ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT (the "Agreement"), dated as of October 24,
2007, is made by and among C&D TECHNOLOGIES, INC., a Delaware corporation ("C&D"
or "Seller") and CROWN BATTERY MANUFACTURING CO., an Ohio corporation ("CBMC" or
"Buyer").
RECITALS
WHEREAS, subject to the terms and conditions hereof, Seller desires to
sell, transfer and assign to Buyer certain assets of its Motive Power Division
business (the "Motive Power Division Business"), including the assets of
Seller's sales/service/distribution center operations located in Mississauga,
Ontario, Canada, Buffalo, NY, USA and Santa Fe Springs, CA, USA (collectively,
the "Facilities"), and Buyer desires to purchase from Seller such assets, with
the exception of certain excluded assets, upon the terms and conditions and for
the consideration hereinafter set forth, which consideration consists of cash
and the assumption of certain liabilities.
NOW, THEREFORE, in consideration of the foregoing and the representations,
warranties and mutual agreements herein contained, the parties hereto agree as
follows:
ARTICLE I
PURCHASE AND SALE OF ASSETS
1.1 Purchase and Sale of Assets. Subject to the terms and conditions set
forth in this Agreement, Seller will sell, assign, transfer, convey and deliver
to Buyer, and Buyer will purchase, acquire and accept from Seller, at the
Closing for the consideration hereinafter set forth in Section 1.4, all right,
title and interest of Seller in and to the following listed assets, properties
and rights in connection with the Motive Power Division Business (the "Purchased
Assets"):
(i) the real property leases and/or subleases listed in Schedule
1.1(i) which, together with Seller's structures, fixtures and other improvements
thereon and the appurtenances thereto and all rights and privileges pertaining
thereto, are hereinafter referred to as the "Real Property Leases";
(ii) the machinery, equipment, telecommunications system, furniture,
tools, supplies, hardware, spare parts and other tangible personal property
listed in Schedule 1.1(ii), (hereinafter referred to collectively as the
"Equipment");
(iii) all finished battery inventory listed in Schedule 1.1(iii)
(hereinafter referred to collectively as the "Inventory")(to be priced at
Closing at FIFO book value);
(iv) certain C-LINE specific manufacturing equipment listed in
Schedule 1.1(iv)(also referred to herein as "Equipment");
(v) electronic and hardcopy marketing and selling materials pertaining
to the C-LINE, V-LINE, VELOCITY and LIBRA motive battery products and C&D motive
battery chargers, including brochures, sales literature and other promotional
material;
(vi) Customer lists and sales transactions history for the C-LINE,
V-LINE, VELOCITY and LIBRA motive battery products and C&D motive battery
chargers for the twelve-month period prior to the date of this Agreement;
(vii) any current technical materials and operation manuals relating
to the Purchased Assets; and
(viii) to the extent freely assignable, transferable or licensable,
without the payment by Seller of additional fees and royalties, all rights and
interests of Seller in and to the computer software programs and databases (and
documentation related thereto) that are used exclusively at the Facilities but
are not used by Seller in its operations in locations other than the Facilities,
as listed in Schedule 1.1(viii) (the "Facilities Software").
1.2 Excluded Assets. The following assets relating to the Motive Power
Division Business and the Facilities (the "Excluded Assets") are not included in
the Purchased Assets:
(i) all claims of the Seller with respect to transactions occurring or
arising prior to the Closing Date, including without limitation any rights or
claims of the Seller with respect to any tax refund, carryback or carryforward
or other credits to the Seller for periods ending on or prior to the Closing;
(ii) all cash and cash equivalents held by the Seller as of the
Closing;
(iii) all accounts receivable, notes receivable and other receivables
held by or of the Seller;
(iv) all prepaid expenses and deferred charges relating to the Motive
Power Division Business;
(v) all refunds or rebates paid or payable by vendors or suppliers to
Seller relating to purchases for the Facilities;
(vi) any security deposit monies deposited by Seller pursuant to or in
connection with the requirements of the Real Property leases;
(vii) all trade names, trademarks or logos bearing the letters or
marks "C&D" and "C&D Technologies";
(viii) any assets of any employee benefit plan (including, without
limitation, as defined in Section 3(3) of The Employee Retirement Income
Security Act of 1974, as amended ("ERISA")) maintained by the Seller or for any
employees of Seller;
(ix) any property, casualty, workers' compensation or other insurance
policy or proceeds or related insurance services contract relating to the
Seller, and any rights of the Seller under any such insurance policy or
contract, including, but not limited to rights to any cancellation value; and
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(x) all other assets not specifically listed as a Purchased Asset in
the Schedules to Section 1.1.
1.3 Assumed Liabilities.
(a) Except to the extent set forth in Section 1.3(b) below, at the
Closing, Buyer will assume and agree to pay, satisfy and discharge when due in
accordance with their respective terms the following obligations and liabilities
(collectively the "Assumed Liabilities"):
(i) all obligations and liabilities relating to the Purchased Assets,
including the Real Property Leases to the extent that such obligations and
liabilities did not arise, accrue or are not past due as of the date of Closing,
and other contracts and commitments listed Sections 1.1(i) through 1.1(viii) or
the Schedules thereto;
(ii) all obligations and liabilities for or relating to the
Transferred Employees (as defined in Section 7.1) for which Buyer is responsible
under Article VII;
(iii) all obligations and liabilities relating to purchase orders
issued to or accepted by Buyer after the Closing in connection with the use of
the Purchased Assets or the operation of a motive power business by Buyer; and
(iv) all obligations and liabilities for federal, state and local
taxes or assessments incurred or suffered by Buyer in connection with the use or
purchase of the Purchased Assets or the operation of a motive power business by
Buyer after Closing; and
(v) any obligations and liabilities under any employment or consulting
agreements executed prior to Closing for employees of Seller who are Transferred
Employees;
(vi) severance and/or separation pay or allowances for employees who
are Transferred Employees.
(b) Notwithstanding the provisions of Section 1.3(a) above, Seller is
retaining, and Buyer is not assuming, any obligations and liabilities of Seller,
except those provided for in Section 1.3(a) above. Without limiting the
generality of the foregoing, except as otherwise set forth in this Agreement and
subject to Section 1.3(a) above, Buyer is not assuming any obligations and
liabilities for the following:
(i) all obligations and liabilities for federal, state and local taxes
or assessments incurred or suffered by Seller in connection with the use of the
Purchased Assets or the operation of the Motive Power Division Business prior to
the Closing;
(ii) all obligations and liabilities relating to purchase orders
issued to or accepted by Seller prior to the Closing in connection with the use
of the Purchased Assets or the operation of the Motive Power Division Business
prior to the Closing;
(iii) all obligations and liabilities of Seller arising from a breach
by Seller of any contract or agreement, including Material Contracts and Real
Property Leases, prior to the Closing;
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(iv) except to the extent expressly otherwise provided in Article VII
hereof, any obligation and liability with respect to: (A) any worker's
compensation or long-term disability for employees of Seller, whether or not
such employees are Transferred Employees, if the claim arose prior to Closing;
(B) any pension costs for employees of Seller, whether or not such employees are
Transferred Employees, relating to the period of employment prior to the
Closing, or (C) any severance or separation pay or allowances for employees of
Seller who are not Transferred Employees.
(v) any obligations and liabilities under any employment or consulting
agreements executed prior to Closing for employees of Seller who are not
Transferred Employees;
(vi) any warranty obligations of Seller under any product warranty for
motive battery products manufactured, sold and delivered by Seller to third
party purchasers;
(vii) any obligations and liabilities of Seller for any inter-company
interest payable and accounts payable; and
(viii) any obligations and liabilities of Seller arising out of any
action, suit, investigation or proceeding to the extent based upon an event
occurring or a claim relating to the Purchased Assets and arising prior to the
Closing.
1.4 Purchase Price. The total purchase price for the Purchased Assets (the
"Purchase Price"), shall be Two Million Seven Hundred and Seventy Eight Thousand
Three Hundred and Sixty Eight Dollars ($2,778,368.00), which shall equal the
total of the dollars amounts set forth in the Schedules to Section 1.1 hereof,
payable to Seller as follows:
(i) Three Hundred Thousand Dollars ($300,000)in cash at the Closing by
electronic funds transferred to a deposit account with the financial institution
specified by Seller in writing to Buyer no less than twenty-four (24) hours
prior to the Closing; and
(ii) Two Million Four Hundred and Seventy Eight Thousand Three Hundred
and Sixty Eight Dollars ($2,478,368.00)for Inventory in cash within on or before
January 31, 2008 by electronic funds transferred to a deposit account with the
financial institution specified by Seller in writing to Buyer no less than
twenty-four (24) hours prior to the Closing.
The Purchase Price shall be subject to the adjustment as set forth in
Section 5.12.
ARTICLE II
RELATED AGREEMENTS
2.1 Related Agreements. In connection with the sale and purchase of the
Purchased Assets, at or prior to the Closing, Seller and Buyer agree to enter
into the following agreements:
(i) Transfer Support. Seller and Buyer shall enter into an agreement
substantially in the form and on the terms set forth in Exhibit A hereto (the
"Transfer Support Agreement"), whereby Seller will provide to Buyer, at Buyer's
cost and expense, product engineering support and other services;
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(ii) Lease Assignment and Assumption. Seller and Buyer shall enter
into an agreement substantially in the form and on the terms set forth in
Exhibit B hereto (the "Lease Assignment and Assumption Agreement"), whereby
Seller will assign to Buyer, and Buyer will assume the obligations of the
Buffalo, NY, USA and Santa Fe Springs, CA, USA Real Property Leases;
(iii) Mississuaga Facility Sublease. Seller and Buyer shall enter into
an agreement substantially in the form and on the terms set forth in Exhibit C
hereto (the "Mississuaga Facility Sublease Agreement"), whereby Seller will
sublease to Buyer the portion of the Mississuaga, Ontario Facility utilized by
Seller's Motive Power Division business;
(iv) Additional Equipment and Materials Purchase. Seller and Buyer
shall enter into an agreement substantially in the form and on the terms set
forth in Exhibit D hereto (the "Equipment and Materials Purchase Agreement"),
stating the pricing and other terms and conditions pursuant to which Buyer may
purchase from Seller certain additional manufacturing equipment, raw materials,
work-in-process, inventories, stores and supplies, wherever located, which are
owned by Seller and are used exclusively in its Motive Power Division Business.
