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Exhibit 2.1
COORDINATING AGREEMENT
This COORDINATING AGREEMENT dated May 9, 2000 (the "Agreement") is executed
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by and between Exide Corporation, a Delaware corporation ("Buyer") and Pacific
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Dunlop Holdings (USA) Inc., a Delaware corporation ("Seller").
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RECITALS
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A. The parties hereto have agreed that Buyer and certain subsidiaries of
Buyer (the "International Buyers") will purchase from the Seller and certain
Affiliates of Seller (the "International Sellers") the businesses more
particularly described in and conveyed under the Sale Agreements as defined
below (collectively, the "Business").
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B. To effect the foregoing, following the execution of this Agreement,
Buyer and the International Buyers, on the one hand, and, Seller or the
International Sellers, on the other hand, will execute individual asset or share
purchase agreements, which are described on Exhibit A hereto, including the U.S.
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Agreement (as defined herein) which is being executed by Buyer and Seller
simultaneously herewith (collectively, the "Sale Agreements"), pursuant to which
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the Seller or one or more of the International Sellers will agree to sell, and
the Buyer or one or more of the International Buyers will agree to purchase, the
assets or capital shares owned by the Seller or the International Sellers (the
"Purchased Assets"), that, together with certain liabilities that Buyer or the
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International Buyers will agree to assume (the "Assumed Liabilities"), in the
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aggregate constitute the Business, on the terms and conditions set forth in the
Sale Agreements.
C. Pursuant to this Agreement and in connection with the Buyer's
acquisition of the Business, the Seller is delivering to Buyer certain financial
statements of the Business.
D. In order effectively and efficiently to coordinate the acquisition of
the Business by means of the multiple Sale Agreements, the parties hereto desire
to provide in a single document certain provisions that have overarching effect
on the transactions contemplated by the Sale Agreements, such as (i) the
adjustment of the purchase price paid pursuant to the Sale Agreements under the
circumstances described in this Agreement, (ii) the Seller's representation and
warranty regarding the financial statements referred to in Recital C, and (iii)
the resolution of any unintended inconsistencies or conflicts between or among
the terms of the Sale Agreements.
E. The parties hereto further desire to provide for a single avenue of
recourse for indemnification claims arising under the Sale Agreements and have
therefore agreed that all claims for indemnity against losses or claims
resulting from breaches of obligations, representations or warranties under the
Sale Agreements or this Agreement will be addressed exclusively under this
Agreement.
NOW THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, and in exchange for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
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ARTICLE 1.
DEFINITIONS
Section 1.1 Definitions. In this Agreement, the terms set forth below
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have the meanings specified or referred to in this Section 1.1 and shall be
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equally applicable to both the singular and plural forms. Unless otherwise
defined herein, all capitalized terms used in this Agreement shall have the
meanings ascribed to them in the U.S. Agreement.
"Accounting Report" has the meaning specified in Section 2.l(b)(ii) of
this Agreement.
"Action" means any lawsuit, arbitration, regulatory, governmental or
other proceeding or investigation, whether at law or in equity.
"Additional Accounting Firm" has the meaning specified in Section
2.1(d) of this Agreement.
"Additional Accounting Firm Adjustments" has the meaning specified in
Section 2.1(d)(ii) of this Agreement.
"Affiliate" means, with respect to any Person, any other Person which
directly or indirectly controls, is controlled by or is under common control
with such Person, including, but not limited to, those affiliates that have
executed this Agreement.
"Agreed Accounting Principles" has the meaning specified in Section
2.1(a) of this Agreement.
"Agreed Adjustments" has the meaning specified in Section 2.1(d) of
this Agreement.
"Agreed Rate" means the prime rate published by The Wall Street
Journal, as that rate may vary from time to time, or if that rate is no longer
published, a comparable rate.
"Agreement" has the meaning specified on the first page of this
Agreement.
"Assumed Liabilities" has the meaning specified on the first page of
this Agreement.
"Audited Closing Date Balance Sheet" has the meaning specified in
Section 2.1(b) of this Agreement.
"Business" has the meaning specified on the first page of this
Agreement.
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"Business Day" means a day other than Saturday, Sunday or a day on
which United States national banks are closed.
"Buyer" has the meaning specified on the first page of this Agreement.
As used in Articles 1 and 3 to 7, inclusive, Buyer shall be deemed to mean Buyer
and/or (as the context may require) any International Buyer.
"Claim Notice" has the meaning specified in Section 4.3(a) of this
Agreement.
"Customer Information" has the meaning specified in Section 6.3 of
this Agreement.
"Data Room" means the information compiled by Seller and made
available to Buyer at the offices of Seller's counsel in Chicago, Illinois for
due diligence purposes in connection with the transactions contemplated by the
Sale Agreements, which documents are more particularly described in the "GNB
Technologies Due Diligence Master Index" dated April 17, 2000, as amended from
time to time.
"Employee Leave Benefits" means the aggregate amount of all vacation
pay, long service leave, holiday pay or similar employee entitlement to which
Transferring Employees would legally have been entitled had each such employee
resigned from employment in the Business at the Closing Date.
"Expenses" means any and all reasonable expenses incurred in
connection with investigating, defending or asserting any Action or overtly
threatened Action (including court filing fees, court costs, arbitration fees or
costs, witness fees, and reasonable fees and disbursements of legal counsel,
investigators, expert witnesses, accountants and other professionals).
"Final Closing Date Balance Sheet" has the meaning specified in
Section 2.1(c) of this Agreement.
"Financial Statements" has the meaning specified in Section 3.1 of
this Agreement.
"GNB Companies" means any company, all the stock or the business of
which is acquired pursuant to one or more of the Sale Agreements by the Buyer.
"Governmental Body" means any Australian, European, New Zealand,
United States, or other national, state, or local governmental authority,
agency, or regulatory body.
"Indemnified Party" has the meaning specified in Section 4.3(a) of
this Agreement.
"Indemnitor" has the meaning specified in Section 4.3(a) of this
Agreement.
"International Buyers" has the meaning specified on the first page of
this Agreement.
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"International Sellers" has the meaning specified on the first page of
this Agreement.
"June 30, 1999 Balance Sheet" has the meaning specified in Section 3.1
of this Agreement.
"KPMG" has the meaning specified in Section 2.1(a) of this Agreement.
"Losses" means losses, liabilities, settlement payments, awards,
judgments, fines, assessments, penalties, and damages.
"March 31, 2000 Balance Sheet" has the meaning specified in Section
3.1 of this Agreement.
"Negative Purchase Price Adjustment" has the meaning specified in
Section 2.2(a) of this Agreement.
"Non-Compete Period" has the meaning specified in Section 6.1 of this
Agreement.
"Objection Period" has the meaning specified in Section 2.1(c) of this
Agreement.
"Person" means any individual, corporation, partnership, limited
liability company or corporation, joint venture, association, joint-stock
company, trust, unincorporated organization or Governmental Body.
"Positive Purchase Price Adjustment" has the meaning specified in
Section 2.2(a) of this Agreement.
"Preliminary Closing Date Balance Sheet" has the meaning specified in
Section 2.1(a) of this Agreement.
"Price Adjustment Statement" has the meaning specified in Section
2.1(b)(i) of this Agreement.
"Purchase Price" means the aggregate of the cash purchase prices paid
pursuant to the Sale Agreements, being Three Hundred and Thirty-Three Million
United States Dollars (US $333,000,000).
"Purchase Price Adjustment Due Date" has the meaning specified in
Section 2.2(b) of this Agreement.
"Purchased Assets" has the meaning specified on the first page of this
Agreement.
"Qualifying Claim" has the meaning specified in Section 4.l(b)(i) of
this Agreement.
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"Real Property" has the meaning specified in each of the Sale
Agreements.
"Requirements of Law" means any foreign, federal, state or local law,
statute, regulation, code or ordinance of any Governmental Body currently in
effect.
"Resolution Period" has the meaning specified in Section 2.1(d) of
this Agreement.
"Review Commencement Date" has the meaning specified in Section
2.1(e)(i) of this Agreement.
"Sale Agreements" has the meaning specified on the first page of this
Agreement.
"Seller Entities" has the meaning specified in Section 5.5 of this
Agreement.
"Tax" (and, with correlative meaning, "Taxes" and "Taxable") means any
federal, state, county, local or foreign income, alternative or add-on minimum,
gross income, gross receipts, capital gains, capital, property, sales, use,
transfer, license, excise, premium, lease, estimated, environmental,
registration, value added, stamp, real property, franchise, employment, payroll,
wage, withholding or minimum tax, ad valorem, stamp duty, customs duty, any
other similar taxes or governmental charges, fees, levies, assessments or
liabilities of any kind whatsoever, whether computed on a separate or
consolidated, unitary or combined basis or in any other manner, and includes any
interest, penalty or fine, or addition to tax imposed by any Governmental Body.
"Transferring Employees" means all employees of the Business who
accept employment with the Buyer or one of its Affiliates, or who are employed
by one of the GNB Companies purchased by the Buyer or one of its Affiliates.
"U.S. Agreement" means the Stock Purchase Agreement by and between
Buyer and Seller concerning the purchase and sale of Seller's United States
business and operations.
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ARTICLE 2.
PURCHASE PRICE ADJUSTMENT
Section 2.1 Determination of Final Closing Date Balance Sheet.
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(a) As soon as possible following the Closing Date (but not later
than sixty (60) days after the Closing Date), Buyer shall cause to be prepared a
balance sheet as of the Closing Date setting forth in reasonable detail the
total assets and total liabilities of the Business (the "Preliminary Closing
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Date Balance Sheet") and deliver same to Seller and to KPMG Peat Marwick LLP or
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its successor ("KPMG"). The Preliminary Closing Date Balance Sheet shall be
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prepared in accordance with generally accepted accounting principles consistent
with those employed in the preparation of the June 30, 1999 Balance Sheet and
the March 31, 2000 Balance Sheet ("Agreed Accounting Principles").
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Notwithstanding the foregoing, the parties agree that:
(i) the Preliminary Closing Date Balance Sheet and the March
31, 2000 Balance Sheet shall not reflect (and/or no
consideration will be given to) an accrual or provision
for "Closure, restructuring and other reserves" which
was presented as $9,571,000 on the March 31, 2000
Balance Sheet;
(ii) the fixed assets of the Business will be valued on the
Preliminary Closing Balance Sheet in the amounts set
forth in the March 31, 2000 Balance Sheet subject only
to ordinary depreciation, plus any capital expenditures
(less disposals) after March 31, 2000; and
(iii) the inventory of the Business shall be determined using
the results of a physical inventory of the Business near
the Closing Date as agreed to by the parties.
KPMG and Seller and Buyer and its auditors shall have the opportunity to observe
the taking of physical inventories.
(b) Promptly following delivery of the Preliminary Closing Date
Balance Sheet to Seller, Seller shall cause KPMG to conduct a special audit of
the Preliminary Closing Date Balance Sheet, which special audit shall be
completed not later than sixty (60) days after delivery of the Preliminary
Closing Date Balance Sheet to Seller. Upon completion of the special audit,
Seller shall cause KPMG to deliver to each of Seller and Buyer:
(i) a "Price Adjustment Statement" of the Business which
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will reflect changes in inventories, prepaid expenses,
trade receivables net of allowance, trade accounts
payable, accrued salaries, wages and other
compensation, warranty reserves and other accrued
expenses (as such accounts are defined in the June 30,
1999 Balance Sheet and the March 31, 2000 Balance
Sheet), in each case since March 31, 2000,
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plus an amount equal to any capital expenditures: (A)
made after March 31, 2000 that are permitted by Section
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5.7 and Section 7.3(b) and that are described in
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Schedule 7.3(B) to the U.S. Agreement, (or the
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corresponding schedules of the other Sale Agreements)
plus (B) any other capital expenditures made in the
ordinary course of business since March 31, 2000, minus
ordinary depreciation and disposals of such capital
assets and casualty losses (net of expected insurance
proceeds) of such capital assets plus an amount equal to
the amount of tax benefit, but in no event more than One
Million United States Dollars (US $1,000,000), on the
Employee Leave Benefits and future retiree medical
benefits accrued (on a country-by-country basis) with
respect to all Transferring Employees as at the Closing
Date (collectively, the "Adjustable Accounts"); and
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(ii) an audit report stating (without qualification) that, in
KPMG's opinion, the Preliminary Closing Date Balance
Sheet, including the financial information in the Price
Adjustment Statement referred to in Section 2.1 (b)(i),
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as audited by such firm, has been prepared in accordance
with the Agreed Accounting Principles except as provided
in Section 2.1 (a)(i) and (ii) (such summary, Price
Adjustment Statement and audit report are herein
referred to as the "Accounting Report").
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The Preliminary Closing Date Balance Sheet, as so determined, is herein referred
to as the "Audited Closing Date Balance Sheet." The parties shall make available
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to KPMG all books, records and other information that KPMG may request to issue
its Accounting Report. The fees and expenses of KPMG related to the special
audit of the Preliminary Closing Date Balance Sheet hereunder shall be paid by
Seller.
(c) Promptly following the delivery of the Accounting Report to Buyer,
Buyer and its auditors and advisors may review the same and, within thirty (30)
days after such delivery (the "Objection Period"), Buyer may deliver to Seller a
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certificate (signed by an officer of Buyer) setting forth its objections, if
any, only to the values shown for the Adjustable Accounts on the Audited Closing
Date Balance Sheet, together with a summary of the reasons therefor and
calculations which, in Buyer's view, are necessary to eliminate such objections.
In the event Buyer does not so object within the Objection Period, the Audited
Closing Date Balance Sheet shall be final and binding as the "Final Closing Date
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Balance Sheet".
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(d) In the event Buyer objects within the Objection Period, then
within thirty (30) days following Buyer's delivery to Seller of the certificate
referenced in Section 2.1(c), (the "Resolution Period"), the Buyer and Seller
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shall use their reasonable efforts to resolve by written agreement (the "Agreed
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Adjustments") Buyer's objections to the Audited Closing Date Balance Sheet. In
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the event that Seller and Buyer so resolve any such objections, the Audited
Closing Date Balance Sheet shall be adjusted by the Agreed Adjustments and, if
all such objections have been resolved by Agreed Adjustments, the Audited
Closing Date Balance Sheet, as adjusted by the
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Agreed Adjustments, shall be final and binding as the Final Closing Date Balance
Sheet. In the event any objections raised by Buyer are not resolved by Agreed
Adjustments during the Resolution Period, then within ten (10) days following
the end of the Resolution Period, the Seller and Buyer shall jointly select a
national accounting firm acceptable to both Seller and Buyer (or if they cannot
agree on such selection, a national accounting firm will be selected by lot
after eliminating any accounting firm or firms that has or have acted as
auditors, tax advisors, or consultants to Seller or Buyer or their respective
Affiliates) (the "Additional Accounting Firm"). For purposes of the preceding
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sentence, only the following accounting firms shall be considered national
accounting firms: Ernst & Young LLP and Deloitte & Touche LLP. The terms of the
engagement of the Additional Accounting Firm shall be the terms set forth in
Section 2.1(e). The Additional Accounting Firm shall review and resolve any
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remaining objections as to which Buyer and Seller have not reached Agreed
Adjustments and deliver, in no event later than sixty-five (65) days following
the Review Commencement Date (as defined in Section 2.1(e)(i)) (time being of
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the essence), written notice to each of Buyer and Seller setting forth:
(i) its determination of such remaining objections; and
(ii) the adjustments to the Audited Closing Date Balance Sheet
(the "Additional Accounting Firm Adjustments").
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The Audited Closing Date Balance Sheet as so determined but after giving effect
to the Agreed Adjustments and to the Additional Accounting Firm Adjustments
shall constitute the Final Closing Date Balance Sheet.
(e) The parties agree that the firm chosen as the Additional
Accounting Firm will agree expressly in the instrument of their engagement that
the following procedures will be used by the Additional Accounting Firm in
determining the Additional Accounting Firm Adjustments:
(i) Seller will provide to the Additional Accounting Firm
copies of this Agreement, the Agreements set forth on
Exhibit A,the Accounting Report and the Audited Closing
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Date Balance Sheet. The date upon which the Additional
Accounting Firm receives such documents is referred to as
the "Review Commencement Date."
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(ii) Each of Buyer and Seller may make a single additional
submission to the Additional Accounting Firm, which will
not exceed twenty five (25) pages in length (including all
exhibits and attachments), within thirty (30) days of the
Review Commencement Date.
(iii) Each party shall be permitted to deliver to the Additional
Accounting Firm a response to the submission of the other
party described in Section 2.1 (e)(ii), which response,
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with all exhibits and attachments, shall not exceed five
(5) pages. The responses contemplated by this Section 2.
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1(e)(iii) will be delivered, if at all, within twenty (20)
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days
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of the respondent's receipt of the submission described
in Section 2.1(e)(ii).
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(iv) The Additional Accounting Firm shall review the documents
submitted by the parties, and shall have the opportunity
to ask specific written questions or request specific
historical documents from either party to clarify its
understanding of the submissions, including, if reasonably
available, the work papers of KPMG relating hereto. The
non-responding party may submit to the Additional
Accounting Firm a written dissent of not more than five
(5) pages to any response submitted by the other party to
the Additional Accounting Firm.
(v) Copies of any submission, response, or document submitted
to or by the Additional Accounting Firm by or to a party
as contemplated hereby will be submitted by the Additional
Accounting Firm to the other party simultaneously or as
soon as received, as the case may be.
(vi) The Additional Accounting Firm will deliver its
determination of remaining objections between Buyer and
Seller and the Additional Accounting Firm Adjustments
within sixty-five (65) days following the Review
Commencement Date.
(f) The fees and expenses of the Additional Accounting Firm shall
be paid by Seller and Buyer in inverse proportion to their success. For example,
if Buyer's objections were $1 million and the Additional Accounting Firm
determined that $600,000 of such objections were valid, Buyer would be
responsible for 40% of such fees and expenses.
Section 2.2 Calculation and Payment of Adjustment.
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(a) If the Price Adjustment Statement discloses a positive net
change to the specific items included therein, then the amount of such positive
net change (the "Positive Purchase Price Adjustment") shall be added to the
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Purchase Price. If the Price Adjustment Statement discloses a negative net
change to the specific items included therein then the Purchase Price shall be
reduced by the amount of such negative net change (the "Negative Purchase Price
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Adjustment").
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(b) Not later than three (3) Business Days after the determination
of the Final Closin g Date Balance Sheet (such third Business Day being the
"Purchase Price Adjustment Due Date"), Buyer shall pay to Seller by wire
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transfer of immediately available funds to such bank account as Seller shall
designate in writing to Buyer, the Positive Purchase Price Adjustment, if any,
plus interest thereon from the Closing Date through the date of payment at the
Agreed Rate. In the event that Buyer does not pay the Positive Purchase Price
Adjustment on or before the Purchase Price Adjustment Due Date, then Buyer shall
pay Seller the sum of:
(i) the Positive Purchase Price Adjustment; plus
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(ii) interest on the Positive Purchase Price Adjustment from the
Closing Date through the Purchase Price Adjustment Due Date
at the Agreed Rate; plus
(iii) interest on the sum of the amounts specified in clauses
(i) and (ii) of this Section 2.2(b) from the Purchase Price
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Adjustment Due Date through the date of payment at a rate
equal to the Agreed Rate plus five percent (5%).
