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