(v) Trademark/Know-How License. Seller and Buyer shall enter into an
agreement substantially in the form and on the terms set forth in Exhibit E
hereto (the "Trademark/Know-How License Agreement"), whereby Seller will grant
Buyer license to manufacture and sell C-LINE battery products, and to sell
V-Line and Velocity battery products for and in consideration of the payment of
fees or royalties by Buyer to Seller;
(vi) Purchase and Reseller Agreement. Seller and Buyer shall enter
into an agreement substantially in the form and on the terms set forth in
Exhibit F hereto (the "Purchase and Reseller Agreement"), stating the pricing
and other terms and conditions pursuant to which Buyer may purchase from Seller
FERRO Chargers and LIBRA battery products manufactured by Seller and resell such
products to Motive Power Division Business markets.
(vii) Warranty Service. Seller and Buyer shall enter into an agreement
substantially in the form and on the terms set forth in Exhibit G hereto (the
"Warranty Service Agreement"), stating the pricing and other terms and
conditions pursuant to which Seller shall appoint Buyer, and Buyer shall provide
warranty service, as the authorized warranty service provider for
Seller-manufactured Motive Power Division Business batteries and chargers sold
and delivered by Seller to third party customers prior to Closing.
(viii) CPV Supply Agreement. Seller and Buyer shall enter into an
agreement substantially in the form and on the terms set forth in Exhibit H
hereto (the "CPV Supply Agreement"), stating the pricing and other terms and
conditions pursuant to which Buyer shall manufacture for and supply to Seller,
Seller's CPV battery products for Seller's sale of such products to its
customers.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer the following:
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3.1 Organization, Qualification. Seller is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
and has all requisite corporate power and authority to own all of its properties
and assets, including, without limitation, the owned Purchased Assets and to
carry on the Motive Power Division Business as it is presently being conducted.
Seller is duly qualified and in each jurisdiction in which the conduct of its
business or the ownership or leasing of its assets makes such qualification
necessary, except in those jurisdictions where the failure to be duly qualified
and in good standing would not have a material adverse effect on the Purchased
Assets or the Motive Power Division Business.
3.2 Authority Relative to this Agreement. Seller has all requisite
corporate power and authority under its articles of incorporation and by-laws,
each as amended to date, and applicable laws to execute and deliver this
Agreement, the Related Agreements and every other agreement, instrument or
document to be executed and delivered by it hereunder to which it is a party
(collectively, the "Seller Documents") and to consummate the transactions
contemplated hereby and to perform its obligations hereunder. The execution,
delivery and performance by Seller of the Seller Documents, and the consummation
by it of the transactions contemplated hereby, have been duly authorized by all
necessary corporate action of the Seller and no other corporate proceedings on
the part of Seller are necessary with respect thereto. Assuming that Buyer has
duly authorized the execution and delivery of the Seller Documents, this
Agreement constitutes, and each of the other Seller Documents, when executed and
delivered by Seller, will constitute, valid and binding obligations of Seller,
enforceable in accordance with their respective terms, except as the same may be
limited by (i) any applicable bankruptcy, insolvency, reorganization, moratorium
or similar law affecting creditors' rights generally or (ii) general principles
of equity, whether considered in a proceeding in equity or law.
3.3 Consents and Approvals. Except as set forth in Schedule 3.3, there is
no requirement applicable to Seller to make any registration, qualification or
filing with any Governmental Authority or any other third party as a condition
to the lawful consummation by Seller of the transactions contemplated by the
Seller Documents. No order, writ, injunction or decree has been issued, or is
threatened to be issued, by any Governmental Authority governing or pertaining
to the Purchased Assets, which would materially adversely affect the
consummation of the transactions contemplated by the Seller Documents. Except as
set forth in Schedule 3.3, there is no requirement that any party to an
agreement to which Seller is a party or by which it is bound consent to the
consummation of the transactions contemplated by the Seller Documents.
3.4 Non-Contravention. Assuming that the consents and approvals set forth
in Schedule 3.3 are obtained, the execution and delivery by Seller of this
Agreement does not, and the execution and delivery by Seller of the Seller
Documents at the Closing and consummation of the transactions contemplated
hereby and thereby will not, (i) violate or result in a breach of any provision
of the respective articles of incorporation or by-laws of Seller, (ii) result in
a breach of, or constitute (with due notice or lapse of time, or both) a default
(or give rise to any right of termination, cancellation or acceleration or
otherwise be in conflict with or result in a loss of contractual benefits) under
the terms, conditions or provisions of any note, bond, mortgage, indenture,
license, agreement, lease or other instrument or obligation to which any Seller
is a party or by which Seller or any of the Purchased Assets may be bound, but
excluding from the foregoing clauses (ii)
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and (iii) such defaults and violations which would not have a material adverse
effect on the Purchased Assets).
3.5 Environmental Matters. There are no pending or threatened claims
arising under any Environmental Law with respect to or affecting the Purchased
Assets or the Facilities. No Hazardous Materials (as hereinafter defined) have
been generated, transported, used, disposed, stored or treated by the Seller in
connection with the Purchased Assets or the Facilities in violation of any
Environmental Law and, no Hazardous Materials have been released, discharged,
disposed, placed or otherwise caused by Seller to enter the soil or water within
any of the Facilities. Except as set forth in Schedule 3.5, none of the
Facilities contains any friable asbestos or friable asbestos-containing
material. For purposes of this Section 3.5, (i) "Hazardous Material" shall mean
any hazardous waste, hazardous material, hazardous substance, petroleum product,
oil, toxic substance, pollutant, contaminant, or other substance which poses a
threat to the environment or to human health or safety, as defined or regulated
under any Environmental Law; (ii) "Environmental Law" shall mean any
environmental law, regulation, rule, ordinance, or by-law at the foreign,
federal, state, or local level.
3.6 Licenses and Permits. Except as set forth in Schedule 3.6, Seller has
obtained all material Licenses and Permits required for the lawful operation of
the Purchased Assets. No complaint or notice of a violation of any such License
or Permit has been received by Seller or, to the knowledge of Seller, recorded
or published, and no proceeding is pending or, to the knowledge of Seller,
threatened, to revoke, cancel, rescind, modify, or refuse to renew or limit any
of the Licenses and Permits.
3.7 Compliance with Laws. Except as set forth in Schedule 3.7 or
identified in Schedule 3.5, and in addition to the representations and
warranties contained in Section 3.5 relating to Environmental Matters, those
contained in Section 3.6 relating to Licenses and Permits and those contained in
Section 3.10 relating to Real Property Leases, Seller has, operated the
Purchased Assets in substantial compliance with all applicable laws, rules,
regulations, codes, plans, policies, guidelines, injunctions, orders, rulings,
judgments or decrees of any Governmental Authority, applicable to the Purchased
Assets including, without limitation, (i) the Occupational Safety and Health Act
of 1970, as amended, (ii) Environmental Laws, and (iii) those related to
antitrust and trade matters, civil rights, zoning and building codes, public
health and safety, worker health and safety and labor and nondiscrimination, the
failure to comply with which would reasonably be expected to materially and
adversely affect the Purchased Assets. Seller is not subject to any governmental
or private litigation or proceedings involving a demand for damages or other
liability under Environmental Laws and none are threatened or anticipated.
Furthermore, except as is disclosed in Schedule 3.5 or Schedule 3.7, Seller has
not received any citation, notice of fine, penalty or unsatisfied abatement
obligation, notice or orders or other written or oral communication alleging any
presently unresolved non-compliance with any of the aforementioned laws,
regulations, policies, guidelines, orders, judgments or decrees or which may
require cleanup or other remedial work, and no action, suit, proceeding,
hearing, investigation, charge, complaint, demand, or notice has been filed or
commenced against Seller alleging any failure so to comply and, to the knowledge
of Seller, none are threatened or anticipated. Seller has timely filed all
material reports required to be filed by it under applicable Environmental Laws.
Seller has not stored or used any pollutants, contaminants or hazardous or toxic
wastes, substances or materials in violation of any Environmental Law under
which the Facilities and the Purchased Assets are
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subject. Seller has not buried, dumped, disposed, spilled or released any
Hazardous Materials on, beneath or about the Facilities in violation of
Environmental Laws that have not yet been resolved with the applicable
Governmental Authority and, except as disclosed in Schedule 4.5, no releases of
Hazardous Materials have occurred at, on, under or from the Real Property in a
manner which would reasonably be expected to require response or other
corrective action under any applicable Environmental Law.
3.8 Litigation. Except as set forth in Schedule 3.8, there are no material
actions, suits, claims, investigations or proceedings (legal, administrative or
arbitrative) pending or, to the knowledge of Seller, threatened against Seller,
or relating to the Purchased Assets, whether at law or in equity and whether
civil or criminal in nature, before any Governmental Authority or arbitral
panel, nor are there any judgments, decrees or orders of any such Governmental
Authority or arbitral panel outstanding against Seller which have, or, if
adversely determined, would reasonably be expected to have a material adverse
effect on the Purchased Assets, or which seek to prevent, restrict or delay
consummation of the transactions contemplated hereby or fulfillment of any of
the conditions of any of the Seller Documents, nor does Seller know of any
reasonable grounds for any such claim, action, suit, proceeding or
investigation.