(c) On or before the Purchase Price Adjustment Due Date, Seller shall
pay to Buyer, by wire transfer of immediately available funds to such bank
account as Buyer shall designate in writing to Seller, the Negative Purchase
Price Adjustment, if any, plus interest thereon from the Closing Date through
the date of payment at the Agreed Rate. In the event that Seller does not pay
the Negative Purchase Price Adjustment on or before the Purchase Price
Adjustment Due Date, then Seller shall pay Buyer the sum of:
(i) the Negative Purchase Price Adjustment; plus
(ii) interest on the Negative Purchase Price Adjustment from the
Closing Date through the Purchase Price Adjustment Due Date
at the Agreed Rate; plus
(iii) interest on the sum of the amounts specified in clauses
(i) and (ii) of this Section 2.2(c) from the Purchase Price
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Adjustment Due Date through the date of payment at a rate
equal to the Agreed Rate plus five percent (5%).
(d) In no event shall the Purchase Price Adjustment Due Date be less
than 90 days after the Closing Date.
Section 2.3 Adjustment of Purchase Price Allocation. The amount of any
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adjustment to the Purchase Price payable pursuant to Section 2.2 hereof and due
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to an increase or decrease in value of one of the categories of Purchased Assets
or Assumed Liabilities as to which the Purchase Price, as provided in any Sale
Agreements, has been allocated (other than intangible assets) shall be allocated
to or deducted from each such category of Purchased Assets or Assumed
Liabilities in an amount equal to the actual increase or decrease occurring with
respect to that particular category of Purchased Asset or Assumed Liability.
Any difference between the total amount of the adjustment to the Purchase Price
and the amount of such adjustment due to changes in value of the tangible
Purchased Assets or Assumed Liabilities as to which the Purchase Price has been
otherwise allocated, shall be allocated to or deducted from intangible assets.
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ARTICLE 3.
FINANCIAL STATEMENTS
Section 3.1 Financial Statements. Attached to this Agreement as Exhibit
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B is a copy of the audited combined statements of assets, liabilities and
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shareholders' equity and audited combined statements of operations of the
Business at and for the years ended June 30, 1998 and 1999, together with the
notes thereto and the independent auditors' reports thereon, including the
audited balance sheet of the Business as at June 30, 1999 together with the
notes thereto (the "June 30, 1999 Balance Sheet"). Seller will deliver by May
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19, 2000, a copy of the unaudited combined statements of assets, liabilities and
shareholders' equity and combined statements of operations of the Business at
and for the nine months ended March 31, 2000, including the unaudited balance
sheet of the Business as at March 31, 2000 together with the notes thereto (the
"March 31, 2000 Balance Sheet"). The financial statements attached hereto as
Exhibit B and to be delivered by Seller pursuant to this Section 3.1 are
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referred to collectively as the "Financial Statements".
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Section 3.2 Representation and Warranty. Seller hereby represents and
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warrants to Buyer that the Financial Statements have been prepared from the
books and records of the Business and have been restated as described in the
notes thereto. Subject to the matters described in the last sentence of this
Section 3.2 and the qualifications set forth in the applicable auditors' reports
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and notes to the Financial Statements, the Financial Statements fairly present,
in all material respects, and on a consistent basis (except as described in the
applicable notes) the financial position and results of operations of the
Business at the dates and for the periods covered (in conformity with U.S.
generally accepted accounting principles).
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ARTICLE 4.
INDEMNIFICATION
Section 4.1 Indemnification by Seller.
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(a) Subject to Sections 4.1(b), 4.1(c) and 4.1(d), Seller agrees to
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indemnify and hold Buyer and Buyer's Affiliates harmless from and against any
and all Losses and Expenses incurred by Buyer and Buyer's Affiliates in
connection with or arising from:
(i) any breach by Seller or the International Sellers of any
of their respective covenants and agreements in the Sale
Agreements or in this Agreement;
(ii) any breach of any warranty or the inaccuracy of any
representation of Seller or the International Sellers
contained in the Sale Agreements or in this Agreement,
but not including the representations and warranties
contained in Section 5.19(h) of the U.S. Agreement or the
corresponding sections of the other Sale Agreements, in
each case without regard to "materiality" or Material
Adverse Effect;
(iii) (A) Taxes levied in relation to (or attributable to) the
Business on or prior to the Closing Date or subsequent to
the Closing Date but relating to periods ending on or
prior to and including the Closing Date or attributable
to operations through the Closing Date, but only insofar
as such Taxes have not been reflected or reserved against
in the Final Closing Date Balance Sheet; (B) taxes for
which PDGNB or any Subsidiary is liable under ' 1.1502-6
of the U.S. Treasury Regulations (or any analogous
provision of state, local or foreign law); (C)
liabilities of PDGNB or any Subsidiary under Section
4062(a) of ERISA; (D) any income taxes attributable to
the making of a Section 338(h)(10) Election; (E) any Tax
allocation or Tax sharing or similar agreement, as a
transferee or successor, by contract or otherwise binding
on Seller or any of its Affiliates; and (F) any Taxes
attributable to any adjustment to taxable income as a
result of (i) any deferred intercompany gain described in
Treasury Regulation Sections 1.1502-13 or former Treasury
Regulation Section 1.1502-14 (or any corresponding or
similar provision or administrative rule of federal,
state, local or foreign law), (ii) any excess loss
account described in Treasury Regulation Sections 1.1502-
19 and 1.1502-32 (or any corresponding or similar
provision or administrative rule of federal, state, local
or foreign law), or (iii) an adjustment under Section 482
of the Code (or any corresponding or similar provision or
administrative rule of federal, state, local or foreign
law);
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(iv) any breach by Seller or any of the International Sellers of
any covenant contained in Section 12.2 of the U.S.
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Agreement or the corresponding provisions in the other Sale
Agreements;
(v) any claim for injury to person or property occurring or
allegedly occurring at an Adjoining Property, but only to
the extent that (A) such claim arises from or is
attributable to the activities or operations of the
Business by PDGNB, any Subsidiary, or any International
Seller prior to the Closing Date, and (B) such claim arises
from any Release of Contaminants or violation of any
Environmental Law on the Real Property;
(vi) any breach or inaccuracy of the representation and warranty
contained in Section 5.19(h) of the U.S. Agreement or the
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corresponding provisions of the other Sale Agreements;
(vii) any assets or liabilities retained by Seller or its
Affiliates under the ROW Agreements; or
(viii) an amount of Taxes equal to any amount of Taxes accrued on
the March 31, 2000 Balance Sheet to the extent that such
Tax accrual exceeds the amount of Taxes properly accrued as
of such date under U.S. generally accepted accounting
principles applied consistently with past practice.
(b) Notwithstanding anything to the contrary contained herein:
(i) Seller shall be required to indemnify and hold Buyer and
Buyer's Affiliates harmless for any claims asserted under
clause (ii) of Section 4.1(a) of this Agreement with
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respect to any Losses and Expenses incurred by Buyer only
with respect to individual claims that exceed One Hundred
and Fifty Thousand United States Dollars (US $150,000)
(provided that separate claims arising from the same
occurrence shall be considered as one individual claim)
("Qualifying Claim") and then only to the extent that such
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Qualifying Claim, individually or in the aggregate with
other Qualifying Claims, exceeds Five Million Five Hundred
Thousand United States Dollars (US $5,500,000);
(ii) the aggregate amount required to be paid by Seller pursuant
to Sections 4.1 (a)(i), (ii) and (iv) shall not exceed the
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Purchase Price less any amount previously paid by Seller
pursuant to Sections 4.1(a)(v) and (vi);
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(iii) the limitations in (i) and (ii) shall not apply to
breaches of Sections 4.1, 4.2, 4.6, 5.1 or 5.2 of the U.S.
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Agreement and the corresponding provisions of the other
Sale Agreements; and
(iv) the aggregate amount required to be paid by Seller
pursuant to Sections 4.1 (a)(v) or 4.1 (a)(vi) shall not
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exceed forty million United States Dollars (US
$40,000,000), provided, however, that the amount of any
claim under Section 4.1 (a)(v) (but not Section 4.1(a)
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(vi)) shall be calculated by multiplying the amount of the
----
Losses and Expenses constituting such claim by 0.8. For
the avoidance of doubt, it is the intention of the parties
that Buyer shall be entitled to collect eighty percent
(80%) of any and all Losses and Expenses constituting
claims under Section 4.1 (a)(v) pursuant to the
------------------
indemnification provided in this Agreement, it being the
further intention of the parties that Buyer or its
Affiliates must contribute twenty percent (20%) of the
Losses and Expenses constituting any claim under Section
-------
4.1 (a)(v);
----------
(v) no indemnity shall be provided by Seller with respect to
Losses and Expenses arising from or relating to the
Savanna Sites, except for the indemnity provided in
Section 4.1(a)(ii) with respect to the breach of the
------------------
representations and warranties contained in the following
sections of the U.S. Agreement: Sections 5.10(a), (c), and
---------------- ---
(d)(i) (as applied to the Owned Real Property included in
------
the Savanna Sites), and Section 5.19(j);
---------------
(vi) no indemnity shall be provided by Seller with respect to
Losses and Expenses arising from any discontinuation of
operations or closure of facilities at any of the Real
Property on or after the Closing Date;
(vii) no claim for indemnification may be brought by Buyer or
its Affiliates under Section 4.1(a)(ii) or (vi) for breach
------------------ ----
of any representation or warranty contained in the U.S.
Agreement if such claim could also be asserted under
Section 4.1(a)(v). In determining whether any claim
-----------------
could be asserted under Section 4.1(a)(v), no
-----------------
consideration shall be given to the limitations set forth
in Section 4.1(b)(iv); and
------------------
(viii) no indemnity shall be provided by Seller pursuant to
Section 4.1(a)(v) for Losses and Expenses arising from
-----------------
those matters identified in Schedule 4.1(A)(v) hereto,
------------------
which are those Releases on the Real Property which are
reasonably likely to have an impact on any Adjoining
Property.
-14-
<PAGE>
(c) The indemnification provided for in this Section 4.1 shall
-----------
terminate two (2) years after the Closing Date (and no claims shall be made by
Buyer thereafter), except that:
(i) the indemnification by Seller shall continue as to the
representations and warranties contained in Section 5.8 of
-----------
the U.S. Agreement (and the corresponding provisions of the
other Sale Agreements) and the indemnity provided pursuant
to clauses (iii)(A), (iii) (D), (iii)(E) and (viii) of
Section 4.1(a) until the expiration of the applicable
-------------
statute of limitations;
(ii) the indemnification by Seller shall continue as to the
indemnity provided pursuant to clauses (i), (iii) (B), (C)
and (F), (iv) and (vii) of Section 4.1(a) indefinitely; and
-------------
(iii) the indemnification by Seller as to any event, fact or
circumstance of which Buyer has notified Seller or the
International Sellers in accordance with the requirements of
Section 4.3 on or prior to the date such indemnification
-----------
would otherwise terminate in accordance with this Section
-------
4.1 shall continue until the liability of Seller shall have
---
been determined pursuant to this Article 4 and Seller shall
---------
have reimbursed Buyer for the full amount of all Losses and
Expenses in accordance with this Article 4.
---------
(d) Notwithstanding anything to the contrary contained herein, in any
Sale Agreement, or in any other document, Buyer and Buyer's Affiliates shall not
be entitled to indemnification under Section 4.1(a) with respect to (i) a breach
-------------
of covenant or agreement or breach or inaccuracy of any representation or
warranty of Seller or an Affiliate of Seller in the Sale Agreements to the
extent that Buyer or Buyer's Affiliates (which shall include Buyer's and Buyer's
Affiliates' officers, employees, counsel, and authorized representatives) had
knowledge of such breach as of the Closing Date (it being understood that, for
purposes of this Section 4.1(d) only, Buyer shall be deemed to have knowledge of
--------------
the material contained in the Data Room, a true and correct copy of which will
be provided by Seller to Buyer) or (ii) any adjustment already taken into
account in determining the Final Closing Date Balance Sheet.
Section 4.2 Indemnification by Buyer.
------------------------
(a) Subject to Sections 4.2(b), 4.2(c), and 4.2(d), Buyer agrees to
--------------- ------ ------
indemnify and hold Seller and the International Sellers and their Affiliates
harmless from and against any and all Losses and Expenses incurred by Seller or
the International Sellers and their Affiliates in connection with or arising
from:
(i) any breach by Buyer of any of its covenants or agreements in
the Sale Agreements or in this Agreement;
-15-
<PAGE>
(ii) any breach of any warranty or the inaccuracy of any
representation of Buyer contained in the Sale Agreements,
in each case without regard to "materiality" or Material
Adverse Effect; or
(iii) any breach by Buyer of any covenant contained in Section
-------
11.1 or Section 12.2 of the U.S. Agreement or the
---- ------------
corresponding provisions in the other Sale Agreements.
(b) Notwithstanding anything to the contrary contained herein:
(i) Buyer shall be required to indemnify and hold Seller and
the International Sellers and their Affiliates harmless for
any claims asserted under clause (ii) of Section 4.2(a)
--------------
with respect to any Losses and Expenses incurred by Seller
or the International Sellers only with respect to
Qualifying Claims and then only to the extent that such
Qualifying Claims, individually or in the aggregate with
other Qualifying Claims, exceeds Five Million Five Hundred
Thousand United States Dollars (US $5,500,000); and
(ii) the aggregate amount required to be paid by Buyer pursuant
to Section 4.2(a) shall not exceed the Purchase Price;
-------------
(iii) the limitations in (i) and (ii) shall not apply to
breaches of Sections 6.1, 6.2 or 6.7 of the U.S. Agreement
------------ --- ---
and the corresponding provisions of the other Sale
Agreements.
(c) The indemnification provided for in this Section 4.2 shall
-----------
terminate two (2) years after the Closing Date (and no claims shall be made by
Seller or the International Sellers thereafter), except that:
(i) the indemnification by Buyer shall continue as to the
indemnity provided pursuant to clauses (i) and (iii) of
Section 4.2(a) indefinitely; and
-------------
(ii) the indemnification by Buyer as to any event, fact or
circumstance of which Seller or the International Sellers
have notified Buyer in accordance with the requirements of
Section 4.3 on or prior to the date such indemnification
-----------
would otherwise terminate in accordance with this Section
-------
4.2 shall continue until the liability of Buyer shall have
---
been determined pursuant to this Article 4 and Buyer shall
---------
have reimbursed Seller and the International Sellers for
the full amount of all Losses and Expenses in accordance
with this Article 4.
---------
(d) Notwithstanding anything to the contrary contained herein, in any
Sale Agreement, or in any other document, Seller and the International Sellers
shall not be entitled to
-16-
<PAGE>
indemnification under Section 4.2(a) with respect to a breach of covenant or
--------------
agreement or breach or inaccuracy of any representation or warranty of Buyer in
the Sale Agreements to the extent that Seller or the International Sellers
(which shall include Seller's and the International Sellers' officers,
employees, counsel, and authorized representatives) had knowledge of such breach
as of the Closing Date. It is understood that for purposes of this Section
-------
4.2(d), Seller shall be deemed to have knowledge of any information contained
------
in written due diligence material provided by Buyer to Seller.
Section 4.3 Notice of Claims.
--------- ------
(a) No party hereto shall be liable for any claim for
indemnification under this Article 4 unless written notice of each claim ("Claim
--------- -----
Notice") is delivered by the party seeking indemnification (the "Indemnified
------ -----------
Party") to the party from whom indemnification is sought (the "Indemnitor")
----- ----------
prior to the expiration of the applicable survival period. All Claim Notices
shall describe in reasonable detail the facts (to the extent then known) giving
rise to any claim for indemnification hereunder and shall include in such Claim
Notice (if then known) the amount or the method of computation of the amount of
such claim, and a reference to the provision of this Agreement or any other
agreement, document or instrument executed hereunder or in connection herewith
upon which such claim is based; provided that a Claim Notice in respect of any
--------
Action or other claim by or against a third Person as to which indemnification
will be sought shall be given within twenty-one (21) days after the Indemnified
Party receives summons, process, or other notice of such Action or other claim,
provided, further that failure to give such notice shall not release the
-------- -------
Indemnitor from its obligations hereunder, except to the extent such failure
actually prejudices the Indemnitor.
(b) In calculating any Losses or Expenses, there shall be deducted
any insurance recovery received or entitled to be received by Buyer or Seller in
respect thereof, and the Indemnitor shall be entitled to the tax benefit of with
respect to such Loss or Expense, and the Indemnified Party shall pay to the
Indemnitor the amount of such tax benefit at such time or times as and to the
extent that the Indemnified Party or any affiliate of Indemnified Party actually
realizes such benefit through a refund of tax or reduction in the amount of
taxes which the Indemnified Party or any affiliate of Indemnified Party would
otherwise have had to pay if such adjustment had not been made, calculated by
computing the amount of Taxes before and after inclusion of any items of Loss or
Expense for which indemnification was made; provided that, any such tax benefit
-------------
shall be reduced by the amount of tax detriment that the Indemnified Party
suffered as a result of any Loss or Expense.
Section 4.4 Third Person Claims. The Indemnitor may elect, but shall not
-------------------
be required, to conduct and control, through counsel of its choosing and
reasonably satisfactory to the Indemnified Party, the defense, compromise or
settlement of any third Person Action or other claim against an Indemnified
Party as to which indemnification will be sought by such Indemnified Party from
such Indemnitor hereunder, and the Indemnified Party hereby appoints the
Indemnitor as its agent and attorney-in-fact for such purpose. In any case with
respect to which the Indemnitor has elected to conduct or control the defense
thereof, the Indemnified Party shall cooperate fully in connection therewith and
shall furnish such personnel, records, information and testimony and attend
-17-
<PAGE>
such conferences, discovery proceedings, hearings, trials and appeals as may be
reasonably requested by the Indemnitor in connection therewith; provided that
--------
the Indemnified Party may participate, through counsel chosen by it and at its
own expense, in the defense of any such Action or other claim, however, the
Indemnitor and its counsel shall control such defense. The Indemnitor shall
not, without the written consent of the Indemnified Party, pay, compromise or
settle any such Action or other claim, except that the Indemnitor shall have the
right to pay, settle or compromise any Action or other claim involving only
money damages without the consent of the Indemnified Party, unless such
Indemnified Party provides to the Indemnitor an opinion of counsel to the effect
that the proposed settlement would adversely affect the post-Closing tax
liability of the Indemnified Party, in which case the Indemnitor shall not pay,
compromise, or settle such Action or other claim without the written consent of
the Indemnified Party which consent shall not be unreasonably withheld.
Section 4.5 Exclusivity of Remedy. Except as set forth in Section 9.3 of
--------------------- -----------
the U.S. Agreement and the corresponding provisions of the other Sale
Agreements, with respect to any breach by any party of its representations,
warranties, covenants, or agreements in this Agreement, the Sale Agreements and
the agreements, instruments, and documents being or to be executed and delivered
hereunder or thereunder, the sole and exclusive remedy of the other party and
its Affiliates (in law, equity, contract, tort, for contribution, under
Requirements of Law, or otherwise) shall be the indemnification provided in this
Article 4. In view of this exclusivity of remedy provision, Buyer and Seller
---------
covenant and agree for themselves and their respective Affiliates that they will
not bring, maintain, join, or prosecute any Action or other proceeding against
the other or its Affiliates for breach of the Sale Agreements or indemnity
therefor except as provided in this Agreement. The initiation or maintenance of
any Action by any Affiliate of Buyer or Seller in contravention of this Section
-------
4.5 will constitute a breach by the Buyer or the Seller, as the case may be, of
---
their covenant hereunder.
