CONFIDENTIAL MATERIALS OMITTED AND
FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION.
ASTERISKS DENOTE OMISSIONS.
CELESTICA INC.
BUYER
NEC DO BRASIL S.A.
SELLER
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QUOTA PURCHASE AGREEMENT
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▇▇▇▇▇▇, ▇▇▇▇▇ E ▇▇▇▇▇▇▇▇ - ADVOGADOS
ASSOCIATED WITH ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
AVENIDA ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, 920 - 8TH FLOOR
MARKET PLACE TOWER
04583-904 SAO PAULO - SP
BRAZIL
TEL (▇▇-▇▇) ▇▇▇▇-▇▇▇▇
FAX (▇▇-▇▇) ▇▇▇▇-▇▇▇▇
QUOTA PURCHASE AGREEMENT
This Quota Purchase Agreement (the "AGREEMENT") is made as of June 22, 2000
(the "SIGNING DATE"), by and between:
-- CELESTICA INC., a company organized and existing in accordance with the
laws of the Province of Ontario (Canada), with principal offices at ▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ("BUYER");
and
-- NEC DO BRASIL S.A. a company organized and existing in accordance with
the laws of Brazil, with principal offices at Rodovia Presidente ▇▇▇▇▇
▇▇. ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ("SELLER").
RECITALS
▇. ▇▇▇▇▇▇ and Celestica do Brasil Ltda. ("CELESTICA BRASIL") entered into a
Quota Purchase Agreement made on June 22, 2000 (the "ORIGINAL AGREEMENT");
▇. ▇▇▇▇▇ and Seller wish to amend and restate the Original Agreement by
substituting the Buyer in the place and stead of Celestica Brasil as if Buyer
were the original party thereto. Celestica Brasil has given its consent to
such substitution in order to accommodate internal corporate and business
structures;
C. Seller is engaged in the business of manufacturing electronic and
telecommunication equipment (the "MANUFACTURING OPERATION") at its
manufacturing facility located in Guarulhos, State of Sao Paulo, Brazil
("FACILITY");
▇. ▇▇▇▇▇▇ desires to dispose of, and ▇▇▇▇▇ desires to acquire the
Manufacturing Operation;
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▇. ▇▇▇▇▇ to the Closing Date (as defined below), Seller intends to organize
and own, directly or indirectly, one hundred per cent (100%) of the quotas
(the "QUOTAS") of a new company designated NDB Industrial Ltda., organized
under the laws of Brazil, with head offices at Rodovia Presidente ▇▇▇▇▇ ▇▇.
214, Guarulhos, State of Sao Paulo, Brazil (the "COMPANY");
F. Prior to the Closing Date, Seller intends to transfer free of any liens
and encumbrances to the Company, as its capital contribution, certain assets
related to the Manufacturing Operation, including fixed assets, raw
materials, production in course and inventory (the "ASSETS"), related to the
manufacturing of electronic and telecommunication equipment currently
manufactured at the Facility, as listed in Attachment D ("PRODUCTS"); and
G. Subject to the terms and conditions contained herein, Seller intends to
sell and transfer the Quotas to or at the direction of Buyer, and subject to
such terms and conditions, Buyer intends to purchase or cause one of its
subsidiaries to purchase the Quotas from Seller.
In consideration of the foregoing and of the mutual promises contained
herein, ▇▇▇▇▇ and Seller (collectively, the "PARTIES") have amended and
restated the Original Agreement as follows:
ARTICLE 1
ORGANIZATION OF THE COMPANY AND TRANSFER OF ASSETS
1.1 ORGANIZATION OF THE COMPANY. Before the Closing Date and as a condition
for the Closing, Seller shall organize the Company as a wholly owned direct
subsidiary in the form of a Brazilian limited liability company and shall
obtain all approvals, and authorizations from, and make all registrations and
filings with, all appropriate governmental and other authorities in order to
enable the Company to be duly organized and validly existing under Brazilian
laws. Seller shall not allow the Company to issue any capital stock except as
expressly provided in this Agreement (i.e., capital increase pursuant to the
transfer of goods as described in Article 1.2 below).
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1.2 TRANSFER OF ASSETS. On or before the Closing Date and as a condition for
the Closing, Seller shall transfer and assign to the Company, as paid-in
capital for the Company's capital formation and any further capital increase,
free and clear of any liens or encumbrances, certain assets related to the
Manufacturing Operation, including fixed assets, raw materials, production in
course and inventory, related to the manufacturing of electronic and
telecommunication equipment currently manufactured at the Facility, as
described in Attachment 1.2-1 (the "TRANSFERRED ASSETS") at the net book
value of the Transferred Assets as of the Closing Date (corresponding to
US$72,044,000.00 (seventy two million forty four thousand U.S. dollars) as of
December 31, 1999, as set forth in the December Balance Sheet attached hereto
as Attachment 1.2-2). The Company shall not assume, and Seller shall retain
all liabilities and related obligations, accrued on or prior to the Closing
Date, related to the Transferred Assets and to the Manufacturing Operation
(the "RETAINED LIABILITIES"), including, without limitation, any liability or
obligation relating to federal, state or local taxes attributable to Seller,
subject to the provisions of Article 5 hereof, except for those accrued
expenses and other current liabilities that are itemized in Attachment 1.2-2
which shall be assumed by the Company and reflected in the net book value of
the Transferred Assets.
1.3 EXCLUDED ASSETS. The following assets are not included in this
transaction:
(a) the land and buildings where the Manufacturing operates and raw
materials and inventory are stored (which land and buildings shall be leased
from Seller to the Company);
(b) Seller's intellectual property relating to the Products; and
(c) any and all Seller's assets not listed in Attachment 1.2-1.
1.4 INSTRUMENTS OF CONVEYANCE AND TRANSFER. Seller shall provide the
required instruments for conveyance of title and take such further action as
Buyer or the Company may request for the effective transfer of title and
possession of Transferred Assets.
1.5 TRANSFERRED EMPLOYEES. On or before the Closing Date, Seller shall
transfer to the Company those employees, including a group of executives,
employed in the Manufacturing Operation, who are listed in Attachment 1.5 on
the date of transfer ("TRANSFERRED EMPLOYEES").
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Such transfer shall maintain the existing terms of employment on the date of
transfer, including, without limitation, positions, duties, salaries, bonus,
benefits and severance fund ("FGTS").