3.9 Title to Purchased Assets. Except as set forth in Schedule 3.9, Seller
is the sole lawful owner of, and has good and valid record and marketable title
collectively to, the owned Purchased Assets, and at Closing, Seller will have
the full right to sell, convey, transfer, assign and deliver all of its right,
title and interest in the Purchased Assets owned by it or in which it has an
interest and will have such power without any restrictions of any kind
whatsoever. Except for restrictions and other encumbrances described in Schedule
3.9 or Schedule 3.10(c) and the Assumed Liabilities, all of the Purchased Assets
are free and clear of any security interests, liens, claims, charges, options,
mortgages, debts, leases (and subleases), conditional sales agreements, title
retention agreements (collectively, "Encumbrances"), and there are no filings in
any registry of deeds in any jurisdiction or under the Uniform Commercial Code
or similar statute in any jurisdiction showing Seller as mortgagor or debtor
which create or perfect or which purport to create or perfect any Encumbrance in
or on any of the Purchased Assets. Except as set forth in Schedule 3.9 or
Schedule 3.10(c), all leases of personal property of Seller to be assigned to
the Buyer (or its designees) hereunder are valid and binding in accordance with
their respective terms, and there is not, under any of such leases, any existing
default or any condition, event or act, which with notice or lapse of time, or
both, would constitute a material default or an event of default. Except as set
forth in Schedule 3.9, none of the Facilities Software, and no use by Seller
thereof infringes upon or violates any patent, copyright, trade secret or other
proprietary right of any other person, and no claim with respect to any such
infringement or violation is threatened.
3.10 Real Property.
(a) Schedule 1.1(i) includes a complete and accurate description of the
Real Property Leases.
(b) There are no pending or, to Seller's knowledge, contemplated eviction,
condemnation or eminent domain proceedings that might reasonably be expected to
affect the Real Property Leases.
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(c) Except as set forth in Schedule 3.10(c), there are no leases,
subleases, licenses, covenants, options, easements, concessions, or other
agreements, written or oral, recorded or unrecorded, granting to any party or
parties the right of use or occupancy of any portion of the Real Property
subject to the Real Property Leases.
3.11 Material Contracts. Schedule 3.11 sets forth a complete and correct
list of each contract, agreement or commitment of Seller relating to the
Purchased Assets other than the Real Property Leases:
(i) which, if breached, would reasonably be expected to affect,
materially and adversely, the Purchased Assets;
(ii) which relates to the Purchased Assets and extends more than one
year from the date hereof and is not cancelable on 30 days' notice;
(iii) which provides for the sale, lease or transfer of any interest
in, after the date hereof and other than in the Ordinary Course of Business, of
any of the Purchased Assets.
Each of the foregoing is referred to in this Agreement as a "Material
Contract." Except as set forth in Schedule 3.11, all of the Material Contracts
are in full force and effect, no Material Contract has been breached and, to the
knowledge of Seller, no event has occurred which, with or without the giving of
notice or the passage of time or both, would constitute a default by any party
thereto.
3.12 Labor Matters.
(a) Schedule 3.12(a) sets forth a complete and correct list of each
labor or collective bargaining agreement, employment contract and independent
contractor agreements to be assumed by Buyer covering Employees and independent
contractors of the Business.
(b) Except as set forth in Schedule 3.12(b), Seller has not received
notice of any allegation of unfair labor practices, or of the institution or, to
the knowledge of Seller, threatened institution of any grievance or arbitration
proceedings or of any material violation of agreements, statutes and
governmental regulations relating to employment practices at the Facilities that
remain unresolved or that have resulted in a grievance arbitration decision or a
written settlement agreement during the period of five years preceding the
execution of this Agreement. Except as set forth in Schedule 3.12(b), Seller has
not committed any unresolved violation of the federal Fair Labor Standards Act
or any other law dealing with such matters at the Facilities.
(c) Since January 1, 2006, Seller has not experienced at the Facilities
any strike, labor dispute, work stoppage, slow-down or lockout, or any other
event adversely affecting employee relations and there are no such actions
pending or threatened.
(d) Except as set forth in Schedule 3.12(b) or (d), there are no
unresolved, existing, or to Seller's knowledge, potential, claims by any one or
more of the Transferred Employees or former employees under any applicable
occupational health or safety, equal employment opportunity, or discrimination
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statutes or laws relating to employment at the Facilities and there have been no
claims that have resulted in a grievance arbitration decision or a written
settlement agreement with respect to the foregoing during the period of five
years preceding the execution of this Agreement.
3.13 [Reserved]
3.14 Taxes.
(a) Except as listed in Schedule 3.14(a), all real property and personal
property taxes, penalties and interest and related charges currently due with
respect to the Purchased Assets have been paid by Seller. All water and sewage
and other municipal charges and assessments, and any interest and/or penalties
thereon, which are currently due with respect to the Facilities or any of the
Equipment have been paid. Except for the sale of the Purchased Assets by Seller
and purchase of the Purchased Assets by Buyer pursuant to this Agreement or any
of the Related Agreements, this Agreement will not result in the imposition of
any personal property, sales tax or other similar tax upon the transfer of any
of the Purchased Assets, by any federal, state or local taxing authority.
(b) With regard to the Facilities and the Purchased Assets, except as
set forth in Schedule 3.14(b), Seller has timely paid and to the Closing Date
will have timely paid, all Taxes due and payable on or before such date.
3.15 Insurance. Schedule 3.15 sets forth the insurance coverage (and
deductibles relating thereto) currently maintained by Seller relating to the
Purchased Assets. All premiums with respect thereto have been paid, and Seller
has not received any unresolved notice of cancellation or threatened
cancellation of insurance covering any of the Purchased Assets. All such
policies are in full force and effect and provide insurance, including, without
limitation, liability insurance, in such amounts and against such risks and
liability claims as is customary for companies engaged in similar businesses to
that of Seller, to protect the employees, properties, assets of the Purchased
Assets and the Business.
3.16 Undisclosed Liabilities. Except as disclosed in this Agreement and
except for the Assumed Liabilities, at the Closing there will be no material
liabilities of Seller which would create an Encumbrance on, or result in a lien
on, the Purchased Assets (whether absolute, accrued, contingent or otherwise,
and whether due or to become due).
3.17 Product Warranty. Each Inventory product manufactured, sold, and
delivered by Seller to Buyer has been manufactured, sold and delivered in
substantial conformity with all applicable all express and implied warranties
granted by Seller, and Seller has no Liability (and there is no basis for any
present or future action, suit, proceeding, hearing, investigation, charge,
complaint, claim, or demand giving rise to any Liability) for replacement
thereof or other damages in connection therewith, except as subject to any
guaranty, warranty, or other indemnity provided in Seller's standard terms and
conditions of sale. Schedule 3.17 includes copies of applicable Inventory
product warranties and the standard C&D terms and conditions of sale for
products manufactured, sold or delivered by Seller (containing applicable
guaranty, warranty, and indemnity provisions).
3.18 Finders. No broker, finder or investment banker is entitled to any
fee or commission from Seller for services rendered on behalf of Seller in
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connection with the transactions contemplated by this Agreement, and Seller
shall be solely responsible for, and shall indemnify Buyer from and against, any
Liability with respect to any and all commissions, fees, and other charges
arising out of any claimed retention by Seller of a broker or finder in
connection with the transactions contemplated hereby except to the extent said
party was engaged by or dealt with Buyer.
3.19 Disclosure. To the best of Seller's knowledge and belief, none of the
information furnished by Seller to Buyer in connection with the representations
and warranties contained in this Article III or the transactions contemplated by
this Agreement or the Related Agreements contains any untrue statement of a
material fact or omits to state any material fact necessary in order to make the
statements and information contained therein not materially misleading which
would have a material adverse effect on the Purchased Assets.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller the following:
4.1 Organization, Qualification. (a) Buyer is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Ohio and has the requisite power and authority to own all of its properties and
assets and to carry on its business as it is presently being conducted.
4.2 Authority Relative to this Agreement. Buyer has all requisite
corporate power and authority under its articles of incorporation and by-laws,
each as amended to date, and applicable laws to execute and deliver this
Agreement, the Related Agreements and every other agreement, instrument or
document to be executed and delivered by it in hereunder to which it is a party
(collectively, the "Buyer Documents") and to consummate the transactions
contemplated hereby and to perform its obligations hereunder. The execution,
delivery and performance by Buyer of the Buyer Documents, and the consummation
by it of the transactions contemplated hereby, have been duly authorized by all
necessary corporate action of the Buyer and no other corporate proceedings on
the part of Buyer are necessary with respect thereto. Assuming that Seller has
duly authorized the execution and delivery of the Seller Documents, this
Agreement constitutes the valid and binding obligations of Buyer, enforceable in
accordance with its terms, except as enforceability may be limited by (i) any
applicable bankruptcy, insolvency, reorganization, moratorium or similar law
affecting creditor's rights generally or (ii) general principles of equity,
whether considered in a proceeding in equity or law.
4.3 Consents and Approvals. Except as set forth in Schedule 4.3, there is
no requirement applicable to Buyer to make any registration, qualification or
filing with any Governmental Authority or any other third party as a condition
to the lawful consummation by Buyer of the transactions contemplated by the
Buyer Documents. No order, writ, injunction or decree has been issued, or is
threatened to be issued, by any Governmental Authority which would materially
adversely affect the consummation of the transactions contemplated by the Buyer
Documents. Except as set forth in Schedule 4.3, there is no requirement that any
party to an agreement to which Buyer is a party or by which it is bound consent
to the consummation of the transactions contemplated by the Buyer Documents.
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4.4 Non-Contravention. Assuming that the consents and approvals set forth
in Schedule 4.3 are obtained, the execution and delivery by Buyer of this
Agreement does not, and the consummation of the transactions contemplated hereby
and thereby will not, (i) violate or result in a breach of any provision of the
Certificate of Incorporation or by-laws of Buyer, or (ii) result in a breach of,
or constitute (with due notice or lapse of time, or both) a default (or give
rise to any right of termination, cancellation or acceleration or otherwise be
in conflict with or result in a loss of contractual benefits) under the terms,
conditions or provisions of any note, bond, mortgage, indenture, license,
agreement, lease or other instrument or obligation to which Buyer is a party or
by which Buyer, or the business conducted by Buyer, may be bound, excluding from
the foregoing clauses (i) and (ii), such defaults and violations as would not
have a material adverse effect on the business or properties of Buyer.