Section 4.6 Adjustment to Purchase Price. If Buyer or Seller makes any
----------------------------
payment pursuant to this Article 4, then such amount shall be treated as an
---------
adjustment to the Purchase Price. If a payment by Buyer or Seller is not
treated as an adjustment to the Purchase Price due to a Tax audit by a Tax
authority, such payment shall be grossed up for the tax effect to such recipient
so that the amount of payment is after taxes. The payor shall have the sole
right to control the Tax audit referenced in this Section 4.6 with respect to
-----------
such payment.
ARTICLE 5.
COORDINATING MATTERS
Section 5.1 Taxes. On a world-wide basis, all Taxes, recording fees,
-----
personal property taxes, title application fees, patent and trademark assignment
registration fees, and such other transfer taxes and fees arising by virtue of
the transfer of the Purchased Assets from Seller or the International Sellers,
as the case may be, to Buyer pursuant to the Sale Agreements (other than Taxes
based upon the net income or capital gain of Seller or their Affiliates arising
out of the transactions contemplated thereby) shall be paid as follows: (i)
Buyer shall pay the first Two Million United States Dollars (US $2,000,000) of
such Taxes plus any transfer taxes resulting from the
-18-
<PAGE>
making of a Section 338(h)(10) Election and (ii) Seller shall pay the amount of
such Taxes in excess of the amounts to be paid by Buyer pursuant to Section
-------
5.1(i).
------
Section 5.2 Venue; Submission to Jurisdiction; Governing Law. For
------------------------------------------------
purposes of this Agreement, the Sale Agreements, and the transactions
contemplated hereby and thereby (but not for the purposes of enforcing any
guaranty of the indemnity obligations of the Seller pursuant to Article 4 of
---------
this Agreement (a "Guaranty Agreement")), each of the parties hereto (for
------------------
themselves and for their Affiliates) agrees that any and all disputes, legal
actions, suits, or proceedings arising out of or relating to claims arising
under this Agreement, the Sale Agreements, or the transactions contemplated
hereby and thereby, whether legal or equitable in nature, or arising out of
contract, tort, Requirements of Law, for contribution or otherwise, shall be
brought solely in a state or federal court located in the County of Cook, State
of Illinois. By their signature to this Agreement, the parties, regardless of
their residence, each irrevocably submits to the jurisdiction of the courts
located in the County of Cook, State of Illinois, in any dispute, legal action,
suit or proceeding arising out of or relating to this Agreement, the Sale
Agreements, or the transactions contemplated hereby or thereby other than any
Guaranty Agreement. Each of the parties acknowledges that it has freely agreed
to so submit to jurisdiction and venue, and that without such agreement the
courts located in the County of Cook, State of Illinois might not otherwise have
jurisdiction over each of such parties. This Agreement and the Sale Agreements
shall be governed by and construed in accordance with the internal laws of the
State of Illinois, without giving effect to any choice of law provisions which
may direct the application of the laws of another jurisdiction. The initiation
or maintenance of any Action by any Affiliate of Buyer or Seller in
contravention of this Section 5.2 will constitute a breach by the Buyer or the
-----------
Seller, as the case may be, of their covenant hereunder.
Section 5.3 Waiver. For purposes of this Agreement, the Sale Agreements,
------
and the transactions contemplated hereby and thereby other than any Guaranty
Agreement, each of the parties hereby irrevocably waives all claims of immunity
from jurisdiction, attachment and execution to which it might otherwise be
entitled in any legal action or proceeding brought in any state or federal court
located in the County of Cook, State of Illinois, and further irrevocably
waives, to the fullest extent permitted by law, any objection which it may now
or hereafter have to any dispute, legal action, suit or proceeding arising out
of or relating to this Agreement, the Sale Agreements, or the transactions
contemplated hereby and thereby being brought in any federal or state court
located in the County of Cook, State of Illinois, and hereby further irrevocably
waives any claim that any such dispute, legal action, suit, or proceeding
brought in any such court has been brought in an inconvenient forum.
Section 5.4 Agent for Service of Process. For purposes of this Agreement,
----------------------------
the Sale Agreements, and the transactions contemplated hereby and thereby, other
than any Guaranty Agreement, each of the parties hereby irrevocably appoints The
Corporation Trust Company, whose address is 208 South LaSalle Street, Suite 814,
Chicago, Illinois 60604, as its designated agent for service of process in the
State of Illinois upon whom may be served any notice, process or pleading in any
dispute, legal action, suit or proceeding arising out of or relating to this
Agreement, the Sale Agreements, or the transactions contemplated hereby and
thereby, other than any Guaranty Agreement, and each further consents that
service of process on such designated agent shall have the same effect as if it
had lawfully been served personally with process in the State of Illinois;
-19-
<PAGE>
provided, that such appointment may be terminated after the tenth (10th)
--------
anniversary of the Closing Date.
Section 5.5 Actions Prior to the Closing Date. Seller and the
---------------------------------
International Sellers covenant and agree to take, or cause their Affiliates,
including, without limitation, PDGNB and the Subsidiaries, (collectively, the
"Seller Entities") to take, and Buyer covenants and agrees to take, or cause its
----------------
Affiliates to take, the following actions between the date hereof and the
Closing Date:
(a) Each party shall afford to the officers, employees and
authorized representatives of the other party (and, in the case of Buyer, its
financing sources and their representatives) reasonable access to its personnel,
offices, properties, and business and financial records to the extent reasonably
necessary and to furnish to the other party or its authorized representatives
(and, in the case of Buyer, its financing sources and their representatives)
such additional information concerning its assets, liabilities or operations as
shall be reasonably requested. Such access shall be granted during normal
business hours and upon reasonable advance notice.
(b) The Seller Entities acknowledge and agree that their
participation and cooperation will be required in order for Buyer to obtain the
financing necessary to fund all or any portion of the Purchase Price and the
Seller Entities covenant and agree to use their best efforts to participate and
cooperate with Buyer to cause any reasonable conditions to Buyer's receipt of
its financing to be fulfilled, including, without limitation, promptly taking
any action or promptly furnishing any information requested by Buyer in
connection therewith, including: (a) furnishing information, including financial
statements and projections of the Business; (b) participating in the preparation
of any offering circular, offering memorandum, private placement memorandum,
prospectus, registration statement, proxy statement or other similar documents;
(c) participating in the preparation of a road show or any similar marketing
materials and making available appropriate officers of the Business for
participation therein; and (d) making available requested due diligence
materials and appropriate officers and employees for participation in
discussions in connection therewith.
(c) The Seller Entities shall not (and shall not permit any of
their representatives or advisors to) (i) solicit, initiate, or encourage the
submission of any proposal or offer from any Person relating to the acquisition
of any stock or assets constituting part of the Business (including any
acquisition structured as a merger, consolidation, or share exchange) or (ii)
participate in any discussions or negotiations regarding, furnish any
information with respect to, assist or participate in, or facilitate in any
other manner any effort of attempt by any Person to do or seek any of the
foregoing. No Seller Entity shall vote any shares of capital stock, including,
but not limited to, the Shares, in favor of any such acquisition structured as a
merger, consolidation, or share exchange. Seller shall immediately notify Buyer
if any Person makes any proposal, offer, inquiry, or contact with respect to any
of the foregoing.
-20-
<PAGE>
(d) Buyer shall not (and shall not permit any of its representatives
or advisors to) solicit, initiate or encourage the submission of any proposal or
offer from any Person relating to the acquisition of more than 40% of the voting
securities of, or all or substantially all of the assets of, Buyer (including
any acquisitions structured as a merger, consolidation or share exchange).
Buyer shall immediately notify Seller if any Person makes any proposal, offer,
inquiry or contact with respect to any of the foregoing.
(e) Buyer and Seller covenant and agree that not later than June 19,
2000, the International Buyers and the International Sellers will enter into
Sale Agreements to effect (i) the transfer of businesses affiliated with the
Subsidiaries that are operated in Australia, New Zealand, U.K., Europe, the
People's Republic of China, Hong Kong, Singapore, and India as further described
in the chart dated April 24, 2000 and titled "Structure of GNB Worldwide"
provided by Seller to Buyer and (ii) the transfer of certain trademarks. These
agreements are referred to herein as the "ROW Agreements." Buyer and Seller
further covenant and agree that: (i) the ROW Agreements will provide for closing
of the transactions contemplated thereby simultaneously with the Closing, and
(ii) the substantive provisions of the ROW Agreements will parallel the
substantive provisions of this Agreement, modified only for compliance with
local law. The ROW Agreement covering the sale of that portion of the business
located in Australia shall contain a covenant not to compete from the sellers
thereunder, which covenant not to compete shall be on generally the same terms
and conditions as the covenant not to compete contained in Section 6 of this
---------
Agreement, including, without limitation, with respect to the global scope and
five-year duration of such covenant not to compete. Upon execution of the ROW
Agreements, Buyer shall cause the International Buyers and Seller shall cause
the International Sellers to become parties to this Agreement by executing and
delivering signature pages to this Agreement. Upon such execution and delivery,
the International Buyers and the International Sellers will be subject to the
obligations imposed on them and entitled to the benefits afforded to them by
this Agreement.
(f) Buyer and Seller covenant and agree that not later than June 12,
2000:
(i) Seller shall deliver final Disclosure Schedules to the U.S.
Agreement and to this Agreement as contemplated by Section
-------
5.7 hereof;
---
(ii) Buyer and Seller shall agree on the ROW Business Allocation
as set forth in the U.S. Agreement; and
(iii) Buyer shall have determined whether or not it will make
the 338(h)(10) Election.
Section 5.6 Buyer's Conditions to Closing. Notwithstanding any provision
-----------------------------
to the contrary herein or in any Sale Agreement, the obligations of Buyer and
the International Buyers under this Agreement and each Sale Agreement shall be
subject to the satisfaction, on or prior to the Closing Date, of each of the
following conditions:
(a) Buyer shall have obtained the financing necessary to
consummate the transactions contemplated hereby and such financing shall not
have been terminated or withdrawn
-21-
<PAGE>
and all of the conditions precedent to Buyer's receipt of such financing shall
be satisfied or waived in writing, including, without limitation, that there
shall have been a roadshow completed by Buyer and its financing sources (with
the assistance of Seller) with respect to the sale by Buyer of senior
subordinated notes (or other securities) to fund a portion of the Purchase
Price.
(b) Prior to the Closing Date, all of the obligations reflected
in the item "Closure, restructuring and other reserves" in the March 31, 2000
Balance Sheet shall have been fully performed by Seller and the International
Sellers.
Section 5.7. Due Diligence Termination Right.
-------------------------------
(a) Notwithstanding any provision to the contrary herein or in
any Sale Agreement, at any time on or prior to June 19, 2000, Buyer may
terminate this Agreement and the Sale Agreements if Buyer and its financing
sources, in their sole judgment, are not satisfied in all respects with the
results of their due diligence review of all or any part of the Business,
including, without limitation, their review of business, financial, legal,
environmental and accounting matters relating to the Business. It is expressly
understood by the parties hereto: (i) that, as of the date of this Agreement,
Buyer has not reviewed the Disclosure Schedules to the U.S. Agreement and to
this Agreement provided by Seller and therefore Buyer's rights under this
paragraph shall not be limited in any manner by any disclosure in such
Disclosure Schedules as they existed on the date hereof or as modified pursuant
to (ii) below; (ii) that at any time on or prior to June 12, 2000 , Seller shall
be entitled to provide to Buyer modified Disclosure Schedules to the U.S.
Agreement and to this Agreement which Disclosure Schedules, as modified, will
constitute the final Disclosure Schedules to the U.S. Agreement (except for
Schedule 5.19(J) to the U.S. Agreement, which may be updated through the
----------------
Closing) and to this Agreement; and (iii) that Buyer's right to terminate this
Agreement pursuant to this Section 5.7 shall include the right to terminate
-----------
if Buyer is not satisfied, in its sole discretion, with the Disclosure Schedules
to the U.S. Agreement and to this Agreement as they exist on the date hereof or
as they may be modified pursuant to (ii) of this Section 5.7.
-----------
(b) Notwithstanding any provision to the contrary herein or in
any Sale Agreement, at any time on or prior to June 19, 2000, Seller may
terminate this Agreement and the Sale Agreements if Seller, in its reasonable
judgment, determines during its due diligence review of all or any part of the
Buyer's business, including without limitation, its review of business,
financial, legal, environmental and accounting matters relating to the Buyer's
business, that any of the matters disclosed during such review would have an
adverse effect on the value of the Buyer Shares.
ARTICLE 6.
COVENANT NOT TO COMPETE
Section 6.1 Non-Competition. Seller hereby agrees, for itself and its
---------------
Affiliates that neither it nor any of its Affiliates shall, directly or
indirectly during the period of time commencing on the date hereof and
continuing until five (5) years from the Closing Date (the "Non-Compete
-----------
Period"), whether alone or together in association with others, and whether as a
------
principal, agent,
-22-
<PAGE>
owner, shareholder, officer, director, partner, member, manager, operator,
employee, proprietor, investor, independent contractor, licensor, licensee, co-
venturer, consultant, or in any other capacity whatsoever, engage in the
Business or invest in, or have a financial interest in, or be in any way
affiliated with, any Person engaged in the Business, anywhere in the world.
Seller agrees with Buyer that the geographic scope of this covenant not to
compete is the result of arm's length bargaining and is fair and reasonable in
light of the nature of the operations of the Business and the fact that some or
all facets of the Business have competed with competitors throughout the world.
The parties intend that the covenant contained in this Article 6 shall be
---------
construed as a covenant not to compete that is enforceable under applicable law.
If in any judicial proceeding a court of competent jurisdiction shall refuse to
enforce the foregoing covenant not to compete according to its terms, the
parties shall negotiate in good faith to modify or limit the scope of this
covenant in a manner they believe, after consultation with their respective
counsel, will result in the covenant being enforced in the pending judicial
proceeding, it being the intent of this provision that Buyer shall at all times
have the benefit of the foregoing covenant not to compete, except to the extent
as may be required to be limited or modified by applicable law or a judgment of
a court or competent jurisdiction.
Section 6.2 Intellectual Property. Commencing on the Closing Date and
---------------------
continuing in perpetuity, Seller shall not use, and shall cause its Affiliates
not to use, any Intellectual Property, except to the extent that such
Intellectual Property: (i) must be disclosed to comply with applicable laws and
regulations, (ii) becomes known to the public, before or after disclosure to
Buyer, other than by act or omission of Seller or its Affiliates, (iii) is
lawfully disclosed to Seller by a Person having the right to disclose it to
Seller, or (iv) is otherwise in the public domain.
Section 6.3 Customer Information. Seller acknowledges and agrees that all
--------------------
customer information (including but not limited to lists or billing information)
of PDGNB and the Subsidiaries (the "Customer Information") is confidential and
--------------------
proprietary to such entity. Following the Closing, Seller agrees to refrain
from and to cause each of its Affiliates to refrain from, utilizing any and all
Customer Information for any purpose involving competition with Buyer, including
without limitation marketing or selling such information.
Section 6.4 Remedy. The parties hereto acknowledge and agree that the
------
covenants contained in this Article 6 are reasonable and necessary for the
---------
protection and continued viability of the Business and that a breach of such
covenants would cause Buyer serious loss and damage. The parties agree that in
the event of an actual or threatened breach of such covenants, Buyer shall be
entitled to obtain an injunction restraining Seller or any of its Affiliates
from violating or continuing to violate such covenants. Nothing herein shall be
construed from prohibiting Buyer from pursuing such other remedies as may be
available to it for such breach, including the recovery of damages.
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<PAGE>
ARTICLE 7.
MISCELLANEOUS
Section 7.1 Notice. Any notice, request, instruction or other document to
------
be given hereunder shall be in writing and: (a) delivered personally; (b) sent
by Federal Express or other similarly reputable overnight courier; or (c)
transmitted by facsimile, according to the instructions set forth below. Such
notices shall be sent to the following addresses and/or facsimile numbers and
shall be deemed given: (x) if delivered personally, at the time delivered; (y)
if sent by Federal Express or other similarly reputable overnight courier, at
the time delivered to such courier, or (z) if transmitted by facsimile, at the
time when receipt is confirmed by the sending facsimile machine.
If to Seller or any of the International Sellers, to:
Pacific Dunlop Holdings (USA) Inc.
6121 Lakeside Drive, Suite 200
Reno, Nevada 89511
United States of America
Attention: President
Facsimile: 702-824-4626
with a copy to:
Gardner, Carton & Douglas
321 N. Clark Street
Suite 3400
Chicago, Illinois 60610
United States of America
Attention: Mr. Robert J. Wilczek
Facsimile: 312-644-3381
If to Buyer, to:
Exide Corporation
2901 Hubbard Road
Ann Arbor, MI 48105
United States of America
Attention: General Counsel
Facsimile: 734-877-2575
-24-
<PAGE>
with a copy to:
Kirkland & Ellis
200 E. Randolph Drive
Chicago, Illinois 60601
Attention: Mr. Carter W. Emerson, P.C.
Facsimile: 312-861-2200
or to such other address as such party may indicate by a notice delivered to the
other parties hereto in accordance with the provisions of this Section 7.1.
-----------
Section 7.2 Successors and Assigns.
----------------------
(a) Except as permitted by this Section 7.2, the rights of Buyer,
-----------
Seller and the International Sellers pursuant to this Agreement or any of the
Sale Agreements shall not be assignable by such party without the prior written
consent of the other parties; provided, however, that no such assignment shall
relieve the assigning party from any of its duties or obligations under this
Agreement or any of the Sale Agreements.
(b) This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their successors and permitted assigns. Nothing in
this Agreement, express or implied, is intended or shall be construed to confer
upon any Person other than the parties and successors and assigns permitted by
this Section 7.2 any right, remedy, benefit or claim under or by reason of this
-----------
Agreement.
Section 7.3 Entire Agreement; Amendments. This Agreement, the Sale
----------------------------
Agreements and the other agreements and documents to be delivered pursuant to
the Sale Agreements contain the entire understanding of the parties hereto with
regard to the subject matter contained herein, and supersede all prior written
or oral agreements, understandings or letters of intent between the parties
hereto, with respect to the subject matter hereof. The Sale Agreements and all
Schedules and Exhibits thereto are incorporated herein by this reference. This
Agreement shall not be amended, modified or supplemented except by a written
instrument signed by an authorized representative of each of the parties hereto.
In the event of a dispute or inconsistency between any of the Sale Agreements
and this Agreement, the terms of this Agreement shall prevail.
Section 7.4 Interpretation. Section headings are inserted for convenience
--------------
of reference only and are not intended to be a part of or to affect the meaning
or interpretation of this Agreement.
Section 7.5 Waivers. Any term or provision of this Agreement may be
-------
waived, or the time for its performance may be extended, pursuant to a written
action by the party entitled to the benefit thereof. The failure of either
party hereto to enforce at any time any provision of this Agreement shall not be
construed to be a waiver of such provision, nor in any way to affect the
validity of this Agreement or any part hereof or the right of such party
thereafter to enforce each and every such provision. No waiver of any breach of
this Agreement shall be held to constitute a waiver of any other or subsequent
breach.
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<PAGE>
Section 7.6 Partial Invalidity. Wherever possible, each provision hereof
------------------
shall be interpreted in such manner as to be effective and valid under
applicable law, but in case any one or more of the provisions contained herein
shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect, such provision shall be ineffective to the extent, but only to the
extent, of such invalidity, illegality or unenforceability without invalidating
the remainder of such invalid, illegal or unenforceable provision or provisions
or any other provisions hereof, unless such a construction would be
unreasonable.
