daimler at:
|
Xxxxxxxxxxxxxxx
000
00000
Xxxxxxxxx
Xxxxxxx
Attention: Legal
Department, General Counsel
with
a
copy to Senior Vice-President, Mergers and Acquisitions, and to
Senior
Vice-President, Research, Body and Powertrain
|
(c)
|
if
to Ford, at:
|
Xxx
Xxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx
00000 XXX
Attention: Secretary
or
to
such other address as is specified by the particular Party by Notice to the
others.
-
68 -
Deemed
Receipt
|
11.7
|
Any
Notice delivered as aforesaid will be deemed conclusively to have
been
effectively given and received on the day Notice was delivered as
aforesaid if it was delivered before 4:00 p.m. local time of the
Party
receiving the Notice on a day that was a Business Day or on the next
day
that is a Business Day if it was delivered on a day that was not
a
Business Day or after 4:00 p.m. local time on a Business
Day.
|
Change
of Address
|
11.8
|
A
Party may at any time, by Notice to the others, change its address
to some
no less convenient address and will so change its address whenever
its
address ceases to be suitable for delivery by
hand.
|
Enurement
|
11.9
|
This
Agreement will enure to the benefit of and be binding upon the Parties
and
their respective successors and permitted
assigns.
|
Time
of the Essence
|
11.10
|
Time
is of the essence in the performance of each obligation under this
Agreement.
|
Counterparts
|
11.11
|
This
Agreement may be executed in any number of notarial authentic copies,
all
of which will together, for all purposes, constitute one and the
same
instrument, binding on the Parties, and each of which will be deemed
to be
an original.
|
No
Partnership or Unincorporated Joint Venture
|
11.12
|
The
Parties expressly disclaim any intention to create or form a partnership
or unincorporated joint venture among any of the Parties or any of
the
other corporations referred to in this
Agreement.
|
Press
Releases
|
11.13
|
No
Party will, and each Party will ensure that its affiliates, directors,
officers, employees and agents will not, issue any press release
related
to this Agreement, the agreements and instruments entered into pursuant
to
this Agreement or the transactions contemplated hereunder or thereunder,
without the prior consent of the other Parties, except to the
extent
|
-
69 -
|
|
(a)
|
such
disclosure is expressly permitted or contemplated pursuant to this
Agreement or any agreement contemplated
herein,
|
|
|
(b)
|
such
disclosure is strictly necessary to enable the Party to exercise
its
rights and perform its obligations under this Agreement or any agreement
contemplated in this Agreement,
|
|
|
(c)
|
such
disclosure is required by applicable
law,
|
|
|
(d)
|
such
information is in the public domain other than as a result of a breach
of
this Agreement or any agreement contemplated in this Agreement,
or
|
|
|
(e)
|
such
disclosure is required pursuant to a final order or judgement of
a court
of competent jurisdiction and in such case the Parties will co-operate
with one another to obtain an appropriate protective order or other
reliable assurances that the confidentiality of such information
will be
maintained.
|
Proceedings
|
11.14
|
Each
Party will not, and will ensure that none of its Subsidiaries will,
at any
time, take any step or proceeding to have any of the provisions contained
in this Agreement declared invalid or unenforceable or use any defence
based on a claim of invalidity or unenforceability of any provision
contained in this Agreement.
|
IN
WITNESS WHEREOF this Agreement has been executed by the Parties on the
day and year first above written.
XXXXXXX
POWER SYSTEMS INC.
By: “Xxxx
Xxxxxxxx”
Its: Chief
Executive Officer
By: “Xxxxx
Kumoi”
Its: VP,
General Counsel and Corporate Secretary
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70 -
DAIMLER
AG
By: “Xxxxxxxxx
Xxxxxxxxx”
Its:
FORD
MOTOR COMPANY
By: “Xxxxx
X Xxxxxx”
Its: Chief
Engineer
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71
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