1.6 ASSIGNMENT OF CONTRACTS. Before the Closing Date, Seller shall assign to
the Company all contracts listed in Attachment 4.8 (the "ASSIGNED CONTRACTS").
1.7 LIABILITIES. Except accrued expenses and other current liabilities
disclosed in Attachment 1.2-2, liabilities of any kind, existing before or on
the Closing Date, related to the Transferred Employees, shall be exclusively
borne by Seller, subject to the provisions of Article 5 hereof. Any and all
liabilities related to the Transferred Employees after the Date of Closing,
including any severance fund (FGTS) or similar termination related costs
(whether initiated by Buyer or employee), Christmas bonus, vacations and
other labor rights related to the employment, shall be exclusively borne by
Buyer.
ARTICLE 2
PURCHASE AND SALE OF QUOTAS
2.1 PURCHASE AND SALE. Subject to the terms and conditions set forth in this
Agreement, on the Closing Date (as defined below) Seller hereby promises to
sell, assign and transfer the Quotas to Buyer, and Buyer hereby promises to
purchase the Quotas from Seller, pursuant to the execution of the Amendment
to the Articles of Organization of the Company, which will reflect the sale,
purchase and transfer of Quotas from Seller to Buyer, among other matters.
2.1.1 On the Closing Date, Seller shall be the holder, directly or
indirectly, of 100% of the Quotas, each of which shall be free and clear of
any emcumbrances, liens, pledges, obligations, restrictions to their sale or
transfer or litigation of any nature.
2.2 CLOSING. The closing of the transaction contemplated by this Agreement
(the "CLOSING") shall take place in the offices of Trench, ▇▇▇▇▇ e ▇▇▇▇▇▇▇▇
Advogados, at Av. ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, 920 - 8th floor, in the City of Sao
Paulo, State of Sao Paulo, Brazil, on June 30,
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2000 (the "CLOSING DATE"), or at such other date and/or place as the parties
shall mutually agree, but, in any event, no later than ninety (90) days after
the Signing Date.
ARTICLE 3
PURCHASE PRICE; TERMS OF PAYMENT
3.1 PURCHASE PRICE. Subject to adjustments as set forth in Sections 3.4 and
3.5 hereof, the total purchase price (the "PURCHASE PRICE") for the purchased
Quotas is the amount in the Brazilian currency equivalent to the sum of
US$122,044,000.00 (One hundred twenty two million, forty four thousand U.S.
Dollars), comprised of (i) US$72,044,000.00 (Seventy two million, forty four
thousand U.S. Dollars) representing the net book value of the Transferred
Assets as set forth on the December Balance Sheet (the "DECEMBER BOOK VALUE
AMOUNT"), and (ii) US$50,000,000.00 (Fifty million U.S. Dollars) representing
a premium over the December Book Value Amount (the "PURCHASE PRICE PREMIUM").
3.2 EXCHANGE RATE. The conversion of the Purchase Price from U.S. Dollars
into Reais shall be computed by applying the average buy/sell commercial
exchange rate quoted by the Central Bank of Brazil (SISBACEN PTAX 800 -
Option 5) at the close of business on the day immediately preceding the
Closing Date.
3.3 METHOD OF PAYMENT. Payment of the Purchase Price shall be made on the
Closing Date by Buyer to Seller by check or by wire transfer of immediately
available funds to Seller to such account within Brazil as Seller shall
designate.
3.4 PRE-CLOSING PURCHASE PRICE ADJUSTMENT. Not later than three business
days prior to the Closing, Seller shall deliver to Buyer a good faith
estimate of the balance sheet of the Company as of the Closing Date (the
"CLOSING BALANCE SHEET"). At the Closing, (a) if the book value of the
Transferred Assets as set forth on the Closing Balance Sheet (the "CLOSING
BOOK VALUE AMOUNT") exceeds the December Book Value Amount, the Purchase
Price shall be increased by the amount of such excess, or (b) if the Closing
Book Value Amount is less than the December Book Value Amount, the Purchase
Price shall be decreased by the amount of such
5
deficit. The conversion method set forth in Section 3.2 above shall be
applied to convert the adjusted Purchase Price from U.S. Dollars into Reais
and for purposes of calculating the estimated Closing Balance Sheet. In
neither of the foregoing events shall the amounts of the Purchase Price
Premium be increased or decreased.
3.5 POST-CLOSING PURCHASE PRICE ADJUSTMENT. The Purchase Price shall be
subject to adjustment after the Closing Date, according to the specifications
mentioned below.
3.5.1 As soon as practicable following the Closing Date, but in any event
within sixty (60) calendar days following the Closing Date, Buyer shall
deliver to Seller an audited balance sheet of the Company as of the Closing
Date (the "POST-CLOSING BALANCE SHEET"), prepared by Buyer, together with a
report thereon from Buyer's independent accountant stating that the
Post-Closing Balance Sheet fairly presents the book value of the Transferred
Assets at the Closing Date in accordance with generally accepted Brazilian
accounting principles ("GAAP") applied on a basis consistent with the
preparation by Seller of the Closing Balance Sheet. In the event that ▇▇▇▇▇
fails timely to deliver the Post-Closing Balance Sheet for any reason
whatsoever, the Closing Balance Sheet shall be deemed to be and shall be
final, binding and conclusive on Buyer and Seller and the Purchase Price
shall no longer be subject to adjustment.