Section 7.7 Execution in Counterparts. This Agreement may be executed in
-------------------------
one or more counterparts, each of which shall be considered an original
instrument, but all of which shall be considered one and the same agreement, and
shall become binding when one or more counterparts have been signed by each of
the parties hereto and delivered to each of Seller and Buyer.
* * * * * *
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed the day and year first above written.
SELLER:
PACIFIC DUNLOP HOLDINGS (USA) INC.
By:_______________________________
Name:_____________________________
Title:____________________________
BUYER:
EXIDE CORPORATION
By:_______________________________
Name:_____________________________
Title:____________________________
SIGNATURE PAGE TO COORDINATING AGREEMENT
<PAGE>
Exhibit A
Sale Agreements
Stock Purchase Agreement With Respect To Pacific Dunlop GNB Corporation dated as
of even date herewith between Buyer and Seller.
Asset Purchase Agreement among Pacific Dunlop Holdings (N.Z.) Limited,
____________________ and Buyer.
Asset Purchase Agreement among GNB Battery Technologies Ltd., Australian Battery
Company (Aust.) Pty Ltd., Pacific Dunlop Limited, ____________________ and
----------------------
Buyer.
Agreement for the Sale and Purchase of the Entire Issued Share Capital of GNB
Technologies NV among P.D. International Pty. Limited, Pacific Dunlop Holdings
(Europe) Ltd., ____________________ and Buyer.
Agreement for the Sale and Purchase of the Entire Issued Share Capital of GNB
Technologies Limited among Pacific Dunlop Holdings (Europe) Ltd.,
____________________ and Buyer.
Stock Purchase Agreement with respect to GNB (China) Limited among [___] and
Buyer.
Asset Purchase Agreement among Pacific Dunlop Holdings (China) Co., Ltd.,
____________________ and Buyer.
Asset Purchase Agreement among Pacific Dunlop Holdings (Singapore) Pte Ltd,
____________________ and Buyer.
Stock Purchase Agreement with respect to GNB Technologies (India) Private
Limited among Pacific Dunlop Holdings (Singapore) Pte Ltd,
____________________and Buyer.
Purchase Agreement among PD Licensing Pty Ltd, ___________, and Buyer.
<PAGE>
Exhibit B
Financial Statements
<PAGE>
AMENDMENT NO. 1 TO
COORDINATING AGREEMENT
This AMENDMENT NO. 1, dated June 19, 2000, is to that certain Coordinating
Agreement dated as of May 9, 2000 (the "Agreement"), which was executed by and
---------
between Exide Corporation, a Delaware corporation ("Buyer"), and Pacific Dunlop
-----
Holdings (USA) Inc., a Delaware corporation ("Seller").
------
The parties have now determined that they desire to amend the Agreement as
set forth herein. Therefore, the parties hereby agree as follows:
1. Except as expressly amended hereby, the Agreement remains in full force
and effect. Unless otherwise defined herein, capitalized terms used in this
Amendment No. 1 shall have the meanings assigned to them in the Agreement.
2. Exhibit A to the Agreement is hereby deleted and replaced in its
entirety with Exhibit A attached to this Amendment.
3. Section 4.2(a)(i) is hereby amended to insert the words "or, for sake
-----------------
of clarification, any International Buyer" after the word "Buyer" in the first
line of such section.
4. The following provision is added to the Agreement:
Section 5.8. Representation regarding Trademarks.
-----------------------------------
Seller hereby represents and warrants that the Sale Agreements will
convey to the Buyer or International Buyers all of the trademarks employed
by Seller or its Affiliates in the Business immediately prior to the
Closing.
5. Sections 5.7(a) and (b) are hereby amended to replace the references to
-----------------------
"June 19, 2000" therein to "June 28, 2000."
[THE REMAINDER OF THIS PAGE IS BLANK;
SIGNATURES APPEAR ON THE FOLLOWING PAGE]
<PAGE>
IN WITNESS WHEREOF, the parties have duly executed this Amendment No. 1 on
the date first above written.
EXIDE CORPORATION
By:___________________________
Name:_________________________
Title:________________________
PACIFIC DUNLOP HOLDINGS (USA) INC.
By:___________________________
Name:_________________________
Title:________________________
2
<PAGE>
Exhibit A
Sale Agreements
Stock Purchase Agreement With Respect To Pacific Dunlop GNB Corporation dated as
May 9, 2000 between Buyer and Seller.
Asset Purchase Agreement between Pacific Dunlop Holdings (N.Z.) Limited, as
seller, and Exide New Zealand Limited, as buyer.
Asset Purchase Agreement between GNB Battery Technologies Limited, Australian
Battery Company (Aust.) Pty Ltd, Pacific Dunlop Limited, as sellers, and Exide
Australia Pty Limited, as buyer.
Stock Purchase Agreement with respect to GNB Technologies NV between P.D.
International Pty Limited and Pacific Dunlop Holdings (Europe) Ltd, as sellers,
and Exide Holding Europe, as buyer.
Stock Purchase Agreement with respect to GNB Technologies Limited between
Pacific Dunlop Holdings (Europe) Ltd, as seller, and Exide Holding Europe, as
buyer.
Stock Purchase Agreement with respect to GNB Technologies (China) Limited
between Pacific Dunlop Holdings (Hong Kong) Limited, as seller, and Traeson Pte
Ltd (to be renamed Exide Holding Asia Pte Limited), as buyer.
Asset Purchase Agreement between Pacific Dunlop Holdings (Singapore) Pte Ltd, as
seller, and Bluewall Pte Ltd (to be renamed Exide Singapore Pte Limited), as
buyer.
Stock Purchase Agreement with respect to GNB Technologies (India) Private
Limited between Pacific Dunlop Holdings (Singapore) Pte Ltd, as seller, and
Traeson Pte Ltd (to be renamed Exide Holding Asia Pte Limited) as buyer.
Trademark Purchase Agreement between PD Licencing Pty Ltd, as seller, and Exide
Australia Pty Limited, as buyer.
3
<PAGE>
AMENDMENT NO. 2 TO
COORDINATING AGREEMENT
This AMENDMENT NO. 2, dated June 28, 2000, is to that certain Coordinating
Agreement dated as of May 9, 2000, as amended by Amendment No. 1 thereto dated
June 19, 2000 (the "Agreement"), which was executed by and between Exide
---------
Corporation, a Delaware corporation ("Buyer"), and Pacific Dunlop Holdings (USA)
-----
Inc., a Delaware corporation ("Seller").
------
The parties have now determined that they desire to amend the Agreement as
set forth herein. Therefore, the parties hereby agree as follows:
1. Except as expressly amended hereby, the Agreement, as amended, remains
in full force and effect. Unless otherwise defined herein, capitalized terms
used in this Amendment No. 2 shall have the meanings assigned to them in the
Agreement.
2. The following provisions are added to Section 4.1(a) of the Agreement:
--------------
(ix) actions, arbitration proceedings, controversies or disputes
arising out of or relating to that certain contract dated June 13, 1997 by
and between GNB Technologies Inc. and Margulead Ltd., including, but not
limited to, such actions, arbitration proceedings, controversies or
disputes arising out of the termination, breach or alleged breach of such
contract by GNB Technologies Inc. or its Affiliates; or
(x) the failure of Seller's or its Affiliates' recordkeeping system
regarding software licenses and maintenance services for such software to
reflect accurately such software that is in use by Seller and its
Affiliates and/or all maintenance agreements for maintaining such software.
3. Section 4.1(b)(i) is hereby amended to pluralize the word "clause" in
-----------------
the second line thereof, and to add the words ", (ix) and (x)" after the word
"(ii)" in the second line thereof.
4. Section 4.1(b)(ii) is hereby amended to replace the word "and" in the
------------------
second line with a comma and to insert the words ", (ix) and (x)" after the word
"(iv)" in the second line thereof.
[THE REMAINDER OF THIS PAGE IS BLANK;
SIGNATURES APPEAR ON THE FOLLOWING PAGE]
<PAGE>
IN WITNESS WHEREOF, the parties have duly executed this Amendment No. 2 on
the date first above written.
EXIDE CORPORATION
By: ___________________________________
Name: _________________________________
Title:_________________________________
PACIFIC DUNLOP HOLDINGS (USA) INC.
By:____________________________________
Name: Martin M. Hudson
Title: Attorney-in-Fact
2
<PAGE>
STOCK PURCHASE AGREEMENT
WITH RESPECT TO PACIFIC DUNLOP GNB CORPORATION
Dated as May 9, 2000
between
Pacific Dunlop Holdings (USA) Inc., as Seller;
and
Exide Corporation, as Buyer.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE 1.DEFINITIONS........................................................................................................... 1
Section 1.1. Definitions............................................................................................... 1
ARTICLE 2.PURCHASE AND SALE..................................................................................................... 7
Section 2.1. Purchase and Sale of Shares............................................................................... 7
Section 2.2. Purchase Price............................................................................................ 7
ARTICLE 3.CLOSING............................................................................................................... 8
Section 3.1. Closing................................................................................................... 8
Section 3.2. Documents to be Delivered to Buyer........................................................................ 8
Section 3.3. Documents to be Delivered to Seller....................................................................... 9
Section 3.4. Form of Documents......................................................................................... 9
ARTICLE 4.REPRESENTATIONS AND WARRANTIES REGARDING SELLER....................................................................... 10
Section 4.1. Organization.............................................................................................. 10
Section 4.2. Power and Authority....................................................................................... 10
Section 4.3. Agreement Binding......................................................................................... 10
Section 4.4. Absence of Conflicts...................................................................................... 10
Section 4.5. No Litigation............................................................................................. 11
Section 4.6. Title to Shares........................................................................................... 11
Section 4.7. No Advisor................................................................................................ 11
Section 4.8. Investment Representation................................................................................. 11
ARTICLE 5.REPRESENTATIONS AND WARRANTIES REGARDING PDGNB AND/ORBITS SUBSIDIARIES................................................ 11
Section 5.1. Organization.............................................................................................. 11
Section 5.2. Capitalization............................................................................................ 12
Section 5.3. Subsidiaries and Investments.............................................................................. 12
Section 5.4. Absence of Conflicts...................................................................................... 13
Section 5.5. No Litigation............................................................................................. 13
Section 5.6. No Violation.............................................................................................. 13
Section 5.7. Operations Since June 30, 1999............................................................................ 13
Section 5.8. Taxes..................................................................................................... 15
Section 5.9. Title to Assets........................................................................................... 18
Section 5.10. Real Property............................................................................................. 18
Section 5.11. Personal Property......................................................................................... 19
Section 5.12. Personal Property Leases.................................................................................. 19
Section 5.13. Governmental Permits...................................................................................... 19
Section 5.14. Intellectual Property..................................................................................... 20
Section 5.15. Employee Agreements and Plans............................................................................. 20
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C>
Section 5.16. Employee Relations........................................................................................ 23
Section 5.17. Commercial Contracts...................................................................................... 24
Section 5.18. Status of Contracts....................................................................................... 25
Section 5.19. Environmental Matters..................................................................................... 25
Section 5.20. Insurance................................................................................................. 27
Section 5.21. Product Warranties........................................................................................ 27
Section 5.22. Bank Accounts............................................................................................. 28
Section 5.23. Accounts and Records...................................................................................... 28
Section 5.24. No Misrepresentation...................................................................................... 28
Section 5.25. Sufficiency of Assets..................................................................................... 28
Section 5.26. Powers of Attorney........................................................................................ 28
ARTICLE 6.REPRESENTATIONS AND WARRANTIES OF BUYER............................................................................... 28
Section 6.1. Organization.............................................................................................. 28
Section 6.2. Power and Authority....................................................................................... 28
Section 6.3. Agreement Binding......................................................................................... 29
Section 6.4. Absence of Conflicts...................................................................................... 29
Section 6.5. Investment Representation................................................................................. 29
Section 6.6. No Advisor................................................................................................ 29
Section 6.7. Capitalization............................................................................................ 30
Section 6.8. SEC Reports............................................................................................... 30
Section 6.9. Undisclosed Liabilities................................................................................... 30
Section 6.10. Litigation................................................................................................ 30
Section 6.11. No Misrepresentation...................................................................................... 31
ARTICLE 7.ACTIONS PRIOR TO THE CLOSING DATE..................................................................................... 31
Section 7.1. Preserve Accuracy of Representations and Warranties....................................................... 31
Section 7.2. Approvals................................................................................................. 31
Section 7.3. Operations Prior to the Closing Date...................................................................... 31
Section 7.4. Antitrust Law Compliance.................................................................................. 32
Section 7.5. Intercompany Agreements................................................................................... 32
Section 7.6. Tax Sharing Agreement..................................................................................... 32
Section 7.7. Notification of Changes................................................................................... 32
Section 7.8. General................................................................................................... 32
Section 7.9. Preservation of Business.................................................................................. 32
ARTICLE 8. CONDITIONS TO CLOSING................................................................................................ 33
Section 8.1. Conditions to the Obligations of the Buyer................................................................ 33
Section 8.2. Conditions to the Obligations of Seller................................................................... 34
ARTICLE 9.TERMINATION........................................................................................................... 35
Section 9.1. Termination............................................................................................... 35
Section 9.2. Notice of Termination..................................................................................... 36
Section 9.3. Effect of Termination..................................................................................... 36
</TABLE>
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<PAGE>
<TABLE>
<S> <C>
ARTICLE 10.EXCLUSIVITY OF REMEDY................................................................................................ 36
Section 10.1. Indemnification by Seller................................................................................. 36
Section 10.2. Indemnification by Buyer.................................................................................. 36
Section 10.3. Exclusivity of Remedy..................................................................................... 36
ARTICLE 11.ADDITIONAL AGREEMENTS OF THE PARTIES................................................................................. 37
Section 11.1. Taxes..................................................................................................... 37
Section 11.2. Proceeds of Environmental Remediation Rights.............................................................. 40
Section 11.3. Employee Benefit Plan Reports............................................................................. 40
Section 11.4. Insurance Matters......................................................................................... 40
ARTICLE 12.GENERAL PROVISIONS................................................................................................... 41
Section 12.1. Notices................................................................................................... 41
Section 12.2. Confidential Information.................................................................................. 42
Section 12.3. No Public Announcement.................................................................................... 42
Section 12.4. Entire Agreement; Amendments.............................................................................. 43
Section 12.5. Successors and Assigns.................................................................................... 43
Section 12.6. Interpretation............................................................................................ 43
Section 12.7. Waivers................................................................................................... 44
Section 12.8. Expenses.................................................................................................. 44
Section 12.9. Partial Invalidity........................................................................................ 44
Section 12.10. Execution in Counterparts................................................................................. 44
Section 12.11. Governing Law............................................................................................. 44
Section 12.12. Further Assurances and Cooperation........................................................................ 44
Section 12.13. No Reliance............................................................................................... 45
Section 12.14. Disclosure Schedules...................................................................................... 45
Section 12.15. Name Change............................................................................................... 45
</TABLE>
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<PAGE>
[PAGE LEFT INTENTIONALLY BLANK]
-iv-
<PAGE>
[PAGE LEFT INTENTIONALLY BLANK]
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<PAGE>
SCHEDULES
1.1 Permitted Encumbrances
5.1 Organization
5.3 Subsidiaries and Investments
5.4 Absence of Conflicts
5.5 No Litigation
5.6 No Violation
5.7(A) Operations Since June 30, 1999
5.7(B) Operations Since June 30, 1999
5.8(D) Taxes
5.8(E) Taxes
5.8(L) Taxes
5.8(M) Taxes
5.8(N) Taxes
5.8(O) Taxes
5.8(P) Taxes
5.8(Q) Taxes
5.8(R) Taxes
5.9 Title to Assets
5.10(A) Owned Real Property
5.10(B) Leased Real Property
5.11 Personal Property
5.12 Personal Property Leases
5.13(A) Governmental Permits
5.13(B) Governmental Permits
5.14(A) Intellectual Property
5.14(B) Intellectual Property
5.14(C) Intellectual Property
5.15(A) Employee Agreements and Plans
5.15(B) Employee Agreements and Plans
5.15(C) Employee Agreements and Plans
5.15(E) Employee Agreements and Plans
5.15(F) Employee Agreements and Plans
5.15(G) Employee Agreements and Plan
5.15(I) Employee Agreements and Plans
5.16(A) Employee Relations
5.16(B) Employee Relations
5.17 Commercial Contracts
5.18 Status of Contracts
5.19(A) Environmental Matters
5.19(B) Environmental Matters
5.19(C) Environmental Matters
-vi-
<PAGE>
5.19(D) Environmental Matters
5.19(E) Environmental Matters
5.19(F) Environmental Matters
5.19(G) Environmental Matters
5.19(J) Environmental Matters
5.20 Insurance
5.21 Product Warranties
5.22 Bank Accounts
6.4 Absence of Conflicts
7.3(B) Operations Prior to Closing Date
7.5 Intercompany Agreements
EXHIBITS
A Terms of Standstill Agreement
B Terms of Registration Rights Agreement
-vii-
<PAGE>
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT, dated as of May 9, 2000 (the "Agreement") is
executed by and between PACIFIC DUNLOP HOLDINGS (USA) INC., a corporation
incorporated under the laws of the State of Delaware ("Seller") and Exide
Corporation, a corporation incorporated under the laws of the State of Delaware
("Buyer").
WHEREAS, Seller owns all of the outstanding shares of capital stock of
Pacific Dunlop GNB Corporation, a Delaware corporation ("PDGNB"); and
WHEREAS, Buyer desires to purchase from Seller, and Seller desires to sell
to Buyer, all of the outstanding shares of capital stock of PDGNB all on the
terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth Seller and Buyer agree as follows:
ARTICLE 1.
DEFINITIONS
Section 1.1. Definitions. In this Agreement, the following terms have the
-----------
meanings specified or referred to in this Section 1.1 and shall be equally
-----------
applicable to both the singular and plural forms. Any agreement referred to
below shall mean such agreement as amended, supplemented and modified from time
to time to the extent permitted by the applicable provisions thereof and by this
Agreement.
"Action" means any lawsuit, arbitration, or regulatory, governmental
or other proceeding or investigation whether at law or in equity.
"Adjoining Properties" shall mean all sites or locations other than
the Real Property or the PRP Sites to which Contaminants have migrated from the
Real Property through air, soil, surface water or groundwater.
"Affiliate" means, with respect to any Person, any other Person which
directly or indirectly controls, is controlled by or is under common control
with such Person.
"Affiliated Group" means an affiliated group as defined in Section
1504 of the Code (or any analogous combined, consolidated or unitary group
defined under state, local or foreign income Tax law) of which PDGNB, any of its
Subsidiaries or any of their Affiliates is or has been a member.
<PAGE>
"Agreement" has the meaning specified in the first paragraph of this
Agreement.
"Business" means (i) the manufacturing, production and marketing of
starting-lighting-ignition automotive and specialty batteries and supplying
original equipment manufacturers and replacement market customers with batteries
for passenger cars, light and heavy-duty trucks, golf carts, motorcycles, garden
tractors and marine use and related activities; (ii) the manufacturing,
production and marketing of batteries and allied products, parts and service for
industrial applications; and (iii) battery recycling, lead smelting and
refining, and oxide manufacturing; in each case, as conducted by PDGNB or a
Subsidiary immediately prior to the Closing Date.
"Business Day" means a day other than Saturday, Sunday or a day on
which United States national banks are closed.
"Buyer" has the meaning specified in the first paragraph of this
Agreement.
"Buyer Ancillary Agreements" means all agreements, instruments and
documents being or required to be executed and delivered by Buyer under this
Agreement.
"Buyer SEC Documents" has the meaning specified in Section 6.8.