4.5 Litigation. Except as set forth in Schedule 4.5, there are no material
actions, suits, claims, investigations or proceedings (legal, administrative or
arbitrative) pending or, to the knowledge of Buyer, threatened against Buyer,
whether at law or in equity and whether civil or criminal in nature, before any
Governmental Authority, nor are there any judgments, decrees or orders of any
such Governmental Authority outstanding against Buyer which seek to prevent,
restrict or delay consummation of the transactions contemplated hereby or
fulfillment of any of the conditions of this Agreement or the Related
Agreements, nor does Buyer know of any reasonable grounds for any such claim,
action, suit, proceeding or investigation.
4.6 Finders. No broker, finder or investment banker is entitled to any fee
or commission from Buyer for services rendered on behalf of Buyer in connection
with the transactions contemplated by this Agreement, and Buyer shall be solely
responsible for, and shall indemnify Seller from and against any liability in
respect of any and all commissions, fees, and other charges arising out of any
claimed retention by Buyer of a broker or finder in connection with the
transactions contemplated hereby except to the extent said party was engaged by
or dealt with Seller.
4.7 Disclosure. To the best of Buyer's knowledge and belief, none of the
information furnished by Buyer to Seller in connection with the representations
and warranties contained in this Article IV or the transactions contemplated by
this Agreement or the Related Agreements contains any untrue statement of a
material fact or omits to state any material fact necessary in order to make the
statements and information contained therein not materially misleading.
ARTICLE V
ADDITIONAL AGREEMENTS
5.1 Confidentiality. Seller and Buyer agree to be bound by the terms of
the Non-Disclosure Agreement by and between Seller and Buyer dated May 5, 2007,
except to the extent that any information otherwise deemed to be confidential is
required to be disclosed to obtain consents and approvals required hereunder.
The Non-Disclosure Agreement shall survive (i) the execution of this Agreement
notwithstanding any merger clause contained herein and (ii) the Closing.
5.2 Taxes and Recording Fees. All real property taxes and special
assessments payable in respect of any of the Real Property, Equipment, and
Inventory transferred in connection with the transactions contemplated hereby
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shall be prorated between the parties on the basis of actual days elapsed
between the commencement of the current fiscal tax year and up to and including
the Closing Date, based on a 365-day year.
5.3 Proration of Lease Payments, Utility Charges and Other Payments. All
rent accrued on any of the Leases and any utility or similar charge of the
Facilities relating to the period prior to the Closing Date will be the
liability of Seller. Any installment of rent due on any of the Leases and any
utility or similar charge payable with respect to the period in which the
Closing occurs shall be prorated between the parties hereto on the basis of the
actual number of days applicable to pre-Closing and post-Closing occupancy or
use.
5.4 Allocation of Purchase Price. The parties shall use reasonable efforts
to agree to the allocation of the Purchase Price among the various assets that
constitute the Purchased Assets, and upon such agreement, the parties shall
execute IRS form 8594 in connection therewith. Each of the parties shall respect
such agreed upon allocation for all tax purposes and shall file all returns and
other documents with all taxing authorities on a basis consistent therewith.
5.5 Bulk Sales Laws. Notwithstanding the provisions of Article XI, Seller
will indemnify and hold harmless Buyer from any and all claims made by creditors
of Seller relating to provisions of the "bulk sales laws" of any state or other
jurisdiction which may be applicable to the transactions contemplated hereby and
from all costs (including reasonable attorneys' fees) incurred in the defense of
any claims made under such laws.
5.6 Materials Received After Closing. Following the Closing, Buyer may
open all mail, telegrams and other communications and packages received at the
Facilities' addresses which are addressed to Seller and deal with the contents
thereof in its discretion to the extent that the contents thereof relate to the
Purchased Assets. Buyer agrees to deliver to Seller and to treat confidentially
all other such material it receives which are addressed to Seller and does not
relate to the Purchased Assets or the Assumed Liabilities.
5.7 Retention of Books and Records. For a period of seven years after the
Closing, the parties shall retain their books or records relating to the
Purchased Assets and the Assumed Liabilities. After such seven-year period, any
party shall provide not less than forty-five (45) nor more than ninety (90)
days' prior written notice to the other parties of any proposed destruction or
disposition of any such books and records. If the recipient of such notice
desires to obtain any of the documents to be destroyed or disposed of, it may do
so by notifying the sender of such notice, in writing, at any time prior to the
scheduled date for such destruction or disposal. The notice must specify the
documents which the requesting party wishes to obtain. The parties shall then
promptly arrange for the delivery of such documents. All out-of-pocket costs
associated with the delivery of the requested documents shall be paid by the
requesting party.
5.8 Expenses. Except as otherwise provided in this Agreement, all costs
and expenses incurred in connection with this Agreement and the transactions
contemplated hereby, including, without limitation, attorneys', accountants' and
outside advisers' fees and disbursements, will be paid by the party incurring
such costs and expenses.
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5.9 Public Announcements. The parties will consult with one another before
issuing any press releases or otherwise making any public statements with
respect to this Agreement and the Related Agreements and the transactions
contemplated hereby and thereby and will not issue any such press release or
make any such public statement without the consent of the other party unless
such action is required by law or by the SEC.
5.10 Efforts to Consummate. Subject to the terms and conditions herein
provided, each of the parties hereto agrees to use its reasonable commercial
efforts to take, or cause to be taken, all action and to do, or cause to be
done, all things necessary, proper or advisable to consummate, as promptly as
practicable, the transactions contemplated hereby, including, but not limited
to, filing all such reports, notifications and other filings pursuant to
federal, state, local or governmental regulation and obtaining all necessary
consents, waivers, authorizations, orders, approvals, Licenses and Permits,
licenses and/or waivers of third parties, whether private or governmental,
required of it to enable it to comply with the conditions precedent to
consummating the transactions contemplated by this Agreement and the Related
Agreements. Seller agrees to cooperate fully, and to cause its officers and
employees to cooperate fully, with Buyer and its officers, auditors, legal
counsel, investment bankers and their legal counsel in connection with the
financing of the transactions contemplated hereby. Each party agrees to
cooperate fully with each of the other parties in assisting them to comply with
the provisions of this Section 5.10 and Seller agrees to take such steps as may
be necessary to remove any liens, mortgages, charges, pledges, security
interests or other Encumbrances (other than Permitted Exceptions) which affect
the Purchased Assets. The term "Permitted Exceptions" as used in this Agreement
means (a) statutory liens for current taxes or assessments not yet due or
delinquent; (b) mechanics', carriers', workers', repairers' and other similar
liens arising or incurred in the Ordinary Course of Business relating to
obligations as to which there is no default on the part of Seller, provided that
the same shall be fully discharged of record before the Closing; (c) such other
liens, imperfections in title, charges, easements, restrictions and encumbrances
which are set forth on Schedule 3.9 and do not in the aggregate impair the value
of the Purchased Assets by more than Twenty Five Thousand Dollars ($25,000).
Notwithstanding the foregoing, no party hereto shall be required to initiate any
litigation, make any payment or incur any economic burden and, except for a
payment otherwise then required to be made by it, to obtain any consent, waiver,
authorization, order or approval. If, despite its efforts, any party is unable
to obtain any consent, waiver, authorization, order or approval, and such
failure to obtain such consent, waiver, authorization, order or approval would
have a material adverse effect on the Purchased Assets, the other party may
terminate this Agreement and shall have no liability therefor, except as is
provided in Section 12.2.
5.11 Further Assurances. Seller and Buyer will use reasonable commercial
efforts to implement the provisions of this Agreement and the Related
Agreements, and for such purpose, at the request of any party (or Buyer's
designees) will, at or after the Closing, without further consideration,
promptly execute and deliver such additional documents as the requesting party
may reasonably deem necessary or desirable in order to consummate more
effectively the transactions contemplated hereby and thereby to vest in Buyer
title to the Purchased Assets free and clear of any liens, changes, pledges,
security interests or other Encumbrances.
5.12 Inventory Adjustment. The book value of the Inventory included in the
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Purchased Assets at the Closing Date shall be $2,478,368.00 (the "Target
Value"). The Purchase Price will be adjusted to the benefit of Buyer or Seller,
dollar for dollar, to the extent that the value of the Inventory as of the
Closing, as reported in the Final Closing Inventory Statement (as defined
below), is more or less than the Target Value (the "Inventory Adjustment").
(a) Closing Inventory Statement.
(i) Seller shall deliver to Buyer a statement setting forth the value of
the Inventory as of the Closing (the "Closing Inventory Statement"), which
Closing Inventory Statement Seller shall use its best efforts to deliver within
five (5) business days after the Closing Date, but shall deliver no later than
ten (10) business days after the Closing Date. The Closing Inventory Statement
shall be prepared in accordance with the current accounting practices of the
Motive Power Division Business. Representatives of Buyer shall be entitled to
observe and review the preparation of the Closing Inventory Statement to
whatever extent Buyer may elect.
(ii) The Closing Inventory Statement shall be reviewed by Buyer, and Buyer
may, during the fifteen (15) business day period following the receipt by Buyer
of the Closing Inventory Statement, propose such adjustments (if any) as shall
in its judgment be required to cause the Closing Inventory Statement to properly
reflect the value of the Inventory as of the Closing in the manner provided in
this Section 5.12. In the event that Buyer and Seller are unable to agree upon
any such proposed adjustments within ten (10) business days after they have been
proposed by Buyer as aforesaid then, in such event, the adjustments in dispute
shall be submitted to the accounting firm of KPMG (the "Arbitrator") for its
consideration and resolution; the fees of the Arbitrator, the decision of which
shall be final and binding upon Buyer and Seller, shall be paid one-half by each
of said parties. The Closing Inventory Statement shall become final and binding
upon the parties, (A) if Buyer does not propose any adjustments thereto in
accordance with the terms hereof, on the earlier of the date of written
acceptance thereof by Buyer or fifteen (15) business days after the delivery
thereof to Buyer, or (B) if Buyer proposes adjustments thereto in accordance
with the terms hereof, on the earlier of the date of written acceptance thereof
(as so adjusted) by Buyer and Seller or the date of the receipt by Buyer and
Seller of the decision of the Arbitrator as to any adjustments submitted to it
for resolution. The Closing Inventory Statement, in the form in which it becomes
final and binding upon Buyer and Seller as aforesaid, is hereinafter referred to
as the "Final Closing Inventory Statement". The Final Closing Inventory
Statement shall be delivered by Seller to Buyer within five (5) business days
after it becomes binding upon Buyer and Seller as aforesaid.