3.5.2 Within twenty (20) business days following the delivery by Buyer of the
Post-Closing Balance Sheet, Seller may dispute any amount(s) reflected
thereon, but only on the basis that the amounts reflected thereon were not
arrived at in accordance with GAAP applied on a basis consistent with the
preparation by Seller of the Closing Balance Sheet; provided, however, that
Seller shall have notified Buyer and ▇▇▇▇▇'s independent accountant in
writing of each disputed item, specifying the amount thereof in dispute and
setting forth, in reasonable detail, the basis for such dispute, within
twenty (20) business days following Buyer's delivery of the Post-Closing
Balance Sheet to Seller. In the event of such a dispute, ▇▇▇▇▇▇'s controller
and/or independent accountant and ▇▇▇▇▇'s independent accountant shall
attempt to reconcile their differences, and any mutually agreed resolution by
them as to any disputed amounts shall be deemed to be and shall be final,
binding and conclusive on Buyer and Seller. If Seller's controller and/or
independent accountant and ▇▇▇▇▇'s independent accountant are unable to
6
mutually reach a resolution with such effect within said twenty business days
after receipt by ▇▇▇▇▇ and ▇▇▇▇▇'s independent accountant of Seller's written
notice of dispute, Seller's controller and/or independent accountant and
▇▇▇▇▇'s independent accountant shall submit the items remaining in dispute
for resolution to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (the "INDEPENDENT ACCOUNTING FIRM"), which
shall, within thirty business days after such submission, determine and
report to Buyer and Seller upon such remaining disputed items, and such
report shall be deemed to be and shall be final, binding and conclusive on
Buyer and Seller. The fees and disbursements of the Independent Accounting
Firm shall be allocated between Buyer and Seller in the same proportion that
the aggregate amount of such remaining disputed items so submitted to the
Independent Accounting Firm that is unsuccessfully disputed by each such
party (as finally determined by the Independent Accounting Firm) bears to the
total amount of such remaining disputed items so submitted. In acting under
this Section 3.5, Seller's controller and/or independent accountant, ▇▇▇▇▇'s
independent accountant and the Independent Accounting Firm shall be entitled
to the privileges and immunities or arbitrators.
3.5.3 The Post-Closing Balance Sheet shall be deemed final for the purposes
of this Section 3.5 upon the earliest of (i) the failure of Seller to notify
Buyer of a dispute within twenty (20) business days following Buyer's
delivery of the Post-Closing Balance Sheet to Seller, (ii) the resolution of
all disputes, pursuant to Section 3.5.2, by Seller's controller and Buyer's
independent accountant, and (iii) the resolution of all disputes, pursuant to
Section 3.5.2, by the Independent Accounting Firm.
Within three business days following the Post-Closing Balance Sheet
being deemed final, a Purchase Price adjustment shall be made and become due
and payable as follows: (i) if the book value of the Purchased Assets as set
forth on the Post-Closing Balance Sheet (the "POST-CLOSING BOOK VALUE
AMOUNT") exceeds the Closing Book Value Amount, the Purchase Price shall be
increased by the amount of such excess and Buyer shall pay over such excess
to Seller in accordance with Section 3.5.4 hereof, or (b) if the Post-Closing
Book Value Amount is less than the Closing Book Value Amount, the Purchase
Price shall be decreased by the amount of such deficit and Seller shall pay
over such deficit to Buyer in accordance with Section 3.5.4.
7
In neither of the foregoing events shall the amount of the Purchase Price
Premium be increased or decreased.
3.5.4 Buyer shall pay to Seller the amount by which the Post-Closing Book
Value Amount exceeds the Closing Book Value Amount, or Seller shall pay to
Buyer the amount by which the Closing Book Value Amount exceeds the
Post-Closing Book Value Amount, as applicable, by a wire transfer of
immediately available funds in Reais, according to the conversion method from
U.S. Dollars into Reais set forth in Section 3.2 herein, to such bank account
or accounts as the party to receive such payment may specify in writing to
the other party. Any such payment shall also include simple interest on the
amount of such payment, calculated at the annual (365 day) rate of eight and
one half percent (8.5%) and accruing from the Closing Date through (but not
including) the date on which such payment is made.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby makes the following representations and warranties to Buyer:
4.1 CORPORATE STATUS. Seller is a duly organized and validly existing
company under the laws of Brazil and has the corporate power to own its
assets and conduct its business as being currently conducted. Attachment 4.1
contains a copy of Seller's bylaws. Seller further represents and warrants to
Buyer that, on the Closing Date, the Company will be a duly organized and
validly existing company under the laws of Brazil and will have the corporate
power to own its assets and to conduct its business as then conducted by it.
4.2 CAPITALIZATION. On the Closing Date all of the Company's Quotas will
be duly authorized, validly issued and fully paid in. On the Closing Date
Seller shall legally and validly hold, directly or indirectly, the total
quantity of the Company's Quotas, which, on such date, shall be free of
attachments, liens, pledges or encumbrances of any kind, any other
restrictions to
8
their transfer or sale or any litigation and shall not be subject to any
options or commitments assumed by Seller.
4.3 CORPORATE AUTHORITY. Seller has the legal right, power and authority
to enter into this Agreement and to transfer the Company's Quotas as provided
in this Agreement. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly
authorized by all necessary corporate decisions or other actions of Seller
and the Company, and this Agreement constitutes the legal, valid and binding
obligation, enforceable against Seller in accordance with its terms.
4.4 NO RESTRICTIONS. Neither the execution of this Agreement nor the
consummation of the transactions contemplated hereby does or shall conflict
with or result in a breach of, or give rise to a right of termination of, or
accelerate the performance required by, any terms of any agreement, covenant,
court order, consent decree, license or permit to which the Seller or the
Company is subject or a party, nor constitute a default thereunder, nor
result in the creation of any encumbrance, lien, charge or security interest
upon any of the Quotas or the assets of the Seller or the Company, nor
violate any of the provisions of the Articles of Organization or Bylaws of
Seller or the Company. There is no pending lawsuit, court proceeding or
investigation against Seller or the Company that might prevent the
consummation of any of the transactions contemplated by this Agreement in
accordance with the terms hereof.
4.5 GOVERNMENT APPROVALS. No action, consent or approval of, registration
or filing with, or any other action by, any governmental authority will be
required in connection with the performance by Seller of this Agreement or in
connection with the transactions contemplated hereby, except for (i) the ones
described in Article 9 below and (ii) the filing with the Board of Trade of
the State of Sao Paulo of the Amendment to the Articles of Organization of
the Company.
4.6 PERSONAL PROPERTY. Seller owns and immediately prior to the transfer
of the Transferred Assets to the Company in accordance with Section 1.2
hereof, will own or is and shall be legally entitled to use all assets
necessary to conduct its operations and activities as they
9
are currently conducted. From and after the transfer of the Transferred
Assets to the Company and until the closing of the Buyer's acquisition of the
Quotas pursuant hereto, the Company will own and be legally entitled to use
all assets necessary to conduct its operations and activities as they are
currently conducted by Seller. Seller has maintained and up to the Closing
Date will continue and cause the Company to continue to maintain all such
assets in accordance with prudent maintenance practices. All such assets are,
and will up to the Closing Date be owned by the Seller or the Company, as the
case may be, free and clear of any attachments, encumbrances, pledges or
liens, or any other restrictions to their transfer or sale or any litigation.