"Buyer Shares" has the meaning specified in Section 2.2(b).
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act, 42 U.S.C. '' 9601 et seq., as currently amended, and any
regulations promulgated thereunder.
"Clean Air Act" means the Clean Air Act, 42 U.S.C. ' 7401 et seq., as
currently amended, and any regulations promulgated thereunder.
"Clean Water Act" means the Federal Water Pollution Control Act, 33
U.S.C '' 1251 et seq., as currently amended, and any regulations promulgated
thereunder.
"Closing" has the meaning specified in Section 3.1.
"Closing Date" has the meaning specified in Section 3.1.
"Code" means the Internal Revenue Code of 1986, as currently amended.
"Confidential Information" has the meaning specified in Section 12.2.
"Contaminant" means (i) oil or other petroleum products, (ii)
"hazardous wastes," as defined by RCRA, (iii) "hazardous substances," as defined
by CERCLA, (iv) "toxic substances" regulated by TSCA, including, without
limitation, polychlorinated biphenyls and asbestos; (v) "hazardous materials,"
as defined by the Hazardous Materials Transportation Act, 49 U.S.C. Section
1802, (vi) radioactive materials, including those subject to the Atomic Energy
Act, 42 U.S.C. Section
<PAGE>
2011 et seq., and (vii) any other pollutant, chemical, or substance whose
presence creates a hazard to human health or the environment, or a violation of
any Environmental Law.
"Coordinating Agreement" means that certain Coordinating Agreement
dated of even date herewith between Buyer and Seller.
"Court Order" means any judgment, order, award or decree of any
foreign, federal, state, or local court, tribunal or governmental agency and any
award in any arbitration proceeding.
"DB Plan" has the meaning specified in Section 5.15(b).
"Disclosure Schedules" means the Disclosure Schedules attached to and
made a part of this Agreement, as modified pursuant to Section 5.7 of the
Coordinating Agreement.
"Election Corporation" has the meaning specified in Section 11.1(g).
"Employee Plan" has the meaning specified in Section 5.15(b).
"Encumbrance" means any lien, charge, security interest, mortgage,
pledge, power of sale, easement, encroachment, covenant, restriction on transfer
or other restriction on or defect in title or other encumbrances.
"Environmental Law" means all Requirements of Law relating to
pollution or the regulation and protection of human health or the environment,
including, without limitation, those regarding or relating to emissions,
discharges, Releases or threatened Releases of Contaminants or otherwise
relating to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport, or handling of Contaminants.
"EPCRA" means the Emergency Planning and Community Right-to-Know Act
of 1986, 42 U.S.C. '' 11001 et seq., as currently amended, and any regulations
promulgated thereunder.
"ERISA" has the meaning specified in Section 5.15(b).
"Exchange Act" has the meaning specified in Section 6.8.
"Expenses" means any and all reasonable expenses incurred in
connection with investigating, defending or asserting any Action or overtly
threatened Action (including court filing fees, court costs, arbitration fees or
costs, witness fees, and reasonable fees and disbursements of legal counsel,
investigators, expert witnesses, accountants and other professionals).
"Final Closing Date Balance Sheet" has the meaning specified in the
Coordinating Agreement.
"Financial Statements" has the meaning specified in the Coordinating
Agreement.
-3-
<PAGE>
"GNB" means GNB Technologies Inc. and GNB Industrial Battery Company.
"Governmental Body" means any foreign, United States, state, or local
governmental authority, agency, or regulatory body.
"Governmental Permits" has the meaning specified in Section 5.13(a).
"HSR Act" means the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended.
"Intellectual Property" has the meaning specified in Section 5.14(a).
"Intercompany Agreements" means agreements between PDGNB or a
Subsidiary and an Affiliate of PDGNB other than PDGNB and any Subsidiary.
"Interim Period" has the meaning specified in Section 11.1(b).
"Insurance Policy" has the meaning specified in Section 11.4.
"Insured Claims" has the meaning specified in Section 11.4.
"IRS" means the Internal Revenue Service.
"June 30, 1999 Balance Sheet" has the meaning specified in the
Coordinating Agreement, including the notes to such balance sheet.
"Knowledge of the Seller" or similar phrases means matters actually
known to: Thomas Minner, Thomas Smith, Tom O'Hare, Mitchell Bregman, Malli Rao,
Andy Savage. Barbara Hatcher or John Bondy.
"Knowledge of the Seller Regarding Environmental Matters" or similar
phrases means matters actually known to Jerry Cooper, Larry Eagan, Steve Emmons,
Barbara Hatcher, Richard Thompson, Thomas Minner and Dave Wesley.
"Leased Real Property" has the meaning specified in Section 5.10(b).
"Losses" means losses, obligations, liabilities, settlement payments,
awards, judgments, fines, assessments, penalties, and damages.
"March 31, 2000 Balance Sheet" has the meaning specified in the
Coordinating Agreement, including the notes to such balance sheet.
"Material Adverse Effect" means any event, occurrence or condition
(other than as a result of general economic conditions or events or conditions
affecting the automotive and
-4-
<PAGE>
industrial battery industry as a whole) which has, or could reasonably be
expected to have, a material adverse effect on the financial condition, assets,
results of operations, Business, or operations of the Subsidiaries, taken as a
whole.
"Multiemployer Plan" has the meaning specified in Section 5.15(b).
"OSHA" means the Occupational Safety and Health Act, 29 U.S.C. '' 651
et seq., as currently amended, and all similar foreign, state or local statutes
and ordinances, and any regulations promulgated thereunder.
"Owned Real Property" has the meaning specified in Section 5.10(a).
"PDGNB" has the meaning specified in the second paragraph of this
Agreement.
"PDGNB Agreements" has the meaning specified in Section 5.18.
"Pension Plan" has the meaning specified in Section 5.15(b).
"Permitted Encumbrances" means the Encumbrances specifically set forth
on Schedule 1.1 hereto.
"Person" means any individual, corporation, partnership, limited
liability company or corporation, joint venture, association, joint-stock
company, trust, unincorporated organization or Governmental Body.
"Pre-Closing Period" has the meaning specified in Section 11.1(b).
"PRP Sites" shall mean all sites identified on Schedule 5.19(J) (as
----------------
such Schedule is updated by Seller from time to time in its sole discretion
prior to the Closing Date) and all other sites (other than the Real Property and
the Adjoining Properties) with respect to which PDGNB, a Subsidiary, or any of
their successors or assignees have or may have liability under any Environmental
Law.
"Purchase Price" has the meaning specified in Section 2.2.
"RCRA" means the Resource Conservation and Recovery Act, 42 U.S.C ''
6901 et seq., as currently amended, and any regulations promulgated thereunder.
"Real Property" has the meaning specified in Section 5.10(b).
"Registration Rights Agreement" has the meaning specified in Section
8.1(i).
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<PAGE>
"Release" includes any and all spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, dumping,
disposing, and any other means by which a substance may be introduced into or
travel through the environment.
"Remedial Action" shall include all actions required by a Court Order
or otherwise by a Governmental Body to (i) clean up, remove, remediate, contain,
treat, monitor, assess, evaluate, or in any other way address Contaminants, (ii)
prevent or minimize a Release or threatened Release of Contaminants, or (iii)
any other actions, including removal, remedial or other response actions as
defined in Section 9601 of the Comprehensive Environmental Response,
Compensation and Liability Act.
"Requirements of Law" means any foreign, federal, state or local law,
statute, regulation, code or ordinance of any Governmental Body currently in
effect.
"ROW Agreements" has the meaning specified in the Coordinating
Agreement.
"ROW Business Allocation" means the cash portion of the Purchase Price
(for this purpose, as such term is defined in the Coordinating Agreement)
allocated to each of the ROW Agreements as initially prepared by Buyer and as
agreed to by Seller. Buyer shall deliver such allocation calculation to Seller
by June 5, 2000. If Seller objects to Buyer's allocation, Buyer and Seller shall
work in good faith to promptly resolve such disagreement, and to the extent that
the parties cannot resolve such disagreement, the disagreement shall be
submitted to a mutually agreed independent appraiser for determination of the
allocation in accordance with applicable law, which determination shall be
binding on both Seller and Buyer. The costs of such dispute resolution shall be
borne equally by both Buyer and Seller.
"Savanna Sites" mean all PRP Sites and the Owned Real Property located
in Savanna, Illinois and Tampa, Florida more fully described at items 2 and 4 of
Schedule 5.10(A) of the Disclosure Schedules that contain an "R-C" notation at
----------------
the top of each page.
"Section 338(h)(10) Election" has the meaning specified in Section
11.1(g).
"Seller" has the meaning specified in the first paragraph of this
Agreement.
"Seller Ancillary Agreements" means all agreements, instruments and
documents being or required to be executed and delivered by the Seller under
this Agreement.
"Shares" has the meaning specified in Section 2.1.
"Short Period" has the meaning specified in Section 11.1(b).
"Standstill Agreement" has the meaning specified in Section 8.1(i).
"Subsidiary" has the meaning specified in Section 5.3.
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<PAGE>
"Tax" (and, with correlative meaning, "Taxes" and "Taxable") means any
federal, state, county, local or foreign income, alternative or add-on minimum,
gross income, gross receipts, capital gains, capital, property, sales, use,
transfer, license, excise, premium, lease, estimated, environmental,
registration, value added, stamp, real property, franchise, employment, payroll,
wage, withholding or minimum tax, ad valorem, or customs duty and any other
similar taxes or governmental charges, fees, levies, assessments or liabilities
of any kind whatsoever, whether computed on a separate or consolidated, unitary
or combined basis or in any other manner, and includes any interest, penalty or
fine, or addition to tax imposed by any Governmental Body.
"Tax Return" means any return, report or similar statement required to
be filed with respect to any Taxes (including any attached schedules),
including, without limitation, any information return, claim for refund, amended
return and declaration of estimated Tax.
"TSCA" means the Toxic Substance Control Act of 1976, 15 U.S.C. ''
2601 et seq., as currently amended, and any regulations promulgated thereunder.
"Welfare Plan" has the meaning specified in Section 5.15(b).
ARTICLE 2.
PURCHASE AND SALE
Section 2.1. Purchase and Sale of Shares. On the terms and subject to the
---------------------------
conditions of this Agreement, on the Closing Date, Seller shall sell, transfer,
assign, convey and deliver to Buyer, and Buyer shall purchase from Seller, two
thousand, one hundred and forty (2,140) shares of common stock of PDGNB and
sixty-six thousand, two hundred and seventy-three (66,273) shares of Series A
Cumulative Redeemable Preferred Stock of PDGNB, constituting all of the issued
and outstanding shares of capital stock of PDGNB (collectively, the "Shares").
Section 2.2. Purchase Price. The consideration for the Shares (the
--------------
"Purchase Price") shall be:
(a) Three Hundred and Thirty-Three Million United States Dollars (US
$333,000,000) less the ROW Business Allocation; and
(b) Four Million (4,000,000) shares of the Buyer's Common Stock, par
value $.01 per share, such number to be equitably adjusted to reflect any stock
dividend, stock split or similar action between the date hereof and the Closing
(the "Buyer Shares"); and
At the Closing, Buyer shall pay the cash portion of the Purchase Price
to Seller by wire transfer of immediately available funds to such bank account
as Seller shall direct in writing
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at least three business days prior to the Closing. After Closing, the cash
portion of the Purchase Price shall be adjusted pursuant to the Coordinating
Agreement.
ARTICLE 3.
CLOSING
Section 3.1. Closing. The closing of the purchase and sale of the Shares
-------
(the "Closing") shall be consummated at 10:00 a.m. local time on the last
business day of the month in which the last of the conditions specified in
Article 8 is satisfied or waived, at the offices of Gardner, Carton & Douglas at
---------
321 North Clark Street, in Chicago, Illinois, or at such other time or place as
shall be agreed upon by Seller and Buyer. Notwithstanding the foregoing, if the
date upon which the last of the conditions specified in Article 8 is satisfied
---------
or waived is five (5) or fewer Business Days before the last day of the month,
then the Closing shall be consummated on the fifth (5th) Business Day following
the date upon which the last of such conditions was satisfied or waived, or such
other date as may be agreed upon by Buyer and Seller. The time and date on
which the Closing is actually held is referred to herein as the "Closing Date."
The Closing shall be effective as of the close of business on the Closing Date.
Section 3.2. Documents to be Delivered to Buyer. At the Closing, Seller
----------------------------------
shall deliver to Buyer:
(a) certificates representing the Shares free and clear of all
Encumbrances, which certificates shall be duly endorsed to Buyer or accompanied
by duly executed stock powers in form satisfactory to Buyer;
(b) a copy of the certificate of incorporation of Seller and
PDGNB and each Subsidiary, each certified as of a recent date by the Secretary
of State of Delaware;
(c) a certificate of good standing of Seller and PDGNB and each
Subsidiary, each issued as of a recent date by the Secretary of State of
Delaware;
(d) a closing certificate of Seller in a form reasonably
satisfactory to Buyer;
(e) a certificate of the secretary or an assistant secretary of
Seller in a form reasonably satisfactory to Buyer, dated the Closing Date,
certifying as to: (i) Seller's and the Subsidiaries' bylaws; (ii) the
resolutions of Seller's board of directors, authorizing the execution and
performance of this Agreement, the Seller Ancillary Agreements, and the
transactions contemplated hereby; and (iii) incumbency and signatures of its
officers executing this Agreement and any Seller Ancillary Agreement;
(f) a certification, dated not more than 30 days prior to the
Closing Date, issued by PDGNB pursuant to Treasury Regulation Section 1.897-2(h)
that the stock of PDGNB is not a "United States real property interest" as
defined in Section 897 of the Code;
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<PAGE>
(g) resignations of each of the directors and officers of PDGNB
and the Subsidiaries effective as of the Closing Date; and
(h) such other certificates and documents as Buyer or its counsel
may reasonably request.
Section 3.3. Documents to be Delivered to Seller. At the Closing, Buyer
-----------------------------------
shall deliver to Seller:
(a) a copy of the certificate of incorporation of Buyer,
certified as of a recent date by the Secretary of State of Delaware;
(b) a certificate of good standing of Buyer, issued as of a
recent date by the Secretary of State of Delaware;
(c) a closing certificate of Buyer in a form reasonably
satisfactory to Seller;
(d) a certificate of the secretary or an assistant secretary of
Buyer in a form reasonably satisfactory to Seller dated the Closing Date,
certifying as to: (i) Buyer's bylaws, (ii) the resolutions of Buyer's board of
directors, authorizing the execution and performance of this Agreement, the
Buyer Ancillary Agreements, and the transactions contemplated hereby; and (iii)
incumbency and signatures of its officers executing this Agreement and any Buyer
Ancillary Agreement;
(e) certificates registered in the name of Seller representing
the Buyer Shares, free and clear of all Encumbrances except those imposed under
applicable securities laws and under the Standstill Agreement and the
Registration Rights Agreement; and
(f) such other certificates and documents as Seller or its
counsel may reasonably request.
Section 3.4. Form of Documents. The documents and instruments referred to
-----------------
in Sections 3.2 and 3.3 shall be satisfactory as to form to counsel for the
------------ ---
party to whom they are delivered.
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES REGARDING SELLER
Seller represents and warrants to Buyer as follows:
Section 4.1. Organization. Seller is a corporation duly organized, validly
------------
existing and in good standing under the laws of the State of Delaware.
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<PAGE>
Section 4.2. Power and Authority. Seller has the full corporate power and
-------------------
authority to execute and deliver this Agreement and the Seller Ancillary
Agreements and to perform its obligations hereunder and thereunder. Seller's
execution, delivery and performance of this Agreement and the Seller Ancillary
Agreements has been duly authorized and approved by all necessary corporate
action.
Section 4.3. Agreement Binding. This Agreement has been, and the Seller
-----------------
Ancillary Agreements will be, duly executed and delivered by Seller and,
assuming due authorization, execution, and delivery by Buyer, is and will be the
legal, valid and binding obligations of Seller enforceable against Seller in
accordance with their respective terms, subject to general principles of equity
and except as enforceability may be limited by applicable bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium or other similar
laws of general application relating to creditors' rights generally.
Section 4.4. Absence of Conflicts. The execution, delivery and performance
--------------------
of this Agreement and the Seller Ancillary Agreements and the consummation of
the transactions contemplated hereby and thereby, will not:
(a) conflict with, result in a breach of the terms, conditions or
provisions of, or constitute a default, an event of default or an event creating
rights of acceleration, termination or cancellation, or result in the
termination of or result in the creation or imposition of any Encumbrance upon
the Shares or any assets of PDGNB under, (i) any term or provision of the
certificate of incorporation or bylaws of Seller or any Affiliate of Seller;
(ii) any note, instrument, contract, agreement, mortgage, indenture, lease,
license, or franchise to which Seller or any Affiliate of Seller is a party or
by which it or any of its assets is bound; (iii) any Court Order; or (iv) any
Requirements of Law; except for any of the foregoing which, individually or in
the aggregate is or are not likely to have a Material Adverse Effect or hinder
or impair the consummation of the transactions contemplated hereby; or
(b) require the approval, consent, authorization or act of, or
the making by Seller or any Affiliate of Seller of any declaration,
notification, filing or registration with any Person, except for: (i) any of the
foregoing which, individually or in the aggregate, if not taken, is or are not
likely to have a Material Adverse Effect, or materially hinder or impair the
consummation of the transactions contemplated hereby; and (ii) the filing
required under the HSR Act.
Section 4.5. No Litigation. There is no Action pending or, to the
-------------
Knowledge of Seller, threatened which questions the legality or propriety of the
transactions contemplated by this Agreement or the Seller Ancillary Agreements
or which would impair the consummation of the transactions contemplated hereby
or thereby.
Section 4.6. Title to Shares. Seller has good, valid and marketable title
---------------
to the Shares, free and clear of all Encumbrances, and has full right and power
to vote and dispose of such Shares as contemplated herein. The Seller is not a
party to any option, warrant, purchase right, or other contract or commitment
that could require the Seller to sell, transfer, or otherwise dispose of any of
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<PAGE>
the Shares (other than this Agreement). The Seller is not a party to any voting
trust, proxy, or other agreement or understanding with respect to the voting of
any of the Shares.
Section 4.7. No Advisor. Neither Seller nor any of its Affiliates nor any
----------
Person acting on its or their behalf, has retained any advisor, broker,
investment banker or financial advisor in connection with this Agreement or any
transaction contemplated hereby for which Buyer or PDGNB or any Subsidiary may
be liable.
Section 4.8. Investment Representation. Seller is acquiring the Buyer
-------------------------
Shares for investment and not with a view to the distribution thereof or
dividing all or any part of its interest therein with any other Person.
ARTICLE 5.
REPRESENTATIONS AND WARRANTIES REGARDING PDGNB AND/OR
ITS SUBSIDIARIES
Seller represents and warrants to Buyer as follows:
Section 5.1. Organization. PDGNB and each of its Subsidiaries are
------------
corporations duly organized, validly existing and in good standing under the
laws of the State of Delaware. Seller has delivered to Buyer complete and
correct copies of PDGNB's and each of its Subsidiaries' certificate of
incorporation and bylaws and amendments thereto as in effect on the date hereof,
together with the minute books of PDGNB and each of its Subsidiaries. Such
certificates of incorporation and bylaws are in full force and effect. Neither
PDGNB nor any of its Subsidiaries is in violation of any provision of its
certificate of incorporation or bylaws. Each of PDGNB and its Subsidiaries is
duly qualified or licensed to do business and is in good standing as a foreign
corporation in each of the jurisdictions specified in Schedule 5.1. Neither
------------
PDGNB nor any of its Subsidiaries is required to be qualified or licensed to do
business as a foreign corporation in any jurisdiction other than those specified
in Schedule 5.1, except for those jurisdictions where the failure to so qualify
------------
is not likely to have a Material Adverse Effect or hinder or impair the ability
of Seller to consummate the transactions contemplated by this Agreement or the
Seller Ancillary Agreements. PDGNB does not have, and has not had, at any time
prior to the date hereof, any operations, employees, or assets (other than the
Shares). Each of the Subsidiaries has all requisite corporate power and
authority to own or hold under lease its properties and assets and to carry on
its business as currently conducted and to operate the properties and assets now
being operated by it.