(b) Adjustment of the Purchase Price.
(i) If the value of the Inventory as set forth on the Final Closing
Inventory Statement is greater than the Target Value, Buyer shall pay to Seller,
within five (5) business days following the delivery by Seller to Buyer of the
Final Closing Inventory Statement, cash in immediately available funds in an
amount equal to such difference.
(ii) If the value of the Inventory as set forth on the Final Closing
Inventory Statement is less than the Target Value, Seller shall pay to Buyer,
within five (5) business days following the delivery by Seller to Buyer of the
Final Closing Inventory Statement, cash in immediately available funds in an
amount equal to such difference.
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ARTICLE VI
COVENANTS
6.1 Transition. Neither Seller nor Buyer will take any action that is
designed or intended to have the effect of discouraging any lessor, licensor,
customer, supplier, or other business associate of the businesses related to the
Purchased Assets and the Related Agreements from maintaining the same business
relationships with the Buyer after the Closing as it maintained with Seller
prior to the Closing.
6.2 Covenant Not To Compete.
(a) Seller will not:
(i) except as is required for Seller to fulfill any customer purchase
orders accepted by Seller prior to the Closing Date, compete (as defined below)
with Buyer, during the five (5) year period commencing on the Closing Date, with
respect to motive batteries for electric forklift truck applications. The term
"compete" as used herein means to own, manage, operate or engage in a business
involving the manufacture, converting, marketing, improvement, development,
production, sale or otherwise, of any the types of batteries and applications
specified above, throughout North America (Canada, Mexico and the United
States), directly or indirectly, either as a proprietor, partner, operator,
agent, broker, licensor, licensee, joint venturer, or in any other capacity or
means whatsoever; provided, however, that Seller shall not be deemed to
"compete" as defined herein if either (a) all or substantially all of the
capital stock or assets of Seller is acquired by an entity that has a business
which engages in the manufacture or sale of motive batteries that may include
electric forklift truck applications, or (b) Seller purchases the capital stock
or assets of an entity that engages in the business of the manufacture or sale
of motive batteries provided that such motive business does not include the
manufacture or sale of motive batteries for electric forklift truck
applications; and
(ii) during the one (1) year period commencing on the Closing Date,
without Buyer's prior written consent, solicit, hire or employ any person
employed by Buyer or its affiliates. Buyer will not, without Seller's prior
written consent, during the period described above, solicit, hire or employ any
person employed by Seller or its affiliates.
(b) The parties agree that the restrictions contained in this Section 6.2
are a reasonable and necessary protection of the immediate interests of the
Buyer or Seller and any violation of these restrictions would cause substantial
injury to the Buyer or Seller. It is the desire and intent of the parties that
the provisions of Section 6.2(a) shall be enforced to the fullest extent
permissible under the laws and public policies applied in each jurisdiction in
which enforcement is sought. Accordingly, if any portion or portions of Section
6.2(a) shall be adjudicated to be invalid or unenforceable, Section 6.2(a) shall
be deemed amended to delete therefrom the portion or portions thus adjudicated
to be invalid or unenforceable, such deletion to apply only with respect to the
operation of such portions of such Sections in the particular jurisdiction in
which such adjudication is made. If there is a breach or threatened breach of
any of the provisions of Section 6.2(a) of this Agreement, Buyer or Seller shall
be entitled to an injunction restraining such breach. Nothing herein shall be
construed as prohibiting Buyer or Seller from pursuing any other remedies for
such breach or threatened breach.
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ARTICLE VII
EMPLOYEES AND EMPLOYEE MATTERS
7.1 Transferred Employees. (i) Seller has delivered to Buyer a list of all
of the employees of Seller who are employed at the Facilities, the "Facilities
Employees", and a list of Motive Power Division Business Regional Sales Manager
employees, "Sales Employees" (each, also referred to as an "Employee" and
collectively, as the "Employees") as of the most recent date for which such
information is available. Buyer shall offer employment to all Facilities
Employees effective no later than the Closing Date. Buyer shall offer employment
to selected Sales Employees effective no later than the Closing Date. To the
extent any Employees are subject to a collective bargaining agreement, the
process for Buyer to offer employment to Employees who are subject to a
collective bargaining agreement after the Closing shall be in accordance with
the terms and conditions of the applicable collective bargaining agreements.
Such offers of employment shall be conditioned upon the execution by the
Employee of a release of Seller of any severance obligations to the Employee.
Such Employees who are offered employment by Buyer and elect to become employees
of Buyer are hereinafter referred to as "Transferred Employees" and shall be
deemed to have become employees of Buyer as of the time the Closing becomes
effective. The list of Transferred Employees is appended hereto in Schedule 7.1.
(ii) Buyer represents to Seller that it does not intend to implement a
"plant closing" or a "mass layoff" as those terms are defined in the WARN Act at
or in respect of the Facility within ninety (90) days of the Closing Date. Buyer
shall be responsible for and shall indemnify and hold harmless Seller from any
and all claims or liability under the WARN Act arising from (a) a breach of
Buyer's agreement with respect to hiring contained in Section 7.1(i) or (b) a
"plant closing" or "mass layoff" in violation of the WARN Act occurring after
the Closing Date.
7.2 Employee Benefit Plans.
(i) Buyer will establish employee benefit plans and programs and will
permit each salaried Employee and each hourly Employee who becomes a Transferred
Employee and who is not covered by a collective bargaining agreement to
participate in such employee benefit plans and programs. The Transferred
Employees' accrual of benefits under plans and programs covering employees of
Buyer shall be based solely on their service with Buyer after the Closing.
(ii) No assets or Liabilities with respect to Transferred Employees
shall be transferred, as a result of this Agreement, from any of Seller's
employee benefit plans applicable to the Employees of the Business to any plan
maintained or established by Buyer, and Seller shall retain all obligations to
fund or otherwise provide benefits accrued by Transferred Employees under its
benefit plans prior to the Closing, except as otherwise expressly provided
herein. Benefits under the plans retained by Seller shall be payable to the
Transferred Employees pursuant to the terms of such plans and shall constitute
the only benefits to which the Transferred Employees are entitled with respect
to their service with Seller prior to the Closing, except as otherwise expressly
provided herein, provided nothing in this sentence shall be deemed an assumption
of Liabilities by the Buyer as to Transferred Employees.
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(iii) Buyer will assume Seller's obligations under any collective
bargaining agreements listed in Schedule 3.12(a) with respect to Transferred
Employees covered by one or more of such agreements to the extent that the
collective bargaining agreements relate to services rendered for Buyer by
Transferred Employees after the Closing. For purposes of applying the terms and
conditions of such collective bargaining agreements, the employment of each
Transferred Employee shall be deemed to be continuous, and without interruption
resulting from the termination by Seller and rehiring by Buyer contemplated
under this Agreement, provided nothing in this sentence shall be deemed an
assumption of pre-Closing Liabilities by Buyer as to Transferred Employees.
Buyer will establish such benefit plans and arrangements as may be mutually
agreed upon by Buyer and the collective bargaining representatives of the
Transferred Employees.
7.3 Worker's Compensation. Buyer will assume the responsibility for all
worker's compensation claims made by Transferred Employees arising from events
occurring after the Closing and Buyer will indemnify Seller for such claims, and
Seller shall indemnify Buyer for any claims made against Buyer for events
occurring prior to the Closing. Seller will retain the responsibility (including
claims administration) for all worker's compensation claims made by its
employees or former employees (whether or not Transferred Employees) that arise
from events that occur before the Closing or events otherwise occurring while
the Employees are employed by Seller and Buyer shall indemnify Seller for claims
made against Seller for events occurring after the Closing.
7.4 Severance and Vacation Pay.
(a) Seller will pay severance pay as required under Seller's existing
severance pay programs to all eligible Employees who are not Transferred
Employees and are otherwise continued in the employ of Seller, and shall
indemnify Buyer for severance or other claims made against Buyer by Employees
who are not Transferred Employees. Buyer shall reimburse Seller for severance
pay paid by Seller to any Employee who is hired by Buyer within ninety (90) days
after the Closing.
(b) With respect to Transferred Employees, Buyer will be a successor of
Seller solely with respect to, and will credit each such Transferred Employee,
with any and all accrued vacation time that must be used during such Transferred
Employee's current year of employment with Seller prior to the Closing and that
has not been previously used by such Transferred Employee. The term "current
year of employment" in the foregoing sentence shall mean the current calendar
year for the Transferred Employees. Seller will pay to severed Employees (who
are not Transferred Employees) all unpaid vacation pay accrued prior to the
Closing and shall indemnify Buyer for any claims made by such employees for
unpaid vacation pay (or any other employee benefit(s) accrued as of the Closing)
without regard for the limitations set forth in Section 11.4. Thereafter, Seller
will have no liability for vacation pay for Transferred Employees except as set
forth in this Article VII.
7.5 Other Liabilities Relating to Employees. Except to the extent
otherwise specifically provided in this Article VII, Buyer shall not assume any
obligations or Liabilities with respect to (i) any pension plan, welfare plan,
retiree medical expenses, or other employee benefit plan or program relating to
any present, former or retired employee of Seller, (ii) any severance or
separation obligation which may result from the consummation of the transactions
contemplated by this Agreement and Seller shall indemnify Buyer for any claims
by Employees for such payments; or (iii) any other liabilities
18
or obligations arising from the employment of Employees through the consummation
of the Closing (whether or not Transferred Employees).