4.7 CONTRACTS. Attachment 4.7 lists all written contracts related to the
Manufacturing Operation to which Seller is a party and which will be assigned
to the Company on or prior to the Closing Date. All such contracts are legal,
valid, binding, and enforceable against all parties thereto and in full force
and effect. Seller or the Company, as the case may be, has performed all of
the obligations required to be performed by it under the Assigned Contracts,
and is entitled to all benefits thereunder and is not in default or alleged
to be in default in respect of any such contracts, and no event, condition or
occurrence exists which, after notice or lapse of time or both, would
constitute a default under any such contracts. Seller has provided to Buyer a
true and complete copy of each Assigned Contract listed in Attachment 4.7.
4.8 INVENTORY. The December Balance Sheet of the Company accurately
reflects the value of the inventory used by Seller in the Manufacturing
Operation as of such date and represents all of the inventory of the
Manufacturing Operation on such date. Such inventories do not include any
material items that are below standard quality or of a quality or quantity
not useable or saleable in the normal course of business of the Manufacturing
Operation, unless the value of such inventory has been written down on the
December Balance Sheet to net realizable market value. There has been no
deterioration in the value of the inventory owned by Seller or the Company,
as the case may be, in connection with the Manufacturing Operation since
December 31, 1999. Inventory levels are maintained by Seller in connection
with the Manufacturing Operation at amounts required for the operation of the
Manufacturing Operation and will continue to be maintained by Seller or the
Company, as the case may be, at such levels until the Closing Date.
10
4.9 INSURANCE. Seller has and the Company will have its property and
assets insured against loss or damage by all insurable hazards or risks upon
a replacement cost basis and such insurance coverage will be continued in
full force and effect up to and including the Closing Date. Attachment 4.9
lists all insurance policies maintained by Seller until the transfer of the
Transferred Assets to the Company pursuant to Section 1.2 hereof and to be
maintained by the Company in connection with the Manufacturing Operation
thereafter. All such insurance policies are and shall up to and including the
Closing Date remain in force, in conformity with law, and are and shall be
enforceable. Neither Seller nor the Company, as the case may be, is or will
be in default in any material respect under the terms of such policies, and
either the Seller or the Company, as appropriate, has timely served, and
shall timely serve, notice of all events or information required in
connection with such policies. Seller has provided to Buyer a true copy of
each insurance policy referred to in Attachment 4.9.
4.10 LITIGATION. There are no judgments, decrees, suits, actions or
proceedings pending or, to Seller's knowledge, threatened, against the
Company or against the Seller in connection with the Transferred Assets or
the Manufacturing Operation.
4.11 PERMITS; COMPLIANCE WITH LAWS. All of the permits, licenses and
authorizations (collectively, "PERMITS") required for the conduct of
Company's activities are in full force and effect and no notice has been
received by Seller or the Company relating to, and to the Seller's knowledge,
no grounds exist which would give rise to, termination, cancellation,
withdrawal or amendment of any such Permits. The Company is in material
compliance with the terms and conditions of all such Permits.
4.12 ENVIRONMENTAL MATTERS. There are no proceedings or governmental
investigations concerning or against Seller or the Company arising from or
relating to environmental matters threatened or pending before any court,
tribunal or governmental instrumentality, and no citations, summons,
directives, orders or notices of a threatened or actual violation of any law,
decree, rule, regulation, permit or order, other requirement, policy or
direction of any governmental authority by or against Seller or the Company
relating to environmental matters, and no liens on the assets of the Company
arising from or related to environmental matters, and
11
no governmental actions resulting in the imposition of any such lien on any
of the Real Property. Seller and the Company are in compliance in all
material respects with environmental, occupational health and safety statutes
and regulations and Permits; and no conditions or circumstances exist and no
acts or omissions have occurred at, on, from or near, any of the real
property owned by the Seller on which the Facility is located (the "Real
Property") or affecting the Real Property, the Company or the Manufacturing
Operation which could be reasonably expected to result in any material
investigation, lawsuit, arbitration or regulatory suit or action alleging
harm, injury or non-compliance with any environmental laws, rules or
regulations or requiring any cleanup or other action with respect to the
presence of, release of or liability relating to hazardous materials, wastes
or substances, pollutants, contaminants or other environmentally regulated
materials, substances or matters (collectively, the "Environmental
Substances"). Seller has provided Buyer with a copy of all information which
it can make available which relate to environmental matters relevant to the
Real Property and the Manufacturing Operation including, without limitation,
all environmental reports, data, surveys, audits, test results, analyses and
presentations and all descriptions of known, suspected or possibly present
Environmental Substances.
4.13 WORKERS' INJURIES. There are no pending claims, or to Seller's
knowledge threatened claims, related to the Transferred Employees for
compensation for any injury, disability or illness resulting from their
employment with Company.
4.14 TRADE UNION ACTIVITY. During the last three years there have not been
any strike, work stoppage or labor troubles involving those of Seller's
employees who will become employees of the Company.
4.15 EMPLOYEES; EMPLOYEE BENEFITS. Attachment 1.5 contains (a) the name,
job title, current monthly gross rate of pay and date and amount of last
salary increase of each of the Transferred Employees. All benefits, in cash
or in kind, routinely provided to the Transferred Employees are also
described in Attachment 1.5. Seller and, from and after the transfer of the
Transferred Assets to the Company in accordance with Section 1.2, the Company
will be in full compliance with all statutory or regulatory requirements with
respect to the Transferred
12
Employees. There are no complaints, claims or charges outstanding, or to the
best of the Seller's knowledge, anticipated, nor are there any orders,
decisions, judgments or convictions against or in respect of the Company or
Seller in connection with the Manufacturing Operations, under any employment
legislation in connection with the Transferred Employees. All required
accruals for salaries and benefits have been reflected on the books and
records of Seller and the Company in respect of the Manufacturing Operation.
4.16 TAXES. Seller has filed with the appropriate governmental agencies the
tax returns and other documents required to be filed. Such tax returns and
documents are materially correct and have been prepared in accordance with
applicable laws, and Seller has paid or challenged in each case on a timely
basis, all taxes, including fees and contributions. Seller has withheld all
taxes required to have been withheld and paid in connection with the amounts
paid or owing to any employee, independent contractor, creditor, stockholder
or other third party.
4.17 CONSENTS AND APPROVALS. There is no requirement under any contract to
which the Seller or the Company is a party or by which either of them is
bound to give any notice to, or to obtain the consent or approval of, any
party to such contract in connection with the consummation of the
transactions contemplated by this Agreement.