Section 5.2. Capitalization. The authorized capital of PDGNB consists of
--------------
ten thousand (10,000) shares of common stock, par value $.0l and seventy
thousand (70,000) shares of Series A Cumulative Redeemable Preferred Stock, par
value $.0l. There are two thousand, one hundred and forty (2,140) shares of the
common stock of PDGNB issued and outstanding and sixty-six thousand, two-hundred
and seventy-three (66,273) shares of Series A Cumulative Redeemable Preferred
Stock of PDGNB issued and outstanding, all of which constitute the Shares. All
of the Shares are owned
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<PAGE>
by Seller. The Shares have been duly authorized and validly issued, are fully
paid and non-assessable, and have not been issued in violation of any preemptive
or other rights under applicable law, PDGNB's certificate of incorporation, or
the terms of any subscription, option, warrant, right, agreement, commitment or
Court Order to which PDGNB is a party, or by which it is bound. Neither PDGNB
nor any of its Subsidiaries has any outstanding subscriptions, options,
warrants, rights, agreements or other commitments granting to any Person any
interest in or right to acquire any of their securities, including, without
limitation, the Shares, or any interest therein. Neither PDGNB nor any of its
Subsidiaries has issued any security convertible into, or exchangeable for, the
Shares or other capital shares, and there is no voting trust or other agreement
or understanding to which PDGNB or Seller is a party or by which either of them
is bound with respect to the voting of the Shares. Neither PDGNB nor any of its
Subsidiaries is under any obligation, whether contingent or otherwise, to issue
or repurchase any of its capital shares or to share or make any dividend or
distribution payments based on its revenues, profits or net income. All of the
outstanding shares of capital stock of each Subsidiary of PDGNB are indirectly
owned by Seller.
Section 5.3. Subsidiaries and Investments.
----------------------------
(a) PDGNB has no subsidiaries except as described on Schedule 5.3
------------
(individually, a "Subsidiary" and collectively, the "Subsidiaries"). Except for
PDGNB's investment in the Subsidiaries and GNB Technologies Inc.'s investment in
Compagnie Francaise d'Electro-Chime, neither PDGNB nor any Subsidiary owns,
directly or indirectly, any stocks, bonds or securities or any equity or other
proprietary interest in any Person.
(b) The shares of capital stock of each Subsidiary have been duly
authorized and validly issued, are fully paid and non-assessable, and have not
been issued in violation of any preemptive or other rights under applicable law,
such Subsidiary's certificate of incorporation, or the terms of any
subscription, option, warrant, right, agreement, commitment or Court Order.
There are no outstanding subscriptions, options, warrants, rights, agreements or
other commitments granting to any Person any interest in or right to acquire any
securities of any Subsidiary or any interest therein. No Subsidiary has issued
any security convertible into, or exchangeable for, the capital shares of such
Subsidiary, and there is no voting trust or other agreement or understanding
with respect to the shares of any Subsidiary. No Subsidiary is under any
obligation, whether contingent or otherwise, to issue or repurchase any of its
capital shares or to share or make any dividend or distribution payments based
on its revenues, profits or net income.
Section 5.4. Absence of Conflicts. Except as set forth in Schedule 5.4,
---------- --------- ------------
the execution, delivery, and performance of this Agreement and the Seller
Ancillary Agreements, and the consummation of the transactions contemplated
hereby and thereby, will not:
(a) conflict with, result in a breach of the terms, conditions or
provisions of, or constitute a default, an event of default or an event creating
rights of acceleration, termination or cancellation, or result in the
termination of, or result in the creation or imposition of any Encumbrance upon
the shares or any assets of the Subsidiaries under: (i) any term or provision of
the certificate of incorporation or bylaws of PDGNB or any Subsidiary, (ii) any
note, instrument,
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contract, agreement, mortgage, indenture, lease, license, or franchise to which
PDGNB or any Subsidiary is a party or by which any of them, or any of their
assets, are bound; (iii) any Court Order; or (iv) any Requirements of Law;
except for any of the foregoing which, individually or in the aggregate, is or
are not likely to have a Material Adverse Effect or hinder or impair the
consummation of the transactions contemplated hereby and thereby; or
(b) require the approval, consent, authorization or act of, or the
making by PDGNB or any Subsidiary of any declaration, notification, filing or
registration with any Person, except, for any of the foregoing which,
individually or in the aggregate, is or are not likely to have a Material
Adverse Effect or materially hinder or impair the consummation of the
transactions contemplated hereby and thereby.
Section 5.5. No Litigation. Except as set forth in Schedule 5.5: (a)
------------- ------------
there is no Action pending or, to the Knowledge of Seller, threatened against
PDGNB or any Subsidiary or any of PDGNB's or any Subsidiary's assets; and (b)
neither PDGNB nor any Subsidiary nor any of PDGNB's or any Subsidiary's assets
is subject to any currently pending Court Order. Except as set forth in
Schedule 5.5, to the Knowledge of Sellerm there is no Action pending or
------------
threatened against any officer or director of PDGNB or any Subsidiary arising
out of his or her service as an officer or director of PDGNB or a Subsidiary.
Section 5.6. No Violation. Except as set forth in Schedule 5.6: (a) The
------------ ------------
Subsidiaries have complied and are in compliance with all Court Orders and
Requirements of Law which are applicable to their businesses, and (b) PDGNB has
complied and is in compliance with all Court Orders and Requirements of Law
which are applicable to PDGNB, except, in either case, for such Requirements of
Law as to which noncompliance is not likely to have a Material Adverse Effect.
Section 5.7. Operations Since June 30, 1999.
------------------------------
(a) Except as set forth in Schedule 5.7(A) or except as reflected
---------------
in the March 31, 2000 Balance Sheet, since June 30, 1999, there has been no
material adverse change in the business, operations, assets, financial condition
or results of operations of PDGNB and the Subsidiaries taken as a whole.
(b) Except as set forth in Schedule 5.7(B), or except as
---------------
reflected in the March 31, 2000 Balance Sheet, since June 30, 1999, PDGNB and
the Subsidiaries have conducted their businesses only in the ordinary course.
Specifically, since June 30, 1999, except as set forth in Schedule 5.7(B), PDGNB
---------------
and the Subsidiaries, taken collectively, have not:
(i) made any material change in operations;
(ii) made any capital expenditure or entered into any
contract or commitment therefor in excess of the capital
expenditures disclosed in the "Fiscal Year 2000 Open
Sanction Summary" attached to Schedule 5.7(B).
---------------
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<PAGE>
(iii) sold, leased (as lessor), assigned, transferred or
otherwise disposed of, or imposed or suffered to be
imposed any Encumbrance on, any assets, except for
inventory and other personal or real property, sold,
leased or otherwise disposed of for fair value in the
ordinary course of business consistent with past practice
and except for Permitted Encumbrances;
(iv) canceled any debts owed to or claims held (including the
settlement of any Action) other than in the ordinary
course of business consistent with past practice;
(v) created, incurred or assumed, or agreed to create, incur
or assume, any indebtedness for borrowed money or entered
into, as lessee, any capitalized lease obligations (as
defined in Statement of Financial Accounting Standards No.
13) or guaranteed any such indebtedness or leases of
others or made any loans other than in the ordinary course
of business consistent with past practice;
(vi) written off as uncollectible or accelerated or delayed
collection of notes or accounts receivable in advance of
or beyond their regular due dates or the dates when the
same would have been collected other than in the ordinary
course of business consistent with past practice;
(vii) delayed or accelerated payment of any accounts payable or
other liabilities beyond or in advance of their due date
or the date when such liabilities would have been paid
other than in the ordinary course of business consistent
with past practice;
(viii) made any distribution of assets (including payments of
cash) to any of its Affiliates (not including PDGNB or any
Subsidiary) other than pursuant to agreements entered into
in the ordinary course of business consistent with past
practice or declared or paid any dividends (provided that
Seller shall have the right to remove and retain all cash
held by PDGNB or any Subsidiary), or redeemed,
reclassified or purchased or otherwise acquired any shares
of its capital stock or authorized or issued any shares of
its capital stock or any option, warrant or other right to
purchase or acquire any such shares;
(ix) entered into or, except as set forth in Schedule 5.15(A),
----------------
amended any employment, severance or similar agreement or
arrangement or made any increases in the wages, bonuses,
and benefits of its employees (other than any increases
made in the ordinary course of business consistent with
past practice);
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<PAGE>
(x) waived any rights or settled any claims, except for such
waivers or settlements granted or entered into in the
ordinary course of business;
(xi) made any change in any method of accounting;
(xii) suffered or incurred any damage, destruction, fire,
explosion, accident, flood or other casualty loss or act
of God (whether or not covered by insurance) to any
material operating asset or group of operating assets;
(xiii) entered into or amended any purchase or sale contract
outside the ordinary course of business;
(xiv) suffered any amendment, termination, suspension or
revocation of, any Governmental Permit;
(xv) adopted any Employee Plan or amended or modified any
already existing Employee Plan;
(xvi) amended their respective certificates of incorporation or
bylaws;
(xvii) manufactured inventory in excess of its expected needs;
or
(xviii) where applicable, agreed to do any of the foregoing.
Section 5.8. Taxes.
-----
(a) PDGNB and each of the Subsidiaries and their Affiliates,
or their respective shareholders have accurately prepared and timely filed
(including all extensions) all Tax Returns and each Affiliated Group has timely
filed all income Tax Returns required to be filed with respect to each taxable
period during which PDGNB or any of its Subsidiaries or any of their Affiliates
was a member of the Affiliated Group.
(b) All such Tax Returns have been prepared in compliance
with applicable Requirements of Law and are true and correct and properly
reflect the Taxes due for the periods covered thereby.
(c) All Taxes due and payable by PDGNB or the Subsidiaries
and their Affiliates and each Affiliated Group have been properly paid.
(d) Except as disclosed in Schedule 5.8(D), none of PDGNB,
---------------
any of the Subsidiaries or their affiliates or any Affiliated Group or their
shareholders has waived any law or regulation fixing, or consented to the
extension of, any period of time for assessment of any Taxes
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<PAGE>
which waiver or consent is currently in effect nor been requested or been
granted an extension of time for filing any Tax Return which has not yet been
filed.
(e) Except as disclosed in Schedule 5.8(E), there are no material
---------------
elections, consents or agreements with tax authorities other than those
reflected on tax forms filed by PDGNB, any of the Subsidiaries or their
shareholders with tax authorities.
(f) There are no outstanding balances of deferred gain or loss
accounts related to deferred intercompany transactions with respect to PDGNB or
the Subsidiaries under Sections 1.1502-13 or 1.1502-14 of the Treasury
Regulations and no excess loss accounts as described in Treasury Regulation
Section 1.1502-19 and 1.1502-32 (or any corresponding or similar provision or
administrative rule of federal, state, local or foreign income tax law) with
respect to PDGNB and the Subsidiaries.
(g) Other than the Tax Sharing Agreement with the Pacific Dunlop
Investments (USA) Inc. consolidated group, neither PDGNB nor any of the
Subsidiaries is (or ever has been) a party to any tax sharing or tax allocation
agreement, and has not assumed the tax liability of any other person under
contract or agreed to indemnify any other Person with respect to Taxes.
(h) There are no Encumbrances on any of the assets of PDGNB or any of
the Subsidiaries with respect to Taxes, other than liens for Taxes which are not
yet due and payable or for Taxes that are being contested in good faith through
appropriate proceedings and for which appropriate reserves have been
established.
(i) The pre-Closing Date disposition of the stock of New Enpak, Inc.
and Pacific Chloride, Inc. and any contribution to capital or settlement of
intercompany debt of PDGNB or any Subsidiary prior to the Closing will have no
Tax impact on PDGNB or the Subsidiaries and will not result in any Tax liability
being imposed on PDGNB or any Subsidiary or an accrual of Tax liability on the
Final Closing Date Balance Sheet.
(j) The method of allocating income and deductions to PDGNB and the
Subsidiaries complies with the principles set forth in Section 482 of the Code.
(k) Buyer is not required to withhold tax on the purchase of the PDGNB
stock by reason of Section 1445 of the Code. Seller is not a "foreign person"
(as that term is defined in Section 1445 of the Code). Prior to the date of
Closing, Seller will deliver to Buyer an affidavit dated as of the Closing and
sworn under penalty of perjury, setting forth the names, addresses and federal
tax identification numbers of Seller, PDGNB, an each Subsidiary stating that
Seller, PDGNB, and each Subsidiary are not foreign persons within the meaning of
Section 1445 of the Internal Revenue Code.
(l) Except as set forth on Schedule 5.8(L), no deficiency or proposed
---------------
adjustment (which has not settled or otherwise resolved) for (A) any amount of
Tax has been proposed, asserted or assessed by any taxing authority against
PDGNB, its Subsidiaries or their Affiliates or (B) any
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<PAGE>
material amount of Tax has been proposed, asserted or assessed by any taxing
authority against any Affiliated Group with respect to a taxable period during
which PDGNB or any of its Subsidiaries or any of their Affiliates was a member
of the Affiliated Group.
(m) Except as set forth on Schedule 5.8(M), there is no action, suit,
---------------
taxing authority proceeding or audit now in progress, pending or, to the
Knowledge of Seller, threatened against or with respect to PDGNB, its
Subsidiaries or their Affiliates or against or with respect to any Affiliated
Group with respect to any income Taxes for a taxable period during which PDGNB
or any of its Subsidiaries or any of their Affiliates was a member of the
Affiliated Group.
(n) Except as set forth on Schedule 5.8(N), no claim has ever been
---------------
made by a taxing authority in a jurisdiction where PDGNB, its Subsidiaries or
their Affiliates, respectively, do not file Tax Returns that such entity is or
may be subject to Taxes assessed by such jurisdiction.
(o) Except as set forth on Schedule 5.8(O), PDGNB, its Subsidiaries
---------------
and their Affiliates will not be required (A) as a result of a change in method
of accounting for a taxable period ending on or prior to the Closing Date, to
include any adjustment in taxable income for any taxable period (or portion
thereof) ending after the Closing Date, (B) as a result of any "closing
agreement," as described in Section 7121 of the Code (or any corresponding
provision of state, local or foreign income Tax law), to include any item of
income in, or exclude any item of deduction from, taxable income for any taxable
period (or portion thereof) ending after the Closing Date, (C) as a result of
any deferred intercompany gain described in Treasury Regulation Sections 1.1502-
13 or former Treasury Regulations Section 1.1502-14 or any excess loss account
described in Treasury Regulation Sections 1.1502-19 and 1.1502-32 (or any
corresponding or similar provision or administrative rule of federal, state,
local or foreign income tax law), to include any item of income in taxable
income for any taxable period (or portion thereof) ending after the Closing Date
or (D) any installment sale made or prepaid income attributable to a taxable
period ending on or prior to the Closing Date.
(p) Except as set forth on Schedule 5.8(P), PDGNB, its Subsidiaries
---------------
and their Affiliates have not made any payments, and are not and will not become
obligated (under any contract entered into on or before the Closing Date) to
make any payments, that will be non-deductible under Section 280G of the Code
(or any corresponding provision of state, local of foreign income Tax law).
(q) Except as set forth on Schedule 5.8(Q), PDGNB, its Subsidiaries
---------------
and their Affiliates have no obligation or liability for the payment of Taxes of
any other Person, including, but not limited to the following, a liability of
PDGNB, its Subsidiaries or their Affiliates for the payment of any Tax arising
(A) as a result of being (or ceasing to be) a member of any Affiliated Group (or
being included (or required to be included) in any Tax Return relating thereto),
(B) as a result from any expressed or implied obligation to indemnify another
person, and (C) as a result from PDGNB, its Subsidiaries or their Affiliates
succeeding to the Tax liability of any other person as a successor, transferee
or otherwise.
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(r) Except as set forth on Schedule 5.8(R), neither PDGNB nor any
---------------
of its Subsidiaries or any of their Affiliates has made any election under
Section 341(f) of the Code (or any corresponding provision of state, local or
foreign income Tax law).
Section 5.9. Title to Assets. The Subsidiaries are the exclusive and
---------------
absolute owners of and have good title to, or a valid leasehold interest to, all
of the personal property in the United States, Canada, and Japan reflected in
the June 30, 1999 Balance Sheet (other than the property in the United States,
Canada, and Japan disposed of since the date of the June 30, 1999 Balance Sheet
in the ordinary course of business consistent with past practice for fair value)
in the amounts and categories reflected therein, and all personal property in
the United States, Canada, and Japan acquired after the date of the June 30,
1999 Balance Sheet, free and clear of all Encumbrances, except for: (a)
Permitted Encumbrances; (b) the lien of current taxes not yet due and payable,
and (c) other exceptions disclosed in Schedule 5.9. Except as disclosed in
------------
Schedule 5.9, the personal property that is utilized in the operation of the
------------
Subsidiaries' business is usable in the ordinary course of the Subsidiaries'
business and conforms to all applicable statutes, ordinances and regulations
relating to its construction, use and operation, except where such nonconformity
is not likely to have a Material Adverse Effect.
Section 5.10. Real Property.
-------------
(a) Schedule 5.10(A) contains a complete and accurate list,
----------------
including a brief description of each parcel of real property currently owned by
each Subsidiary (the "Owned Real Property") and a brief description of each
option held by each Subsidiary to acquire any real property.
(b) Schedule 5.10(B) sets forth a complete and accurate list,
---------------
including a brief description of the material terms of all material leases,
subleases or similar agreements providing for the use of real property under
which each Subsidiary is lessee or sublessee of, or holds or operates, any real
property owned by any third Person (the "Leased Real Property"). The Owned Real
Property and the Leased Real Property are collectively referred to herein as the
"Real Property."
(c) Each Subsidiary is the exclusive and absolute owner and has
good and marketable title to the Owned Real Property owned by it and a good and
valid leasehold interest in all of the Leased Real Property leased by it, free
and clear of all Encumbrances except for Permitted Encumbrances. The occupation,
possession and use of the Leased Real Property by each Subsidiary has not been
disturbed and, to the Knowledge of Seller, no claim has been asserted or
threatened which is adverse to the rights of such Subsidiary to the continued
occupation, possession and use of the Leased Real Property, as currently
utilized.
(d) With respect to each such parcel of Owned Real Property,
except as disclosed on Schedule 5.10(A): (i) there are no outstanding options or
----------------
rights of first refusal of third parties with respect to the purchase, lease or
use of any such property or any portion thereof or any interest therein (other
than the right of Buyer pursuant to this Agreement); and (ii) the current use of
the
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<PAGE>
Owned Real Property does not violate in any material respect any instrument of
record or agreement affecting such Owned Real Property.
Section 5.11. Personal Property. Schedule 5.11 contains a list of all
----------------- -------------
machinery, equipment, and vehicles owned by the Subsidiaries having an original
cost of one-hundred thousand United States dollars (US$100,000) or more.