7.6 Administration. Buyer and Seller will each make its appropriate
employees available to the other at such reasonable times as may be necessary
for the proper administration by the other of any and all matters relating to
employee benefits, employee grievances and worker's compensation claims
affecting the Employees and former employees of Seller (whether or not
Transferred Employees). If, as a result of the transactions contemplated by this
Agreement, reports are required to be filed with respect to any of Seller's
benefit plans, Seller will file such reports.
ARTICLE VIII
CONDITIONS TO OBLIGATIONS OF BUYER
The obligations of Buyer to consummate the transactions contemplated by
this Agreement shall be subject, to the extent not waived by Buyer in writing,
to the satisfaction at or prior to the Closing of each of the following
conditions:
8.1 Representations and Warranties. The representations and warranties of
Seller contained in Article III of this Agreement together with and subject to
the Schedules thereto, and any other documents executed by or on behalf of
Seller from and after the date hereof, including, but not limited to, the
Related Agreements through the Closing pursuant to this Agreement, shall be true
and complete as of the date of this Agreement and as of the Closing, as if made
on and as of such date.
8.2 Performance of this Agreement. Seller shall have complied in all
material respects with all of its obligations under this Agreement that are to
be performed or complied with by it and prior to the Closing and shall deliver
to Buyer at the Closing a certificate to that effect signed by its Chairman or
President.
8.3 Corporate Authorization. All corporate action required to be taken by
Seller in connection with the transactions contemplated by this Agreement shall
have been taken, all documents incident thereto shall be reasonably satisfactory
in substance and form to Buyer and Buyer shall have received such originals or
copies of such documents as it may reasonably request.
8.4 Consents and Approvals. The consents, authorizations, orders,
approvals or waivers of Governmental Authorities and of individuals or business
entities listed in Schedule 8.4 which Seller is required to obtain in order to
be able to assign or otherwise transfer the Purchased Assets to shall have been
obtained and all waiting periods specified by law with respect thereto shall
have expired or terminated.
8.5 Injunction, Litigation. No order, injunction, decree or judgment of
any court or Governmental Authority having jurisdiction shall be in effect which
restrains or prohibits the consummation of the transactions contemplated by this
Agreement or the Related Agreements, or which would limit or affect the ability
of Buyer to own or control the Purchased Assets or to operate the Facilities,
and there shall not have been threatened, nor shall there be pending, any action
or proceeding by or before any such court or Governmental Authority seeking to
prohibit, delay or otherwise prevent or challenging the validity of the
transactions contemplated by this Agreement or the Related Agreements.
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8.6 Related Agreements, Documents and Instruments. Seller shall have duly
executed and delivered the Related Agreements. Seller shall have delivered all
Schedules and other disclosures required to be delivered pursuant to the
provisions of this Agreement. Seller shall have executed and delivered such
bills of sale, and other instruments of assignment and transfer in proper form
to effect the transfer and assignment of the Purchased Assets in accordance with
the provisions of this Agreement and such other documents, certificates or
instruments to be delivered hereunder.
8.7 Payment of Transfer Taxes. Seller shall have paid or provided for
payment of its portion of all transfer taxes payable upon the transfer of the
Equipment hereunder.
8.8 No Material Adverse Change. There shall not have occurred since the
date of the execution of this Agreement, any material adverse change (i) in the
condition or operations of the Purchase Assets or (ii) in the capacity of Seller
to own or operate the Purchased Assets in a manner consistent with past
practice.
ARTICLE IX
CONDITIONS TO OBLIGATIONS OF SELLER
The obligations of Seller to consummate the transactions contemplated by
this Agreement shall be subject, to the extent not waived by Seller in writing,
to the satisfaction at or prior to Closing of each of the following conditions:
9.1 Representations and Warranties. Except for changes contemplated by
this Agreement, the representations and warranties of Buyer contained in Article
IV of this Agreement shall be true and complete as of the date of this Agreement
and as of the Closing as if made on and as of such date.
9.2 Performance of this Agreement. Buyer shall have complied in all
material respects with all of its obligations under this Agreement and Buyer
shall have delivered to Seller a certificate to that effect signed by its duly
authorized officer(s).
9.3 Corporate Authorization. All corporate action required to be taken by
Buyer in connection with the transactions contemplated by this Agreement shall
have been taken, all documents incident thereto shall be reasonably satisfactory
in substance and form to Seller and Seller shall have received such originals or
copies of such documents as it may reasonably request.
9.4 Consents and Approvals. The consents, authorizations, orders,
approvals or waivers of Governmental Authorities and of individuals or business
entities listed in Schedule 9.4 which Buyer is required to obtain in order to be
able to assign or otherwise transfer the Purchased Assets to shall have been
obtained and all waiting periods specified by law with respect thereto shall
have expired or terminated.
9.5 Injunction, Litigation. No order of any court or Governmental
Authority shall be in effect which restrains or prohibits the consummation of
the transactions contemplated by this Agreement and the Related Agreements and
there shall not have been threatened, nor shall there be pending, any action or
proceeding by or before any such court or Governmental Authority seeking to
prohibit or delay or challenging the validity of the transactions contemplated
by this Agreement or the Related Agreements.
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ARTICLE X
CLOSING
10.1 Time and Place of Closing. The closing (the "Closing") shall take
place at a location mutually agreed upon in writing by Buyer and Seller at 9:00
a.m. local time on the later of (i) October 24,, 2007, (ii) the next business
day after which the last of the closing conditions is fulfilled or waived, or
(iii) such other date as may be mutually agreed upon by the parties in writing
(the "Closing Date"). If the Closing takes place, the Closing and all of the
transactions contemplated by this Agreement and the Related Agreements shall be
deemed to have occurred simultaneously and become effective as of 6:00 a.m. on
the Closing Date.
10.2 Deliveries by Seller. At the Closing, Seller shall deliver to Buyer
and/or its designees the following:
(i) properly endorsed title certificates transferring the motor
vehicles which are a part of the Purchased Assets to Buyer or its designees;
(ii) a xxxx of sale and assignment conveying to Buyer title to the
Equipment and Inventory, free and clear of Encumbrances other than Permitted
Exceptions in form reasonably acceptable to Buyer;
(iii) evidence that the corporate action described in Section 8.3 has
been taken; and
(iv) copies of the consents required by Section 8.4.
10.3 Deliveries by Buyer. At the Closing, Buyer shall deliver to Seller
the following:
(i) cash in the amount of the Purchase Price in immediately available
funds as set forth in Section 1.4(i);
(ii) an instrument of assumption of the Assumed Liabilities executed
by Buyer in form and substance reasonably acceptable to Seller;
(iii) evidence that the corporate action described in Section 9.3 has
been taken; and
(iv) copies of the consents required by Section 9.4.
10.4 Deliveries by Seller and Buyer. At the Closing, Seller and Buyer
shall each execute and deliver to the other duly executed copies of the Related
Agreements.
ARTICLE XI
INDEMNIFICATION
11.1 Indemnification by Seller. Subject to the limitations contained in
this Article XI, Seller will indemnify, defend and hold Buyer and its directors,
officers, employees, successors, assigns and representatives (collectively,
"Buyer Indemnified Parties") harmless from any and all Liabilities asserted
against, resulting from or incurred, suffered or paid,
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directly or indirectly, by Buyer Indemnified Parties, arising out of or relating
to:
(i) any misrepresentation contained in or breach of, any covenant,
representation or warranty made by Seller in any of the Seller Documents;
provided, however, that indemnification for any violation(s) of the
representations and warranties set forth in Sections 3.5 and 3.7 relating to
Environmental Laws shall be made only to the extent the aggregate of all such
violations shall exceed the sum of Fifty Thousand Dollars ($50,000) (the
"Basket"), and, in such event, indemnity shall be made only for the actual cost
of such violations in excess of the Basket; and the foregoing Basket shall apply
to any matter constituting a violation of Sections 3.5 and 3.7 regardless of
which subsection of this Section 11.1 is asserted to give rise to Seller's duty
to indemnify;
(ii) the breach of any agreement or undertaking of Seller contained in
any of the Seller Documents;
(iii) any Liability or obligation of Seller (whether absolute,
accrued, contingent or otherwise and whether a contractual or other type of
Liability, obligation or claim) not assumed by Buyer pursuant to this Agreement;
(iv) except for the Assumed Liabilities, any claims of creditors of
Seller against the Purchased Assets or Buyer's title to the Purchased Assets
(including any Liability of Seller that becomes a Liability of the Buyer under
any bulk transfer law of any jurisdiction, under any common law doctrine of de
facto merger or successor liability, or otherwise by operation of law);
(v) except to the extent Buyer is responsible for the following
Liabilities under this Agreement, any claims by or on behalf of current or
former employees of Seller arising out of employment with Seller prior to the
consummation of the Closing: (a) for wages, compensation, or benefits of any
type under any Employee Benefit Plan; (b) on account of any alleged or actual
contractual or other commitment of Seller to such employees; (c) on account of
any work-related injuries or illnesses occurring or contracted prior to the
consummation of the Closing, including, without limitation any refusal to rehire
claim related thereto; (d) on account of any strike, work stoppage, slowdown,
unfair labor practice allegation or finding, grievance proceedings,
discrimination or hiring claims, or other controversies involving issues of
employment, benefits, hiring practices, or any other aspect of the
employer-employee relationship or any similar event or condition relating to
personnel or employment relations matters occurring prior to the consummation of
the Closing; and/or (e) under any workers' compensation, worker health or
safety, equal employment opportunity, or discrimination statutes or laws of any
type or description;
(vi) any claims for sales and use taxes or any other Taxes made
against Buyer on account of the consummation of the transaction contemplated by
this Agreement, or on account of the Business or operations conducted at the
Facilities prior to Closing;
(vii) except for the Assumed Liabilities, any operations or activities
of Seller in connection with ownership or use of the Purchased Assets by Seller
prior to the Closing;
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(viii) except for the Assumed Liabilities, any action, suit or
proceeding commenced before or after the Closing based on an event occurring or
a claim accruing prior to the consummation of the Closing relating to Seller or
the Purchased Assets;
(ix) except to the extent Buyer is responsible for the same under this
Agreement, any claim, Liability, Taxes, tax lien, or Encumbrance arising from or
with respect to taxes owing on or relating to the Purchased Assets for periods
prior to the Closing.