4.18 ABSENCE OF CHANGES. Except for the January operating results which
were negatively impacted by the SAP implementation and the existing strike at
the Brazilian Customs Department, since December 31, 1999, Seller or the
Company, as the case may be, has carried on the Manufacturing Operation in
the ordinary course of business consistent with past practice and there has
not been:
(a) any material adverse change in the condition, assets, liabilities,
operations, earnings, business or prospects of the Manufacturing Operation;
(b) any damage, destruction or loss affecting the Transferred Assets;
13
(c) any obligation or liability incurred by the Seller or the Company in
connection with the Manufacturing Operation other than those incurred in the
ordinary and normal course of business, consistent with past practice;
(d) any payment, discharge or satisfaction of any liability or obligation of
the Seller or the Company in connection with the Manufacturing Operation
other than payment of accounts payable and tax liabilities incurred in the
ordinary and normal course of business, consistent with past practice;
(e) any labor trouble adversely affecting the Manufacturing Operation;
(f) any license, sale, assignment, transfer, disposition, pledge, or granting
of any encumbrance or lien on or in respect of any of the Tranferred Assets,
other than sales of Products to customers in the ordinary and normal course
of business of the Manufacturing Operation;
(g) any material write-down of the value of any inventory other than in
accordance with the ordinary and normal course of business, consistent with
past practice;
(h) any general increase in the compensation of employees of Seller or the
Company in connection with the Manufacturing Operation;
(i) any capital expenditure or commitments of Seller or the Company in
connection with the Manufacturing Operation in excess of the Fiscal Year 2000
Capital Expenditure Plan, as described in Attachment 4.18(i);
4.19 DECEMBER BALANCE SHEET. The December Balance Sheet attached hereto as
Attachment 1.2-2 has been prepared in accordance with accounting principles
described in Attachment 4.19 applied on a basis consistent with prior
periods, is correct and complete and presents fairly the assets, liabilities
(whether accrued, absolute, contingent or otherwise) and financial condition
of the Transferred Assets and the Manufacturing Operation as at December 31,
1999. When prepared, the Closing Balance Sheet will be prepared in accordance
with
14
accounting principles described in Attachment 4.19 applied on a basis
consistent with those used in the preparation of the December Balance Sheet
and will present fairly the assets, liabilities and financial position of the
Transferred Assets and the Manufacturing Operation as at the Closing Date.
4.20 ACCURACY OF STATEMENTS. None of the information contained in the
representations, warranties or covenants of Seller in this Agreement
(including Attachments) contains any untrue statement of fact or omits to
state a fact necessary to make the statements contained herein, in light of
the circumstances under which they were made, not misleading. All documents
which Seller has provided to Buyer are true, complete and correct copies of
the documents they purport to represent.
ARTICLE 5
INDEMNIFICATION
5.1 LIABILITY. In accordance with the procedures set forth in Section 5.2
below and subject to the limitations set forth in Section 5.3 below, ▇▇▇▇▇▇
agrees to indemnify and hold Buyer and the Company harmless from any loss or
damage resulting from or due to breach of any representation, warranty,
covenant or agreement of Seller contained herein or in any document delivered
hereunder.
5.2 INDEMNIFICATION PROCEDURES. If Buyer or the Company shall become
aware of facts which give rise or threaten to give rise to Seller's
obligation to indemnify Buyer or the Company pursuant to Section 5.1 hereof
(hereinafter referred to as an "EVENT SUBJECT TO INDEMNIFICATION"),
regardless of whether or not the Event Subject to Indemnification involves a
third party, Buyer shall send written notice (the "NOTIFICATION") to Seller
promptly after discovery of the Event Subject to Indemnification disclosing
the details thereof. Subject to Paragraph (b) below, failure to notify Seller
shall release Seller from any liability that it may have to Buyer and/or the
Company. Seller shall respond within thirty (30) calendar days of receipt of
the Notification (or sooner, if a third party is involved and circumstances
require, in which case a shorter period shall be stated in the Notification).
Seller shall only be responsible
15
for indemnification hereunder if the respective claim is awarded by means of
a final and irrevocable judgement, not subject to any further defense or
appeal.
(a) If the Event Subject to Indemnification does not involve any third
party, then Seller's response shall indicate its intention to (i) pay
the amount involved or commence any required remedial measures in the
Event Subject to Indemnification; (ii) refuse to accept the event as an
Event Subject to Indemnification; or (iii) discuss the matter.
-- If option (i) is elected, Seller will either pay the amount
involved, or commence any required remedial measures in the Event
Subject to Indemnification, in either case within 30 days from the
date of Notification.
-- If option (ii) is elected, Buyer or the Company may, at its option,
commence any required action to pursue or defend its rights and
remedies.
-- If option (iii) is elected, the parties shall discuss the issues
involved during a period of 30 days from receipt of the
Notification, and if they reach an agreement, any payment required
thereby shall be made (in the case of payment) or commenced (in the
case of remedial measures) by Seller to Buyer or the Company within
45 calendar days from receipt of the Notification.
(b) If the Event Subject to Indemnification involves any third party, then
Seller's response shall indicate its intention (i) to assume the defense
of the litigation or proceeding, which it shall have the right to do, in
which case, Buyer and the Company shall each have the right to retain
their own counsel at their own expense; or (ii) not to assume the
defense of the litigation or proceeding, in which case it shall
nevertheless be liable for expenses of Buyer and/or the Company in
connection therewith.
(c) Any failure by Seller to respond within the strict time limits specified
in this Section 5.2 shall give rise to further liability only if and to
the extent that Buyer or the Company can
16
CONFIDENTIAL MATERIALS OMITTED AND
FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION.
ASTERISKS DENOTE OMISSIONS.
demonstrate that the defense of such action is prejudiced by such
failure to respond in timely fashion.
5.3 LIMITATIONS ON INDEMNITIES. The following limitations on the agreement
to indemnify set forth in Section 5.1 above shall apply:
(a) The aggregate losses subject to indemnification hereunder shall not
exceed **** of the Purchase Price.
(b) Seller shall not be liable to Buyer for any single event subject to
indemnification unless it results in an actual loss in an amount equal
to or greater than ****.