Section 5.12. Personal Property Leases. Schedule 5.12 contains a brief
------------------------ -------------
description of each lease or other agreement or right under which each
Subsidiary is lessee of, or holds or operates, any machinery, equipment, or
vehicle owned by a third Person, except those which are terminable by such
Subsidiary without cost or penalty on 30 days' or less notice or which provide
for annual rentals of less than one-hundred thousand United States dollars (US$
100,000).
Section 5.13. Governmental Permits.
--------------------
(a) Except as disclosed in Schedule 5.13(A), each Subsidiary
owns, holds or possesses all material licenses, certificates, franchises,
permits, privileges, immunities, approvals and other authorizations from a
Governmental Body which are necessary to entitle each Subsidiary to own or
lease, operate and use its assets and conduct its operations substantially as
currently operated (herein collectively called "Governmental Permits").
Notwithstanding the foregoing, Governmental Permits required under Environmental
Laws are addressed solely in Section 5.19(b).
---------------
(b) Except as set forth in Schedule 5.13(B): (i) each Subsidiary
----------------
has fulfilled and performed its obligations under each of the Governmental
Permits, except for such nonfulfillment or nonperformance which is not likely to
have a Material Adverse Effect; and (ii) no written notice of cancellation,
revocation, suspension, or default or of any dispute concerning any Governmental
Permit has been received by any Subsidiary and, to the Knowledge of Seller,
there is no basis for the issuance of such notice except as a result of the
consummation of the transactions contemplated hereby or except as is not likely
to have a Material Adverse Effect.
Section 5.14. Intellectual Property.
---------------------
(a) Except as set forth on Schedule 5.14(A) there are no
----------------
material patents, patent applications, trademarks or trademark registrations,
service marks or service mark registrations, trade names, Internet domain names,
corporate names, or any applications to register any of the foregoing,
copyrights, licenses to or from any Person with respect to any of the foregoing,
used by each Subsidiary or otherwise relating to the business substantially as
currently conducted by each Subsidiary (collectively, the "Intellectual
Property").
(b) Each item constituting part of the Intellectual Property
owned by PDGNB or any of its Subsidiaries has been, to the extent indicated in
Schedule 5.14(B), duly registered, filed or issued, as the case may be, as is
----------------
indicated in Schedule 5.14(B), and such registrations, filings and issuances
----------------
remain in
----------------
full force and effect.
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<PAGE>
(c) Except as set forth on Schedule 5.14(C), PDGNB and the
----------------
Subsidiaries own and possess all right, title and interest in and to the
Intellectual Property, and PDGNB and the Subsidiaries have not received written
notice of any claim by any Person contesting the validity, enforceability, use
or ownership of any Intellectual Property, patent disclosures or inventions or
asserting that any Subsidiary is infringing the intellectual property of others.
Schedule 5.14(C) sets forth all technology (including Intellectual Property)
----------------
owned by third parties and used by PDGNB and the Subsidiaries. To the Knowledge
of Seller, except as set forth in Schedule 5.14(C), no Person is infringing the
----------------
rights of any Subsidiary with respect to any Intellectual Property. PDGNB and
each Subsidiary uses all reasonable efforts to protect its trade secrets.
Section 5.15. Employee Agreements and Plans.
-----------------------------
(a) Except as described in Schedule 5.15(A), neither PDGNB nor
----------------
any Subsidiary is a party to or bound by any collective bargaining agreement,
employment agreement, severance agreement, consulting, independent contractor or
service agreement, deferred compensation agreement, confidentiality agreement or
covenant not to compete which is material to its business.
(b) For purposes of this Agreement, (i) "ERISA" means the
Employee Retirement Income Security Act of 1974, as currently amended, and any
regulations promulgated thereunder, (ii) the term "Employee Plan" includes any
written pension, retirement, savings, disability, medical, dental, health, life
(including, without limitation, any individual life insurance policy under which
an employee of PDGNB or any Subsidiary is the named insured and as to which
PDGNB or any Subsidiary makes premium payments, whether or not PDGNB or any
Subsidiary is the owner, beneficiary or both of such policy), incentive,
severance pay, death benefit, group insurance, profit-sharing, deferred
compensation, stock option, stock purchase, bonus, capital accumulation plan,
vacation pay, trust, contract, agreement, or policy (including, without
limitation, any pension plan as defined in Section 3(2) of ERISA ("Pension
Plan"), and any written welfare plan as defined in Section 3(1) of ERISA
("Welfare Plan")), whether or not any of the foregoing is funded or insured,
which provides benefits to current or former employees of PDGNB or any
Subsidiary, and to which PDGNB or any Subsidiary is a party or by which it (or
any of its rights, properties or assets) is bound, and (iii) the term "DB Plan"
includes any Pension Plan that is subject to the pension benefit insurance
provisions of Title IV of ERISA, or that is subject to Section 412 of the Code
or Part 3 of Subtitle B of Title I of ERISA, and (iv) the term "Multiemployer
Plan" includes any Pension Plan described at Section 4001(a)(3) of ERISA. Except
as described in Schedule 5.15(B), (i) neither PDGNB nor any Subsidiary maintains
----------------
and none of them is required to contribute to any Employee Plan on behalf of its
employees; (ii) no current or former employees of PDGNB or any Subsidiary are
covered under any Employee Plan; and (iii) each Employee Plan that is intended
to be qualified under Section 401(a) of the Code has received a favorable
determination letter of the IRS stating that the plan meets the requirements of
the Code and that the trust associated with the plan is tax-exempt under Section
50 1(a) of the Code and to the Knowledge of Seller, there is no reason why any
such Employee Plan would no longer meet such requirements as currently in
effect.
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<PAGE>
(c) Except as disclosed on Schedule 5.15(C), neither PDGNB nor any
----------------
Subsidiary sponsors, contributes to, or has any actual or potential liability or
obligation under, any Multiemployer Plan or DB Plan, and neither PDGNB nor any
Subsidiary is a guarantor of benefits under the Multiemployer Plan or DB Plan of
any other company. PDGNB or a Subsidiary is a guarantor of benefits if such
company could be liable either under a contractual guarantee or under a
provision of law such as Section 4062(a) of ERISA.
(d) Each Welfare Plan which is a group health plan (within the
meaning of Section 5000(b)( 1) of the Code) complies in all material respects
with, and has been maintained and operated in all material respects in
accordance with, each of the health care continuation requirements of Section
162(k) of the Code as in effect for years beginning prior to 1989, Section 4980B
of the Code for years beginning after December 31, 1988, and Part 6 of Title I,
Subtitle B of ERISA.
(e) Except as disclosed in Schedule 5.15(E), neither PDGNB nor any
----------------
Subsidiary has any liabilities for post-retirement welfare benefits, including
retiree medical benefits.
(f) (i) Each Employee Plan, the administrator and fiduciaries of each
Employee Plan, PDGNB and each Subsidiary have complied with the applicable
requirements of ERISA (including, but not limited to, the fiduciary
responsibilities imposed by Part 4 of Title I, Subtitle B of ERISA), the Code
and any other applicable Requirements of Law governing each Employee Plan,
except for such noncompliance as is not likely to have a Material Adverse Effect
and (ii) each Employee Plan has at all times been properly administered in
accordance with all such Requirements of Law, except for such impropriety as is
not likely to have a Material Adverse Effect. Except as disclosed on Schedule
--------
5.15(F), each Employee Plan has been maintained and administered in substantial
-------
compliance with its terms.
(g) Except as disclosed on Schedule 5.15(G), neither PDGNB nor any
----------------
Subsidiary is delinquent as to contributions or payments to or in respect of any
Employee Plan as to which PDGNB or any Subsidiary is obligated to make
contributions or payments, nor has PDGNB or any Subsidiary failed to pay any
assessments made with respect to any such Employee Plan. All contributions,
accruals and payments with respect to Employee Plans that are required to be
made by PDGNB or any Subsidiary with respect to periods ending on or before the
Closing Date (including periods from the first day of the then-current plan or
policy year to and including the Closing Date) have been made or will be accrued
before the Closing Date by PDGNB or any Subsidiary in accordance with the
appropriate actuarial valuation report, plan documents, trust documents,
insurance contracts or arrangements or Requirements of Law. None of the
Employee Plans has any material unfunded liabilities which are not reflected in
the Financial Statements.
(h) With respect to each Employee Plan, there has not occurred, nor is
any person contractually bound to enter into, any non-exempt "prohibited
transaction" within the meaning of Section 4975 of the Code or Section 406 of
ERISA.
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<PAGE>
(i) Neither PDGNB nor any Subsidiary has any liability under any
"employee pension benefit plan" (within the meaning of Section 3(2) of ERISA)
subject to Title IV of ERISA, maintained by PDGNB or any Subsidiary and covering
current or former employees of PDGNB or any Subsidiary, that has been terminated
and no employee pension benefit plan maintained by PDGNB or any Subsidiary has
been the subject of a "reportable event" (within the meaning of Section 4043 of
ERISA) as to which notices would be required to be filed with the Pension
Benefit Guaranty Corporation, other than events reportable on Form 5310 of the
IRS. Except as disclosed in Schedule 5.15(I), neither PDGNB nor any Subsidiary
----------------
has withdrawn from any Multiemployer Plan or taken any action to do so. No
action has been taken to terminate a DB Plan that would result in any current or
future liability.
(j) No proceeding by the Pension Benefit Guaranty Corporation to
terminate any Pension Plan in accordance with Subtitle 1 of Title IV of ERISA
has been instituted or, to the Knowledge of Seller, threatened.
(k) Neither PDGNB nor any Subsidiary would incur more than Three
Hundred Thousand Dollars (U.S.$300,000) of withdrawal liability in the event of
the complete withdrawal by PDGNB or any Subsidiary (or by any other employer,
assuming that PDGNB or any Subsidiary were required to satisfy the liability as
guarantor or indemnitor of benefits) from all Multiemployer Plans, and could
incur (directly or indirectly) no more than Three Hundred Thousand Dollars
(U.S.$300,000) of liability under Multiemployer Plans as described in Seller's
contracts with Transervice Logistics, Inc., taking into account all provisions
of the Multiemployer Plans and related collective bargaining agreements that
apply either now or as of the Closing to determine the withdrawal liability.
Assuming a seven percent (7%) interest rate for purposes of calculating the
liabilities associated with the GNB Pension Plan, the funded current liability
percentage of the GNB Pension Plan, determined as of June 30, 1999 by the Plan's
actuary under Code Section 4.12(1)(8), is not less than ninety-two percent
(92%).
(l) Prior to the Closing, with respect to each Employee Plan, PDGNB
and each Subsidiary has provided Buyer or its representative a true and complete
copy of the plan documents, a summary plan description, (and, if applicable,
related trust documents) and all amendments thereto and written interpretations
thereof together with (i) the three most recent annual reports prepared in
connection with each such Employee Plan (Form 5500 including, if applicable,
Schedule B thereto); (ii) the most recent IRS determination letter with respect
to each Employee Plan designed to qualify under Code Section 401(a); (iii) all
trust documents, insurance contracts or other funding arrangements; (iv) an
actuarial study of any post-employment life or medical benefits provided, if
any; and (v) the most recent actuarial report for each DB Plan. Benefits under
any Employee Plan are as represented in such documents and have not been
increased or modified (whether orally or in writing) subsequent to the dates of
such documents.
(m) No Person will become entitled to any bonus or payment from PDGNB
or any Subsidiary by virtue of this Agreement or the consummation of the
transactions contemplated hereby, which bonus or payment (i) is not adequately
reflected and reserved on the June 30, 1999
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<PAGE>
Balance Sheet, or (ii) would constitute an "excess parachute payment" as
described in Section 280G of the Code.
(n) Except as previously disclosed above, neither PDGNB nor any of its
Subsidiaries has any actual or potential material liability to the Pension
Benefit Guaranty Corporation, the IRS or the Department of Labor or with respect
to any multiemployer plan or other Pension Plan currently or previously
maintained by members of the controlled group of companies (as defined in
Section 414 of the Code) that includes PDGNB or any of its Subsidiaries and no
condition exists that presents a material risk to PDGNB or any of its
Subsidiaries of incurring such a liability.
Section 5.16. Employee Relations.
------------------
(a) Except as set forth in Schedule 5.16(A): (i) Each Subsidiary is in
----------------
compliance with all applicable Requirements of Law with respect to labor and
employment, including employment practices, employment verifications, terms and
conditions of employment and wages, overtime pay, and hours, and OSHA except for
such noncompliance as is not likely to have a Material Adverse Effect; (ii)
neither PDGNB nor any Subsidiary has engaged in any unfair labor practice or
illegally discriminated with regard to any aspect of employment on the basis of
any legally prohibited category or classification; and (iii) with respect to
employees and former employees who rendered services to, or participated in
conduct or activities in connection with any Subsidiary, neither PDGNB nor any
Subsidiary is liable for any arrears of wages, salaries or other payments.
(b) Except as set forth in Schedule 5.16(B), there are no: (i) unfair
----------------
labor practice charges or complaints pending or, to the Knowledge of Seller,
threatened against PDGNB or any Subsidiary before the National Labor Relations
Board; (ii) discrimination charges pending or, to the Knowledge of Seller,
threatened against PDGNB or any Subsidiary before any federal, state or local
agency or authority; (iii) complaints, charges or citations pending or, to the
Knowledge of Seller, threatened against PDGNB or any Subsidiary under OSHA; (iv)
to the Knowledge of Seller, labor strike, stoppage, attempt to organize an
unrepresented bargaining unit, attempt to decertify the recognized union or
material controversies pending or threatened between PDGNB or any Subsidiary and
its employees or any labor union or organization representing or claiming to
represent such employees' interests; or (v) collective bargaining agreement
currently being negotiated by PDGNB or any Subsidiary with respect to its
employees.
Section 5.17. Commercial Contracts. Except as set forth in Schedule
-------------------- --------
5.17, neither PDGNB nor any Subsidiary is a party to or bound by:
----
(a) any consignment, distributor, dealer, manufacturer's
representative, sales agency, advertising representative or advertising or
public relations contract or agreement which is reasonably anticipated by PDGNB
or any Subsidiary to involve the payment of more than one-hundred thousand
United States dollars (US$100,000) per year;
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<PAGE>
(b) any contract, agreement or commitment regarding the sale or
other disposition of products or services, or for the purchase of raw materials,
products or services which is reasonably anticipated by PDGNB or any Subsidiary
to involve the receipt or payment of more than one-hundred thousand United
States dollars (US$100,000) per year;
(c) any guarantee or indemnification agreement for the benefit
of any Person made or given outside of the ordinary course of business;
(d) any Tax sharing or Tax allocation agreement;
(e) any contract, agreement or commitment which provides for the
incurrence of indebtedness for borrowed money or capitalized lease obligations;
(f) any partnership or joint venture agreement;
(g) any material license of software or other intellectual
property;
(h) any agreement, contract or commitment relating to capital
expenditures of an amount or value in excess of one hundred thousand United
States dollars (US$100,000);
(i) any agreement that restricts or purports to restrict the
business activity of PDGNB or any Subsidiary or limits the ability of PDGNB or
any Subsidiary to engage in any line of business or compete with any Person; or
(j) any agreement that was not entered into in the ordinary
course of business consistent with past practice and that involves annual
payments in excess of one hundred thousand United States dollars ($100,000).
Section 5.18. Status of Contracts. Except as set forth in Schedule 5.18
--------- --------- -------------
hereto: (a) each of the leases, contracts and other agreements listed in
Schedules 5.10(B), 5.12, 5.14, 5.15 and 5.17 (collectively, the "PDGNB
----------------- ---- ---- ---- ----
Agreements") constitutes a legal, valid and binding obligation of PDGNB or one
of its Subsidiaries (subject to bankruptcy, insolvency, reorganization,
moratorium and similar laws of general application relating to or affecting
creditors' rights and to general equity principles) and is in full force and
effect; and (b) PDGNB or any Subsidiary (as the case may be) is not, nor, to the
Knowledge of Seller, alleged to be, in material breach of, or material default
under, any of the PDGNB Agreements nor, to the Knowledge of Seller, is any other
party thereto in such breach or default and, to the Knowledge of the Seller, no
event has occurred which the notice or lapse of time would constitute such a
breach or default or permit termination, modification or acceleration of any of
the PDGNB Agreements.
Section 5.19. Environmental Matters. Notwithstanding any other
---------------------
provision of this Agreement, this Section 5.19 contains the only representations
------------
or warranties of Seller with respect to Environmental Law or environmental
matters, and no other statement in this Agreement or in any Seller Ancillary
Agreement or in any other document or information delivered or given to or
received by or on behalf of Buyer in connection with the transactions
contemplated by this
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<PAGE>
Agreement shall be deemed to be a representation or warranty relating to
Environmental Law or environmental matters.
(a) Except as set forth in Schedule 5.19(A), PDGNB and each
----------------
Subsidiary is in compliance with all applicable Environmental Laws except for
such noncompliance as is not likely to have a Material Adverse Effect.
(b) Except as set forth on Schedule 5.19(B), each Subsidiary owns,
----------------
holds or possesses all material Governmental Permits required under
Environmental Laws necessary for the occupation and use of the Real Property and
the operation of its business substantially as currently conducted. All
Governmental Permits required under Environmental Laws that are currently owned,
held, or possessed by each Subsidiary are listed in Schedule 5.19(B). Except as
----------------
set forth on Schedule 5.19(B), the Subsidiaries are in compliance, and have for
----------------
the past three (3) years complied, with all Governmental Permits except for such
noncompliance as is not likely to have a Material Adverse Effect. Seller shall
make commercially reasonable efforts to transfer or cause to be transferred to
Buyer all such Governmental Permits at the Closing, including (i) giving notice
to federal, state or local regulatory agencies with respect to the change in
ownership or control or responsible officials at the Real Property, (ii)
completing and submitting notices of termination, and (iii) to the extent not
transferred by the Closing Date, shall cooperate fully with Buyer in obtaining
the transfer of such Governmental Permits as promptly thereafter as possible.
(c) Except as set forth in Schedule 5.19(C), neither PDGNB nor any
----------------
Subsidiary is subject to any pending or, to the Knowledge of Seller Regarding
Environmental Matters, threatened investigation by, order from, claim by,
statutory request for information from, or continuing agreement with any Person
respecting: (i) any violation of Environmental Law or Governmental Permits, (ii)
any Remedial Action, or (iii) any claim of Losses and Expenses, in each case
arising from the Release or threatened Release of a Contaminant or the presence
of any Contaminant on, in, at or beneath the Real Property or the migration of
any Contaminant onto or from the Real Property.
(d) Except as set forth in Schedule 5.19(D), neither PDGNB nor any
----------------
Subsidiary is subject to any pending or, to the Knowledge of Seller Regarding
Environmental Matters, threatened judicial or administrative investigation,
proceeding, order, notice of violation, judgment, decree or settlement with any
continuing obligation alleging or relating to a violation of or liability under
any Environmental Law or Governmental Permits.
(e) Except as set forth in Schedule 5.19(E):
----------------
(i) Neither PDGNB nor any Subsidiary has reported a Release
pursuant to Section 103(a) of CERCLA or Section 304 of EPCRA, or
any analogous state or local law;
(ii) Neither PDGNB nor any Subsidiary has filed a notice
pursuant to Section 103(c) of CERCLA;
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<PAGE>
(iii) Neither PDGNB nor any Subsidiary has filed a notice
pursuant to Section 3010 of RCRA, indicating the generation of
any hazardous waste, as that term is defined under 40 CFR Part
261 or any state analog thereto; or
(iv) To the Knowledge of Seller Regarding Environmental Matters,
there has not been any disposal by any Subsidiary or Release of
any Contaminants on, at, in, or beneath any Real Property.