11.2 Indemnification by Buyer. Subject to the limitations contained in
this Article XI, Buyer will indemnify and hold Seller and its directors,
officers, employees, successors and assigns (collectively, "Seller Indemnified
Parties") harmless from any and all Liabilities asserted against, resulting from
or incurred, suffered or paid, directly or indirectly, by Seller Indemnified
Parties, arising out of or relating to:
(i) any misrepresentation contained in or breach of any covenant,
representation or warranty made by Buyer in this Agreement or the Related
Agreements;
(ii) the breach of any agreement or undertaking of Buyer contained
this Agreement or the Related Agreements;
(iii) the failure of Buyer to pay and perform any obligation or
liability specifically assumed by it pursuant to the terms of this Agreement;
(iv) any claims by or on behalf of Transferred Employees arising out
of employment by Buyer after the consummation of the Closing: (a) for wages,
compensation, or benefits of any type under any employee benefit plan; (b) on
account of any alleged or actual contractual or other commitment of Buyer to
such Transferred Employees; (c) on account of any work related injuries or
illnesses occurring or contracted after the consummation of the Closing,
including, without limitation any refusal to rehire claim related thereto; (d)
on account of any strike, work stoppage, slowdown, unfair labor practice
allegation or finding, grievance proceedings, discrimination or hiring claims,
or other controversies involving issues of employment, benefits, hiring
practices, or any other aspect of the employer-employee relationship or any
similar event or condition relating to personnel or employment relations
matters; (e) under any Workers' Compensation, worker health or safety, equal
employment opportunity, or discrimination statutes or laws of any type or
description; and/or (f) retiree medical benefits for Transferred Employees who
retire from the employment of Buyer, which benefits are claimed to have vested
or accrued as a result of such Employees' employment by Seller or its
predecessors;
(v) any operations or activities of Buyer in connection with ownership
or use of the Purchased Assets after the Closing; and
(vi) any and all actions, suits, proceedings, demands, claims,
assessments, judgments, fines, penalties, costs, damages, losses, charges, and
expenses (including reasonable attorneys' fees, court costs and disbursements)
that Seller may suffer, sustain, incur, or become subject to arising out of,
based upon, resulting from, or incident to the foregoing.
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11.3 Third Party Claims. The obligations and liabilities of a party from
which indemnification is sought (an "Indemnifying Party") to a party seeking
indemnification (an "Indemnified Party") under this Article XI with respect to
any claim, action, suit, proceeding or demand at any time instituted against or
made upon an Indemnified Party for which such Indemnified Party may seek
indemnification hereunder (a "Legal Action") resulting from the assertion of
liability by those not parties to this Agreement (including governmental claims
for penalties, fines and assessments) shall be subject to the following
conditions:
(i) the Indemnified Party shall give prompt written notice to the
Indemnifying Party of the nature of the Legal Action and the amount thereof to
the extent known; provided, however, that the failure to give such notice shall
not affect the rights of the Indemnified Party hereunder unless such failure
materially and adversely affects the Indemnifying Party;
(ii) if any Legal Action is brought by a third party against an
Indemnified Party, the Legal Action shall be defended by the Indemnifying Party
by counsel of its own choice subject to the consent of the Indemnified Party,
such consent not to be unreasonably withheld. So long as the Indemnifying Party
notifies the Indemnified Party in writing within fifteen (15) days after the
Indemnified Party has given notice of the Legal Action, the Indemnifying Party
will indemnify the Indemnified Party from and against the entirety of any
Liabilities the Indemnified Party may suffer resulting from, arising out of,
relating to, in the nature of, or caused by the Legal Action, and such defense
shall include all appeals or reviews which counsel for the Indemnifying Party
shall deem appropriate. Until the Indemnifying Party shall have assumed the
defense of any such Legal Action, or if the Indemnified Party shall have
reasonably concluded that there are likely to be defenses available to the
Indemnified Party that are different from or in addition to those available to
the Indemnifying Party (in which case the Indemnifying Party shall not be
entitled to assume the defense of such Legal Action and the defense may be
handled by the Indemnified Party), all legal or other expenses reasonably
incurred by the Indemnified Party shall be borne by the Indemnifying Party;
(iii) in any Legal Action initiated by a third party and defended by
the Indemnifying Party (w) the Indemnified Party shall have the right to be
represented by co-advisory counsel and accountants, at its own expense, (x) the
Indemnifying Party shall keep the Indemnified Party fully informed as to the
status of such Legal Action at all stages thereof, whether or not the
Indemnified Party is represented by its own counsel, (y) the Indemnifying Party
shall make available to the Indemnified Party, and its attorneys, accountants
and other representatives, all books and records of the Indemnifying Party
relating to such Legal Action and (z) the parties shall render to each other
such assistance as may be reasonably required in order to ensure the proper and
adequate defense of such Legal Action; and
(iv) in any Legal Action initiated by a third party and defended by
the Indemnifying Party, the Indemnifying Party shall not make any settlement of
any claim without the written consent of the Indemnified Party, which consent
shall not be unreasonably withheld. Without limiting the generality of the
foregoing, it shall not be deemed unreasonable to withhold consent to a
settlement involving injunctive or other equitable relief against the
Indemnified Party or its assets, employees or business.
11.4 Limitations on Indemnification. Notwithstanding the foregoing
provisions of this Article XI, Seller shall not be liable under Section 11.1
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(i) and (ii) and Buyer shall not be liable under Section 11.2 (i) and (ii)
unless and until, and only to the extent that, the aggregate amount of liability
under such Sections exceeds Fifty Thousand Dollars ($50,000) and thereafter the
Indemnified Party shall be entitled to indemnification thereunder in an
aggregate amount not to exceed Five Hundred Thousand Dollars($500,000);
provided, however, that with respect to Seller's other obligations pursuant to
Sections 11.1 and 5.12(b), and Buyer's other obligations pursuant to Section
11.2 and 5.12(b), (i) there shall be no minimum and no maximum amount for which
either Seller or Buyer shall be liable to indemnify the other, and (ii) any
amount paid by Seller to Buyer, or by Buyer to Seller under such Sections shall
not be included in, and shall be separate and apart from, the Five Hundred
Thousand Dollar ($500,000) limitation on indemnification. Nothing in this
Section 11.4 shall be deemed to limit Buyer's or Seller's rights to seek
injunctive relief pursuant to Sections 6.2(a) and (b)."
11.5 Survival, Investigation. The representations and warranties of the
parties contained in this Agreement shall survive any investigation by any party
and shall not terminate until the fifth anniversary of the Closing Date (the
"Survival Date") at which time they shall lapse. Notwithstanding the provisions
of the preceding sentence, (i) any representation or warranty in respect of
which indemnification may be sought under Sections 11.1(i) or 11.2(i) shall
survive the Survival Date if written notice, given in good faith, of the
specific breach thereof is given to the Indemnifying Party prior to the Survival
Date, whether or not liability has actually been incurred and (ii) any claim for
which indemnification can be sought under Sections 11.1(vi) and (ix) shall
survive until the expiration of any applicable statute of limitations thereupon.
11.6 Exclusive Remedy. Except as provided in Section 6.2(b), the sole and
exclusive remedy for any breach of this Agreement, including without limitation,
any misrepresentation, breach of covenant or warranty, and for any claim, loss,
damages, or Liabilities relating to, arising out of or otherwise in connection
with such breach, shall be the right of indemnification as and to the extent set
forth in this Article XI, and in all events subject to all of the limitations
herein, Buyer and Seller waive any and all other remedies available to it at law
or in equity (except as provided in Section 6.2(b)). Without intending to
suggest any exception to the exclusivity of the foregoing indemnification
remedy, and subject to Section 6.2(b), in the event that Buyer or Seller shall
seek to recover any loss, damage, or Liability from the other party under any
theory of recovery other than the indemnification as provided in this Article
XI, the parties hereby agree that the limitations and protections afforded to an
Indemnifying Party by the provisions of Sections 11.4, 11.5, and 11.6 shall be
equally applicable to any claim sought to be recovered under such theory. The
foregoing sentence shall not be applicable to any claim for breach of any
provision of Article VI. This Section 11.6 shall survive any termination of this
Agreement.
11.7 Waiver. No Indemnified Party shall be entitled to indemnification
pursuant to this Article XI with respect to or for (i) punitive, exemplary,
special or consequential damages, including damages for lost profits, unless
such damages are owed pursuant to a judgment, arbitration award or settlement
agreement requiring the payment of such damages by the Indemnified Party to a
third party or (ii) any matters attributable to the acts or omissions of, or on
behalf of, or consented to in writing by, such Party. Any Indemnified Party's
right to indemnification pursuant to this Article XI shall be reduced by the net
amount of all insurance or other third party indemnification proceeds
25
actually received by the Indemnified Party. An Indemnified Party shall be
required to use its commercially reasonable efforts to collect any such
insurance or other third party indemnification proceeds, but shall not be
obligated to commence or threaten any litigation or other proceeding, terminate
or threaten to terminate its business relationship with any insurer, or incur
any material obligation or liability in order to collect such proceeds. The
Indemnifying Party shall be subrogated to the rights of the Indemnified Party
with respect to any claims the Indemnified Party may have against insurers or
third parties to the extent of any indemnification payments made by the
Indemnified Party pursuant to this Agreement.
ARTICLE XII
TERMINATION, AMENDMENT AND WAIVER
12.1 Termination. This Agreement may be terminated at any time prior to
the Closing:
(i) by mutual consent of the Boards of Directors or Executive
Committees of Seller and Buyer.
(ii) by Seller if there has been a material breach by Buyer of a
representation, warranty or agreement contained herein or if any condition
contained in this Agreement which must be met by Buyer becomes impossible to
fulfill within a reasonably short period of time;
(iii) by Buyer if there has been a material breach by Seller of any
representation or warranty or agreement contained herein or if any condition
contained in this Agreement which must be met by Seller or any of the conditions
contained in Article VIII have not been met or, becomes impossible to fulfill
within a reasonably short period of time; and
(iv) by Seller or Buyer if the Closing has not occurred by 5:00pm
p.m., October 24, 2007.