(c) As to events subject to indemnification that result in actual losses
equal to or greater than ****, Seller shall not be required to make
payment until the aggregate of such losses equals or exceeds ****, for
which purpose Buyer shall notify Seller of each such actual loss at
which ▇▇▇▇ ▇▇▇▇▇▇ shall be required to make payment for all losses
subject to the provisions of Section 5.3(b) above including the first
****.
(d) The indemnification obligations of Seller contained in this Agreement
shall terminate **** after the Closing Date except for the
indemnification obligations in respect of (i) the representations and
warranties contained in Sections **** and the **** which shall survive
****; and (ii) the representation and warranty in section **** which
shall survive until ****.
17
(e) If any indemnifiable loss is a tax deductible item for the Company
and/or Buyer, the indemnification hereunder shall be reduced by the tax
rate which is applicable at the time of the payment.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF BUYER
▇▇▇▇▇ makes the following representations and warranties to Seller:
6.1 CORPORATE AUTHORITY. ▇▇▇▇▇ has the legal right, power and authority to
enter into this Agreement. The execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby have been duly
authorized by all necessary corporate decisions or other action of Buyer.
This Agreement constitutes the legal and binding obligation of Buyer,
enforceable against Buyer in accordance with its terms.
6.2 NO RESTRICTIONS. Neither the execution of this Agreement nor the
consummation of the transactions contemplated hereby will conflict with or
result in a breach of, or give rise to a right of termination of, or
accelerate the performance required by, any terms of any court order, consent
decree, license or other agreement or permit to which Buyer is subject or a
party, nor constitute a default thereunder, nor result in the creation of any
security interest upon any of Buyer's assets, nor violate any of the
provisions of the by-laws of Buyer. Nothing is pending or threatened against
Buyer which might prevent the consummation of any of the transactions
contemplated by this Agreement.
6.3 GOVERNMENT APPROVALS. No action, consent or approval of, registration or
filing with, or any other action by, any governmental authority will be
required in connection with the performance by Buyer of this Agreement or in
connection with the transactions contemplated hereby, except for the ones
described in Article 9 below.
18
6.4 FINANCIAL CONDITION. Buyer has the financial strength and resources to
enter into this Agreement and to consummate the transactions contemplated
herein with the full payment of the Purchase Price under the terms and
conditions provided for herein.
ARTICLE 7
COVENANTS
7.1 (a) ACCESS TO THE MANUFACTURING OPERATION. Between the date hereof and
the Closing Date, the Seller shall afford the Buyer and its authorized
representatives free and unrestricted access to the Manufacturing Operation,
the Facility and the documents of the Company and the Manufacturing
Operation. At the Buyer's request, the Seller shall co-operate with the Buyer
in arranging any such meetings as the Buyer may reasonably request with
Transferred Employees. The Seller shall conduct, in co-operation with the
representatives or consultants of the Buyer, such physical review of the
equipment used by it in connection with the Manufacturing Operation as is
necessary so as to enable the confirmation of the values carried on the
December Balance Sheet to the reasonable satisfaction of the Buyer. The
exercise of any rights of inspection by or on behalf of the Buyer under this
Section 7.1 shall not mitigate or otherwise affect the representations and
warranties of the Seller hereunder which shall continue in full force and
effect as provided herein.
(b) DELIVERY OF BOOKS AND RECORDS. At the closing of the sale of the
Quotas hereunder, the Seller shall deliver to the Buyer all of the books and
records of the Company and the Manufacturing Operation.
(c) CONDUCT PRIOR TO CLOSING. Without in any way limiting any other
obligations of the Seller and the Company hereunder, during the period from
the date hereof to and including the Closing Date:
(i) CONDUCT BUSINESS IN THE ORDINARY COURSE. The Seller and the
Company, as appropriate, shall conduct the Manufacturing Operation in the
ordinary and normal
19
course of business, consistent with past practice, and neither the
Seller nor the Company shall, without the prior written consent of
the Buyer, enter into any transaction or refrain from doing any
action which, if effected before the date of this Agreement, would
constitute a breach of any representation, warranty, covenant or
other obligation of the Seller or Company contained herein, and
provided further that neither the Seller nor the Company shall
enter into any material contracts relating to the Manufacturing
Operation without the consent of the Buyer;
(ii) PRESERVE GOODWILL. The Seller and the Company shall preserve
intact, the Manufacturing Operation and the Transferred Assets;
(iii) DISCHARGE LIABILITIES. Each of the Seller and the Company
shall pay and discharge its liabilities in the ordinary course of
business, in accordance and consistent with previous practice,
except those it contests in good faith and through appropriate
means;
(iv) CORPORATE ACTION. Each of the Seller and the Buyer shall take,
and the Seller shall cause the Company to take, all necessary
corporate action, steps and proceedings to approve or authorize,
validly and effectively, the execution and delivery on its part of
this Agreement, the Supply Agreement, the Transition Services
Agreement and the Lease and the other agreements and documents
contemplated hereby and to complete the sale and purchase of the
Quotas contemplated hereby;
(v) REASONABLE EFFORTS. The Seller shall use its commercially
reasonable efforts to satisfy the conditions contained in Section
9.1 and the Seller and the Buyer shall use its commercially
reasonable efforts to satisfy the conditions in Section 9.2.
20
ARTICLE 8
CONDITIONS PRECEDENT TO CLOSING
8.1 BUYER'S CONDITIONS PRECEDENT. Buyer shall not be obligated to perform
under this Agreement unless the following conditions have been met on or
before the Closing Date or unless they are waived by Buyer in writing:
(a) The representations and warranties of Seller made in this Agreement are
true and correct on the Closing Date as though such representations and
warranties were made on that date;
(b) Seller shall have provided to the Company all information reasonably
required on its part to prepare an application for approval of the
transaction contemplated hereunder to be submitted to the Brazilian
antitrust authorities, as set forth in Article 9 below;
(c) All of the covenants contained in the Agreement to be complied with or
performed by the Seller and the Company at or before the closing of the
transaction of purchase and sale of the Quotas contemplated hereby shall
have been complied with or performed and certificates of an officer or
authorized signatory of the Seller and the Company, dated the Closing
Date, to that effect shall have been delivered to the Buyer, in form and
substance reasonably satisfactory to the Buyer;
(d) Except for approval of transaction contemplated in Article 9 herein,
there shall have obtained from all appropriate governmental or other
regulatory authorities, such licenses, permits, consents, approvals,
certificates, registrations and authorizations as are required to be
obtained by Seller and Buyer to permit the change of ownership of the
Quotas pursuant to this Agreement.
(e) Seller shall give and/or obtain all required notices, consents and
approvals, in each case in form and substance satisfactory to Buyer,
acting reasonably.
21
(f) No legal or regulatory action or proceeding shall be pending or
threatened by any person to enjoin, restrict or prohibit the purchase and
sale of the Quotas contemplated hereby;
(g) No material damage by fire or other hazard to the whole or any material
part of the Transferred Assets shall have occurred between the date hereof
and the Closing Date;
(h) The Transferred Assets and the Assigned Contracts shall have been duly
transferred and assigned by Seller to the Company in accordance with Section
1.2 hereof;
(i) Seller shall have executed a supply agreement substantially in the form
of the draft Supply Agreement annexed as Exhibit 8.1(i)-1 (the "SUPPLY
AGREEMENT"), as well as the Transition Services Agreement substantially in
the form of the draft Transition Service Agreement annexed as Exhibit
8.1(i)-2;
(j) Seller shall have executed a Lease Agreement with the Company
substantially in the form of the draft Lease Agreement annexed as Exhibit
8.1(j).
8.2 SELLER'S CONDITIONS PRECEDENT. Seller shall not be obligated to
perform under this Agreement unless the following conditions have been met on
or before the Closing Date or unless they are waived by Seller in writing:
(a) The representations and warranties of Buyer made in this Agreement are
true and correct on the Closing Date as though such representations and
warranties were made on that date;
(b) Buyer shall have provided to the Company all information reasonably
required on its part to prepare an application for approval of the
transaction contemplated hereunder to be submitted to the Brazilian and
any other relevant antitrust authorities, as set forth in Article 9 below;
(c) All of the covenants contained in the Agreement to be complied with or
performed by the Buyer at or before the Closing of the transaction of
purchase and sale of the Quotas
22
contemplated hereby shall have been complied with or performed and
certificates of an officer or authorized signatory of the Buyer, dated
the Closing Date, to that effect shall have been delivered to the Seller
in form and substance reasonably satisfactory to the Seller;
(d) no legal or regulatory action or proceeding shall be pending or
threatened by any person to enjoin, restrict or prohibit the purchase and
sale of the Quotas contemplated hereby;
(e) Company shall have executed the Supply Agreement substantially in the
form of the draft Supply Agreement annexed as Exhibit 8.1(i)-1 with
Seller, as well as the Transition Services Agreement substantially in the
form of the draft Transition Services Agreement annexed as Exhibit
8.1(i)-2 necessary for the implementation of this Agreement; and
(f) the Company shall have executed a Lease Agreement with Seller as
specified by Exhibit 8.1(j);
(g) Buyer shall have paid the Purchase Price on the Closing.
ARTICLE 9
ANTITRUST LAW COMPLIANCE
9.1 APPROVAL OF TRANSACTION. Buyer or one of its subsidiaries and/or the
Company shall promptly file such information and seek such approvals with the
Brazilian antitrust authorities ("▇▇▇▇"), as shall be required with respect
to the transactions contemplated herein under the antitrust laws and
regulations of Brazil. Seller agrees to make available to Buyer and/or
Company such information as may reasonably be requested relative to Seller's
activities, assets and property as may be required to prepare such filings
and to file any additional information requested by such agencies under such
laws, rules or regulations.
9.2 EFFECT OF NON-APPROVAL. If, after all commercially reasonable
efforts of both parties to convince them otherwise, ▇▇▇▇ refuses to accept
the transaction as contemplated hereunder or
23
imposes restrictions on the transaction that are unacceptable to the parties,
the Parties shall in good faith seek to modify their mutual contractual
arrangements to the extent reasonably necessary to satisfy the requirements
of the Brazilian antitrust authorities.
ARTICLE 10
MISCELLANEOUS
10.1 NON-COMPETE. Seller and its affiliates may not, during a period of
five (5) years following the Closing Date, compete directly or indirectly
with Buyer in the provision of third party contract manufacturing services
related to the Products, within Brazil. Such non-compete covenant shall not
apply in the event Buyer violates the Supply Agreement in a material respect
or terminates said Agreement for any reason.
10.2 BUYER NOT TO SELL MANUFACTURING OR THE COMPANY. ▇▇▇▇▇ agrees that
until the termination of the Supply Agreement, it will not sell the Company
or cause the Company to sell the Manufacturing Operation or otherwise
outsource the Manufacturing Operation, partially or totally, to a third party
(excluding Buyer's affiliates), without the Seller's prior written consent.
In addition Buyer shall advise Seller of any change of control of Buyer. For
the foregoing purpose, a "change of control of Buyer" shall occur when a
competitor of Celestica Inc. or Seller becomes the direct of indirect owner
of a majority of the voting shares of Buyer. When a change of control of
Buyer occurs while the Supply Agreement is in force, Seller shall have the
right to, immediately, at its sole discretion, (i) terminate the Supply
Agreement, without payment of any penalty and/or indemnification, and/or (ii)
purchase the assets related to the Manufacturing Operation, free and clear of
any liens or encumbrances, through purchasing 100% of the quotas of the
Company at the price corresponding to the net book value of its assets, and
accepting the transfer of all of the employees then employed in the
Manufacturing Operation. For the purpose of foregoing item (ii), Buyer shall
maintain the equipment related to the Manufacturing Operation in a manner
consistent with past practices and the inventories shall not include any
material items that are below standard quality or of a quality or quantity not
24
useable or saleable in the normal course of business of the Manufacturing
Operation unless the value of such inventory has been written down on the
Company's financial statements.
10.3 TRANSITION SERVICES AGREEMENT. The parties shall enter into a
Transition Services Agreement, with pricing to be based on market terms, to
cover services listed in Attachment 10.3.
10.4 CONFIDENTIALITY. Each party shall hold confidential all information
obtained in connection with this Agreement with respect to the other party,
in accordance with the terms and conditions set forth in the Confidentiality
Agreement executed by Seller and Buyer on March 2nd, 2000.
10.5 FURTHER ASSURANCES. The parties agree to execute such other documents
or agreements and to do such other things and take such other actions as may
be necessary to implement this Agreement and the transactions contemplated
hereby.
10.6 NOTICES. Any notice required to be given under this Agreement must be
given in writing and will be effective on receipt when delivered by
registered airmail or by facsimile confirmed by the sending of the original
by registered airmail to the party at the address stated below or to such
other address as such party may designate by written notice in accordance
with the provisions of this Section:
to Seller: NEC do Brasil S.A.