12.2 Effect of Termination. If this Agreement is terminated as provided in
Section 12.1, it shall become wholly void and of no further force and effect and
there shall be no further liability or obligation on the part of any party
hereto except to pay such expenses as are required of it, but such termination
shall not constitute a waiver by any party of any claim it may have for damages
caused by reason of a material breach of a representation, warranty or agreement
made by another party hereto.
12.3 Amendment. This Agreement, the Related Agreements and the Schedules
hereto may be amended at any time prior to Closing provided that any such
amendment is approved in writing by each of the parties hereto. All
representations and warranties which are true and correct as modified and
approved in writing by the party to whom the representation and warranty is made
shall be deemed true and correct for the purposes of Sections 8.1 and 9.1.
12.4 Extension, Waiver. At any time prior to the Closing any party to this
Agreement which is entitled to the benefits thereof may (i) extend the time for
the performance of any of the obligations of another party hereto, (ii) waive a
breach of a representation or warranty of another party hereto, or (iii) waive
compliance of another party hereto with the Agreement or conditions contained
26
herein. Any such extension or waiver shall be valid if set forth in a written
instrument signed by the party giving the extension or waiver.
ARTICLE XIII
GENERAL PROVISIONS
13.1 Notices. All notices required to be given hereunder shall be in
writing and shall be deemed to have been given if (i) delivered personally, (ii)
delivered via one-day overnight courier, (iii) transmitted by telefax, or (iv)
mailed by registered or certified mail (return receipt requested and postage
prepaid) to the following listed persons at the addresses and telefax numbers
specified below, or to such other persons, addresses or telefax numbers as a
party entitled to notice shall give, in the manner hereinabove described, to the
others entitled to notice:
(a) If to Seller to:
C&D Technologies, Inc.
0000 Xxxxx Xxxxxxx Xxxx
Xxxx Xxxx, XX 00000-0000
Attention: General Counsel
Telefax No.: 000-000-0000
(b) If to Buyer to:
Crown Battery Manufacturing Company
0000 Xxxxxxxx Xxxxx, X.X. Xxx 000
Xxxxxxx, Xxxx 00000-0000
Attention: Xxx Xxxx
Telefax No.: (000) 000-0000
If given personally or transmitted by telefax, a notice shall be deemed to have
been given when it is received. If given by one-day overnight courier, notice
hall be deemed to have been given on the next business day following delivery to
the courier. If given by mail, it shall be deemed to have been given on the
third business day following the day on which it was posted. Notices and other
communications given by attorneys for Seller and Buyer shall be deemed given by,
respectively, Seller and Buyer.
13.2 Interpretation. The headings contained in this Agreement are for
reference purposes only and shall not affect the meaning or interpretation of
this Agreement.
13.3 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
13.4 Waiver. No waiver of any of the provisions hereof shall be effective
unless in writing and signed by the party to be charged with such waiver. No
waiver shall be deemed a continuing waiver or waiver in respect of any
subsequent breach or default, whether of similar or different nature, unless so
expressly stated in writing.
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13.5 Modification. This Agreement may not be orally cancelled, changed,
modified or amended, and no cancellation, change, modification or amendment
shall be effective or binding, unless in writing and signed by all of the
parties to this Agreement.
13.6 Severability. If any provision of this Agreement is found to be void
or unenforceable by a court of competent jurisdiction, the remaining provisions
of this Agreement shall nevertheless be binding upon the parties with the same
effect as though the void or unenforceable part had been severed and deleted.
13.7 Stricken Words or Phrases. If any words or phrases in this Agreement
shall have been stricken out or otherwise eliminated, whether or not any other
words or phrases have been added, this Agreement shall be construed as if the
words or phrases so stricken out or otherwise eliminated had never appeared in
this Agreement.
13.8 Number and Gender. All terms and words used in this Agreement,
regardless of the number or gender in which they are used, shall be deemed to
include any other number and any other gender as the context may require.
13.9 Miscellaneous. This Agreement, the Related Agreements and all
Schedules hereto and the other Seller Documents and the instrument of Assumption
to be delivered at the Closing by Buyer (i) constitute the entire agreement of
the parties as to the subject matter hereof and supersede all other prior
agreements and understandings, both written and oral, between the parties with
respect to the subject matter hereof; (ii) are not intended to and shall not
confer upon any other person or business entity, other than the parties hereto,
any rights or remedies with respect to the subject matter hereof; (iii) shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns; and (iv) shall not be assigned by operation of law or
otherwise without the prior written consent of the parties hereto; provided,
however, that (a) Buyer may, upon written notice to Seller, assign its right to
purchase hereunder, in part, to Crown Battery of Canada Limited without the
prior written consent of Seller and (b) Seller may, upon written notice to
Buyer, assign any of its rights, interests or obligations hereunder to any
wholly-owned subsidiary of Seller; provided further, however, that no assignment
shall limit or affect the assignor's obligations hereunder. Any attempted
assignment or transfer in violation of this Section 13.9 shall be void.
13.10 Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the Commonwealth of Pennsylvania. Buyer and
Seller hereby expressly consent to the jurisdiction of the courts of the
Commonwealth of Pennsylvania with respect to any action or proceeding between
Buyer and Seller with respect to this Agreement or any rights or obligation of
such party pursuant to this Agreement and each of Buyer and Seller agrees that
the venue shall lie in Philadelphia County, Pennsylvania. Each party to this
Agreement waives trial by jury in any such action or proceeding and consents to
the service of process in any such action or proceeding in the manner provided
for notices and other communications in Section 13.2.
ARTICLE XIV
DEFINITIONS
14.1 Definitions. The following terms, as used herein, have the following
meanings:
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"Arbitrator" has the meaning set forth in Section 5.12(a). "Assumed Liabilities"
has the meaning set forth in Section 1.3. "Basket" has the meaning set forth in
Section 11.1(i). "Buyer Indemnified Parties" has the meaning set forth in
Section 11.1. "Buyer" has the meaning set forth in the introductory paragraph of
this Agreement.
"Closing" has the meaning set forth in Section 10.1. "Closing Date" has the
meaning set forth in Section 10.1.
"Closing Inventory Statement" has the meaning set forth in Section 5.12(a)(i).
"Compete" has the meaning set forth in Section 6.2.
"Dollars" or "dollars" as used in the Agreement and the Related Agreements shall
mean the dollar denomination of currency of the United States. "Employee" has
the meaning set forth in Section 7.1.
"Encumbrances" has the meaning set forth in Section 3.9. "Environmental Law" has
the meaning set forth in Section 3.5. "Equipment" has the meaning set forth in
Section 1.1(ii) and 1.1(iv). "ERISA" means the Employee Retirement Income
Security Act of 1974, as amended. "Excluded Assets" has the meaning set forth in
Section 1.2. "Facilities" has the meaning set forth in the Recitals. "Facilities
Employees" has the meaning set forth in Section 7.1. "Facilities Software" has
the meaning set forth in Section 1.1(xiii). "Final Closing Inventory Statement"
has the meaning set forth in Section
5.12(a)(ii).
"Governmental Authority" as used in the Agreement shall mean any federal, state,
local or administrative authority. "Indemnified Party" has the meaning set forth
in Section 11.3. "Indemnifying Party" has the meaning set forth in Section 11.3.
"Inventory" has the meaning set forth in Section 1.1(iii).
"Knowledge of Buyer" means the actual present knowledge of those officers and
employees of Buyer, after due inquiry, listed in Schedule 14.1.a. "Knowledge of
Seller" means the actual present knowledge of those officers and employees of
Seller, after due inquiry, listed in Schedule 14.1.b.
"Legal Action" has the meaning set forth in Section 11.3. "Material Contracts"
has the meaning set forth in Section 3.11.
"Material Adverse Effect" as used in this Agreement shall mean a material
adverse effect on the financial condition of the Seller, taken as a whole,
except for any such effects resulting from (i) this Agreement, the transactions
contemplated hereby or the announcement thereof, (ii) changes in general
economic or political conditions in general, (iii) changes, after the date of
this Agreement, in conditions generally applicable to businesses in the same
industry as the Seller including changes in laws generally applicable to the
Business or such industry, or (iv) loss of any business or customers after the
Closing Date. "Minimum" has the meaning set forth in Section 11.1(i).
"Pension Plans" has the meaning set forth in Section 3.13.
"Permitted Exceptions" has the meaning set forth in Section 5.10.
"Purchase Price" has the meaning set forth in Section 1.4.
"Purchased Assets" has the meaning set forth in Section 1.1.
"Real Property Leases" has the meaning set forth in Section 1.1(i).
"Related Agreements" has the meaning set forth in Section 2.1.
"Sales Employees" has the meaning set forth in Section 7.1.
"Schedule," together with the numeric designation thereof (e.g., "Schedule
3.3"), means the specifically enumerated Schedule. Except to the extent
otherwise expressly provided herein, each Schedule has been separately
delivered and agreed to as of the date of this Agreement.
"Seller Documents" has the meaning set forth in Section 3.2.
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"Seller Indemnified Parties" has the meaning set forth in Section 11.2.
"SEC" means the Securities and Exchange Commission.
"Survival Date" has the meaning set forth in Section 11.5.
"Transferred Employees" has the meaning set forth in Section 7.1.
"WARN Act" means the Worker Adjustment and Retraining Notification Act, as
amended.
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be
executed and their corporate seals to be hereto affixed and attested by their
duly authorized officers.
SELLER: BUYER:
C&D TECHNOLOGIES, INC. CROWN BATTERY MANUFACTURING CO.
By: /s/Xxxxxxx X. Xxxxxx By: /s/Xxx Xxxx
------------------------ ------------------
Name: Xxxxxxx X. Xxxxxx Name: Xxx Xxxx
Title: President and CEO Title: President
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