Rodovia Presidente ▇▇▇▇▇, ▇▇. ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇, BRAZIL
Fax: (▇▇-▇▇) ▇▇▇▇-▇▇▇▇
Attention: Industrial Director
25
to Buyer: Celestica, Inc.
▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: Vice President and General Counsel
With copies to: Celestica do Brasil Ltda.
Rodovia SP 101, Trecho Campinas/Montemor
Predios 10, 20 e 31
Hortolandia, State of Sao Paulo, Brazil
Fax: (▇▇-▇▇) ▇▇▇▇-▇▇▇▇
and
I. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
10.7 ENTIRE AGREEMENT. This Agreement, with all Attachments and Exhibits,
is the parties' entire agreement with respect to the subject matter hereof.
It supersedes the Original Agreement and all prior or contemporaneous oral or
written communications, proposals and representations between the parties
with respect to its subject matter and prevails over any conflicting or
additional terms of any quote, order, acknowledgment or similar
communications between the parties during the term of this Agreement. No
modification to this Agreement will be binding, unless in writing and signed
by a duly authorized representative of each party.
26
10.8 SECTION HEADINGS. The Section headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning
or interpretation of this Agreement.
10.9 GOVERNING LAW AND JURISDICTION. This Agreement shall be governed by
and construed and enforced in accordance with the laws of Brazil.
10.10 DISPUTE RESOLUTION. The parties shall use their reasonable efforts to
settle any claim, controversy or dispute arising from the execution of, or in
connection with, this Agreement. In the event that no settlement can be
reached through negotiation between the parties within thirty (30) days of
the submission of such matter by one of the parties, then either party may
submit such dispute to the Arbitration Chamber of the Brazil-Canada Chamber
of Commerce, in Sao Paulo, Brazil, for arbitration in accordance with the
Brazilian Law and rules of the foregoing Arbitration Chamber.
10.10.1 Each party shall be entitled to elect one (1) arbitrator (and a
substitute for him/her) within 30 (thirty) days of submission of the matter
to arbitration. The two (2) arbitrators shall jointly designate within thirty
(30) days a third arbitrator to preside over the arbitration. If either party
fails to appoint an arbitrator or if the arbitrators fail to elect the third
one, then one arbitrator shall be designated by the President of the
Arbitration Chamber of the Brazil-Canada Chamber of Commerce, in Sao Paulo,
Brazil.
10.10.2 The arbitral award is to be given in writing, within sixty (60) days
from the constitution of the arbitration tribunal, or from the substitution
of an arbitrator. It shall be final and binding upon all the Parties and
shall be enforceable in accordance with its terms and conditions.
10.10.3 The cost of the arbitration, including a reasonable allowance for
attorneys' fees, shall be borne by the losing party or as otherwise specified
in the ruling of the arbitration tribunal. All proceedings and records of the
arbitration shall be conducted and maintained in Portuguese.
27
10.10.4 The parties agree that the award is to be considered as a
settlement of the dispute between them and shall accept it as the true
expression of their own determination in connection therewith.
10.10.5 The parties agree that either party may, in certain circumstances,
need to obtain immediate relief from the court. Therefore, the filing for and
obtaining of injunctive relief (or another type of remedy which cannot be
obtained from an arbitration tribunal under Brazilian law) in connection with
this Agreement shall be accepted, and shall not be considered a breach
hereof. In this case, the competent court shall be the court of Sao Paulo,
State of Sao Paulo, Brazil.
10.11 EXPENSES. Whether or not the transactions contemplated hereby are
consummated, the parties hereto shall pay their own respective expenses.
10.12 SEVERABILITY. If any provision of this Agreement is held by any
court of competent jurisdiction to be illegal, void or unenforceable, such
provision shall be of no force and effect, but the illegality or
unenforceability of such provision shall have no effect upon and shall not
impair the enforceability of any other provision of this Agreement.
10.13 WAIVER. The rights and remedies of the parties are cumulative and
not alternative. Neither the failure nor any delay by any party in exercising
any right, power or privilege under this Agreement will operate as a waiver
of such right, power or privilege (collectively, "RIGHT"), and no single or
partial exercise of any Right will preclude any other or further exercise of
such or other Right. To the maximum extent permitted by applicable law (a) no
claim or right arising out of this Agreement can be discharged by one party,
in whole or in part, by a waiver or renunciation of the claim or right unless
in writing signed by the other party, (b) no waiver that may be given by a
party will be applicable except in the specific instance for which it is
given, and (c) no notice to or demand on one party will be deemed to be a
waiver of any obligation of such party or of the right of the party giving
such notice or demand to take further action without notice or demand as
provided in this Agreement.
28
10.14 PUBLIC ANNOUNCEMENTS. Representatives of the parties shall consult
with each other before issuing any press releases or making any other public
statements with respect to any transaction contemplated by this Agreement.
10.15 ASSIGNMENT. The respective rights and obligations of the parties
shall not be assignable by Buyer or Seller without the prior written consent
of the other party; provided that the Buyer may assign its rights and
obligations hereunder to any wholly-owned subsidiary of Buyer.
10.16 COUNTERPARTS. This Agreement shall be executed in five
counterparts, each of which shall be deemed an original, but all of which
taken together shall constitute one and the same instrument.
10.17 LANGUAGE; ATTACHMENTS. This Agreement shall be executed in English
and Portuguese. In the event of a discrepancy between the English and the
Portuguese version, the English-language version shall prevail. The
Attachments to this Agreement shall be in Portuguese.
IN WITNESS WHEREOF, the parties have duly executed this Stock Purchase
Agreement before two witnesses, as of the date first above written.
CELESTICA INC.
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
NEC DO BRASIL S.A.
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Executive Vice President
29
WITNESSES:
1. /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇
2. /s/ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
30
ATTACHMENTS
F Products
1.2-1 Transferred Assets
1.2-2 December Balance Sheet
1.5 Transferred Employees
4.1 Seller's Bylaws
4.7 Contracts
4.9 Insurance Policies
4.18(i) Fiscal Year 2000 Capital Expenditure Plan
4.19 Accounting Principles
9.3 Transition Services
EXHIBITS
8.1(i)-1 Supply Agreement
8.1(i)-2 Transition Services Agreement
8.1(j) Lease Agreement
31