(f) Except as set forth in Schedule 5.19(F), neither PDGNB nor any
----------------
Subsidiary has received written notice under CERCLA or any other Environmental
Law to the effect that it is or may be liable to any Person as a result of the
generation, storage, transportation, Release, arrangement for disposal or
disposal of any Contaminants on, at or, in any Real Property.
(g) Except as set forth in Schedule 5.19(G), to the Knowledge of
----------------
Seller Regarding Environmental Matters, there are no underground storage tanks
(whether active or abandoned) located at, in, or beneath the Real Property.
(h) Except as disclosed in the Schedules to Section 5.19, to the
Knowledge of Seller Regarding Environmental Matters, as of the Closing Date
there is no condition existing on the premises constituting the Owned Real
Property or Leased Real Property that will give rise to any liability of PDGNB
or any Subsidiary under any Environmental Law.
(i) Seller has made available to Buyer true and correct copies of
all material environmental audits and consultant's reports relating to the past
and current operations, properties and facilities of PDGNB and each Subsidiary,
or any of their respective predecessors, which are in its possession or under
its reasonable control.
(j) To the Knowledge of Seller Regarding Environmental Matters, the
sites identified on Schedule 5.19(J) constitute, and as such Schedule is updated
----------------
by Seller from time to time in its sole discretion prior to the Closing Date,
will constitute all PRP Sites as of the Closing Date. Notwithstanding any other
provision of this Agreement, no representations and warranties are made or shall
be deemed to apply to the Savanna Sites other than: (i) the representation and
warranty contained in the first sentence of this Section 5.19(j), and (ii) the
---------------
representations and warranties contained in Sections 5.10(a), (c), and (d)(i) as
---------------- --- ------
applied to the Owned Real Property included in the Savanna Sites.
Section 5.20. Insurance. Seller has, and at all times has had, valid
---------
insurance coverage in respect of the Business against all risks normally insured
against by persons in the same industry, underwritten by one or more well-
established and reputable insurers or adequately capitalized Affiliates.
Schedule 5.20 contains a list of all insurance policies (specifying (i) the
-------------
insurer, (ii) the amount of the coverage, (iii) the type of insurance, (iv) the
policy number and (v) any currently pending claims thereunder) maintained by or
on behalf of any Subsidiary on its properties, assets, business or personnel.
No Subsidiary has failed to give any notice or present any claim under any
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<PAGE>
insurance policy in due and timely fashion. All premiums due under the policies
listed on Schedule 5.20 have been paid or accrued for on the Financial
-------------
Statements and all such policies are in full force and effect and no notice of
disallowance of any claim under any insurance policy, whether or not currently
in effect, has been received by PDGNB or any Subsidiary. Other than (i) claims
properly made against PDGNB or any Subsidiary in the ordinary course of business
pursuant to insurance programs written on a retrospective rating basis, (ii)
claims made as a result of premium audits relating to expired insurance
policies, (iii) deductible claims relating to losses that are incurred but not
reported, or losses that are known but not finally resolved, neither PDGNB nor
any Subsidiary has any liability for or exposure to any premium expenses for
expired policies and there are no current claims by PDGNB or any Subsidiary
under any such policy as to which coverage has been questioned, denied or
disputed by the underwriters of such policies.
Section 5.21. Product Warranties. Each Subsidiary's unexpired, express
------------------
product warranties with respect to products that it manufactures or sells or
that it has heretofore manufactured or sold are described in Schedule 5.21.
-------------
Except as set forth in Schedule 5.21, no Subsidiary has received written notice
-------------
of any claim, and to the Knowledge of Seller there are no threatened claims
against any Subsidiary, based on any product warranty (except claims outstanding
as of June 30, 1999, not exceeding two hundred thousand United States dollars
(US$200,000) in the aggregate).
Section 5.22. Bank Accounts. Schedule 5.22 sets forth a list of all
------------- -------------
accounts, borrowing resolutions and deposit boxes maintained by PDGNB and each
Subsidiary at any bank or other financial institution and the names of the
persons authorized to effect transactions in such accounts and pursuant to such
resolutions and with access to such boxes.
Section 5.23. Accounts and Records. All the accounts, books, ledgers
--------------------
and financial and other material records of the Business have been maintained
accurately and in accordance with generally accepted accounting practices.
Section 5.24. No Misrepresentation. To the Knowledge of Seller, the
--------------------
representations and warranties of Seller contained in this Agreement, the
Disclosure Schedules attached hereto, and the certificates and other instruments
delivered by Seller pursuant hereto, do not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
contained herein or therein not misleading.
Section 5.25. Sufficiency of Assets. PDGNB and the Subsidiaries own or
---------------------
lease or have the right to use all Real Property, buildings, machinery,
equipment, intellectual property and other assets necessary for the conduct of
the Business.
Section 5.26. Powers of Attorney. As of Closing, there will not be any
------------------
outstanding powers of attorney executed on behalf of PDGNB or any Subsidiary
other than with respect to the filing of taxes, customs and similar matters and
intellectual property registrations.
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ARTICLE 6.
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Seller as follows.
Section 6.1. Organization. Buyer is a corporation duly organized,
------------
validly existing and in good standing under the laws of the State of Delaware.
Buyer is duly qualified to do business and is in good standing as a foreign
corporation in each of the jurisdictions in which Buyer's operations require
that it qualify to transact business as a foreign corporation, except for those
jurisdictions where the failure to so qualify is not likely to have a material
adverse effect on Buyer's business or financial condition or the ability of
Buyer to lawfully consummate the transactions contemplated by this Agreement in
all material respects.
Section 6.2. Power and Authority. Buyer has the full corporate power
-------------------
and authority to execute and deliver this Agreement and the Buyer Ancillary
Agreements, to perform its obligations hereunder and thereunder, and to own and
lease its property and conduct its operations as currently conducted. Buyer's
execution, delivery and performance of this Agreement has been duly authorized
and approved by all necessary corporate action.
Section 6.3. Agreement Binding. This Agreement has been and the Buyer
-----------------
Ancillary Agreements will be duly executed and delivered by Buyer, and assuming
due authorization, execution and delivery by Seller, is and will be the legal,
valid and binding obligations of Buyer enforceable in accordance with their
respective terms, subject to general principles of equity and except as
enforceability may be limited by applicable bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium or other similar laws of general
application relating to creditors' rights generally.
Section 6.4. Absence of Conflicts. Except as described in Schedule 6.4,
--------------------
the execution, delivery and performance of this Agreement and the Buyer
Ancillary Agreements and the consummation of the transactions contemplated
hereby and thereby, will not:
(a) conflict with, result in a breach of the terms, conditions or
provisions of, or constitute a default, an event of default or an event creating
rights of acceleration, termination or cancellation, result in termination of or
result in the creation or imposition of any Encumbrance under: (i) any term or
provision of the certificate of incorporation or bylaws of Buyer, (ii) any note,
instrument, contract, agreement, mortgage, indenture, lease, license, franchise,
permit or other commitment to which Buyer is a party or by which it or any of
its assets are bound, (iii) any Court Order, or (iv) any Requirements of Law;
except in each case, for any of the foregoing which, individually or in the
aggregate, is or are not likely to have a material adverse effect on Buyer or
its business taken as a whole or hinder or impair the consummation of the
transactions contemplated hereby; or
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(b) require the approval, consent, authorization or act of, or
the making by Buyer of any declaration, notification, filing or registration
with, any Person, except in each case, for: (i) any of the foregoing which,
individually or in the aggregate, if not taken, is or are not likely to have a
material adverse effect on the financial condition of Buyer or materially hinder
or impair the consummation of the transactions contemplated hereby; and (ii) the
filing required under the HSR Act.
Section 6.5. Investment Representation. Buyer is acquiring the Shares
-------------------------
for investment and not with a view to the distribution thereof or dividing all
or any part of its interest therein with any other Person.
Section 6.6. No Advisor. Neither Buyer nor any Person acting on its
----------
behalf has retained any advisor, broker, investment banker or financial advisor
in connection with this Agreement or any transaction contemplated hereby for
which Seller may be liable.
Section 6.7. Capitalization. The authorized capital stock of Buyer
--------------
consists of (i) 60,000,000 shares of common stock, par value $0.01 per share, of
which 21,496,747 shares were issued and outstanding on May 5, 2000 and (ii)
5,000,000 shares of preferred stock, par value $0.01 per share, none of which
were issued or outstanding as of May 5, 2000. The issued and outstanding shares
of Buyer's capital stock have been duly authorized and validly issued and are
fully paid and non-assessable, with no personal liability attaching to the
ownership thereof. The Buyer Shares have been duly authorized and, at the
Closing will be validly issued, fully paid, nonassessable and not subject to
preemptive or any other similar rights of others, and be free and clear of all
Encumbrances except for those referred to in Section 3.3(e) and have no personal
liability attaching to the ownership thereof.
Section 6.8. SEC Reports. Except for the matters referred to in Buyer's
-----------
Form 10-Q for the quarter ended January 2, 2000, the annual report on Form 10-K
of Buyer for the fiscal year ended March 31, 1999, as filed under the Securities
Exchange Act of 1934, as amended ("Exchange Act"), and all other reports and
proxy statements filed or required to be filed by Buyer subsequent to such
report (collectively, the "Buyer SEC Documents@), have been duly and timely
-------------------
filed by Buyer and as of their respective dates (or if amended prior to the date
of this Agreement, then on the date of such last amendment) complied in all
material respects with all requirements under the Exchange Act and the rules and
regulations promulgated thereunder and contained no untrue statement of a
material fact or omitted to state a material fact necessary in order to make the
statements made, in light of the circumstances in which they were made, not
misleading and the financial statements of Buyer included in the Buyer SEC
Documents complied in all material respects with applicable accounting
requirements and the published rules and regulations of the SEC with respect
thereto, have been prepared in accordance with GAAP (except, in the case of
interim financial statements, as permitted by Forms 10-Q or 8-K of the SEC)
consistently applied during the periods involved (except as may be indicated in
the notes thereto) and fairly presented, in all material respects, the financial
position of Buyer as of the dates thereof and the results of operations and cash
flows for the periods then ended (subject, in the case of interim financial
statements, to normal year-end adjustments, other adjustments discussed therein
(if any) and lack of footnote disclosures). Buyer
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believes it is currently eligible under the Securities Act to use a Registration
Statement on Form S-3 to register resales of its common stock.
Section 6.9. Undisclosed Liabilities. Except (i) to the extent
-----------------------
disclosed in the Buyer SEC Documents and (ii) for liabilities and obligations
incurred in the ordinary course of business consistent with past practice, since
March 31, 1999, neither Buyer nor any of its subsidiaries has incurred any
liabilities or obligations of any nature, whether or not accrued, contingent or
otherwise, that have, or would be reasonably likely to have, individually or in
the aggregate, a material adverse effect on Buyer and its subsidiaries, taken as
a whole.
Section 6.10. Litigation. Except as disclosed in the Buyer SEC
----------
Documents or in Schedule 6.4, no Action is pending or, to the knowledge of
Buyer, threatened against Buyer or any of its subsidiaries or any of their
respective officers, directors or employees (in their capacity as such) before
any court, arbitration board or tribunal or administrative or other governmental
agency, nor is Buyer aware of any such threatened Action, which either
individually or in the aggregate, is reasonably likely to have a material
adverse effect on Buyer and its subsidiaries, taken as a whole, or would prevent
Buyer from consummating the transactions contemplated by this Agreement.
Section 6.11. No Misrepresentation. To the knowledge of Buyer, the
--------------------
representations and warranties of Buyer contained in this Agreement, Schedule
6.4 and the certificates and other instruments delivered by Buyer pursuant
hereto do not include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements made not misleading.
ARTICLE 7.
ACTIONS PRIOR TO THE CLOSING DATE
Buyer and Seller covenant and agree to take the following actions between
the date hereof and the Closing Date:
Section 7.1. Preserve Accuracy of Representations and Warranties. Buyer
---------------------------------------------------
and Seller shall, and Seller shall cause PDGNB and each Subsidiary to, refrain
from taking any action that would render any representation or warranty
contained in this Agreement inaccurate as of the Closing Date. Buyer and Seller
shall promptly notify the other of any Action, investigation, or other
proceeding, that shall be instituted or threatened against such party or, in the
case of Seller, against PDGNB or any Subsidiary, to restrain, prohibit or
otherwise challenge the legality of any transaction contemplated by this
Agreement.
Section 7.2. Approvals. During the period prior to the Closing Date,
---------
Buyer and Seller shall, and Seller shall cause PDGNB and each Subsidiary to, act
diligently and reasonably, and shall cooperate with each other, to secure any
consents and approvals of any Governmental Body or other Person required to be
obtained in order to effect the consummation of the transactions contemplated
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by this Agreement and preserve for the benefit of PDGNB and the Subsidiaries
their rights under permits and agreements.
Section 7.3. Operations Prior to the Closing Date.
------------------------------------
(a During the period prior to the Closing Date, Seller shall
cause each Subsidiary to operate and carry on its operations only in the
ordinary course and substantially as operated prior to the date hereof.
(b Notwithstanding Section 7.3(a), except as set forth in
--------------
Schedule 7.3(B), as expressly contemplated by this Agreement, or with the
---------------
express prior consent of Buyer, Seller shall not take, and shall cause PDGNB and
the Subsidiaries not to take, any of the actions set forth in Section 5.7(b);
--------------
provided, however, notwithstanding anything to the contrary herein, Seller shall
not make any capital expenditure in excess of Two Hundred and Fifty Thousand
United States Dollars ($250,000) (other than those identified as being committed
in the "Fiscal Year 2000 Open Sanction Summary" attached to Schedule 5.7(b))
---------------
without the prior written approval of Buyer.
Section 7.4. Antitrust Law Compliance. Buyer and Seller shall each file
------------------------
or cause to be filed with the Federal Trade Commission and the United States
Department of Justice any notifications required to be filed under the HSR Act
with respect to the transactions contemplated hereby and by the Coordinating
Agreement, and Buyer and Seller shall bear the costs and expenses of their
respective filings and shall pay their respective filing fees in connection
therewith. Buyer and Seller shall use their respective reasonable best efforts
to make such filings promptly (and in any event within three (3) business days)
following the date hereof, to respond to any requests for additional information
made by either of such agencies and to cause the waiting periods under the HSR
Act to terminate or expire at the earliest possible date. Each party warrants
that all such filings by it will be, as of the date filed, true and accurate and
in accordance with the requirements of the HSR Act and any rules and regulations
promulgated thereunder. Buyer and Seller agree to make available to each other
such information as each of them may reasonably request relative to the
business, assets and property of either of them or of PDGNB or any Subsidiary as
may be required of each of them to file any additional information requested by
the above-referenced federal agencies under the HSR Act and any rules and
regulations promulgated thereunder.
Section 7.5. Intercompany Agreements. All of the Intercompany Agreements
-----------------------
and intercompany accounts payable and receivable, except for those set forth
on Schedule 7.5, shall be terminated or canceled at the Closing.
------------
Section 7.6. Tax Sharing Agreement. All Tax Sharing, allocation or
---------------------
similar agreements with respect to or including PDGNB and the Subsidiaries shall
be terminated as of the Closing. Upon termination, neither PDGNB nor any of the
Subsidiaries shall be bound thereby or have any further liability thereunder and
will be released from any claims thereunder.
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<PAGE>
Section 7.7. Notification of Changes. Each of Seller and Buyer shall
-----------------------
promptly notify the other of any event that causes any representation or
warranty given by such party in Articles 4, 5 or 6 to become untrue.
-------------------
Section 7.8. General. Each of the parties will use its reasonable best
-------
efforts to take all action and to do all things necessary, proper, or advisable
in order to consummate and make effective the transactions contemplated by this
Agreement (including satisfaction, but not waiver, of the closing conditions set
forth below).
Section 7.9. Preservation of Business. Each of the parties shall, and
------------------------
Seller shall cause PDGNB and the Subsidiaries to, use reasonable best efforts to
keep their businesses and properties substantially intact, including their
present operations, physical facilities, working conditions, and relationships
with lessors, licensors, suppliers, customers and employees.
ARTICLE 8.
CONDITIONS TO CLOSING
Section 8.1. Conditions to the Obligations of the Buyer. The obligations
------------------------------------------
of Buyer under this Agreement shall, at the option of Buyer, be subject to the
satisfaction, on or prior to the Closing Date, of each of the following
conditions:
(a No Misrepresentation or Breach of Covenants and Warranties.
----------------------------------------------------------
Seller shall have complied in all material respects with its covenants and
agreements herein and in the Coordinating Agreement; each of the representations
and warranties of Seller (including those with respect to PDGNB and the
Subsidiaries) contained in this Agreement and each of the Seller Ancillary
Agreements shall be true and correct in all material respects on the Closing
Date as though made on the Closing Date (except with respect to those
representations and warranties that speak as to a particular date or time, which
only need be true and correct as of such date or time), except for changes
therein specifically permitted by this Agreement or resulting from any
transaction expressly consented to in writing by Buyer; and there shall have
been delivered to Buyer a closing certificate in a form reasonably satisfactory
to Buyer to such effect, dated the Closing Date, signed by the President or a
Vice President of Seller.
(b Closing Documents. Buyer shall have received from Seller the
-----------------
agreements and closing documents contemplated by Section 3.2.
-----------
(c Necessary Approvals. Seller and Buyer shall have received all
-------------------
approvals and actions of or by all Governmental Bodies and any other Person
which are necessary to consummate the transactions contemplated hereby and by
the ROW Agreements and preserve for the benefit of PDGNB and the Subsidiaries
their rights under the PDGNB Agreements which are material to the operation of
the Business.
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<PAGE>
(d No Suit. No Action by any Governmental Body shall be pending
-------
or threatened questioning the legality of this Agreement or the consummation of
the transactions contemplated hereby in whole or in part.
(e No Restraint. The waiting period under the HSR Act shall have
------------
expired or been terminated and no Court Order shall have been issued and be in
effect which restrains or prohibits any material transaction contemplated
hereby.
(f ROW Agreements. The transactions contemplated by the ROW
--------------
Agreements shall have closed simultaneously with the Closing.
(g No Material Adverse Change. On the Closing Date, there shall
--------------------------
not be a Material Adverse Effect.
(h Coordinating Agreement. All conditions to Buyers obligations
----------------------
set forth in Sections 5.5, 5.6 and 5.7(a) of the Coordinating Agreement shall
have been satisfied.
(i Standstill and Registration Rights. The parties shall have
----------------------------------
entered into a Standstill Agreement reasonably satisfactory to them
substantially on the terms as set forth in Exhibit A hereto (the "Standstill
---------
Agreement") and a Registration Rights Agreement reasonably satisfactory to them
substantially on the terms as set forth in Exhibit B hereto (the "Registration
---------
Rights Agreement").
Notwithstanding the failure of any one or more of the foregoing
conditions, Buyer may, at its option, proceed with the Closing without
satisfaction, in whole or in part, of any one or more of such conditions and
without written waiver; provided however, that in so proceeding with the
Closing, and notwithstanding any other provision of this Agreement, Buyer shall
be deemed to have waived any such failure and any rights or remedies it may have
against Seller by reason of such failure.
Section 8.2. Conditions to the Obligations of Seller. The obligations of
---------------------------------------
Seller under this Agreement shall, at the option of Seller, be subject to the
satisfaction, on or prior to the Closing Date, of each of the following
conditions:
(a No Misrepresentation or Breach of Covenants and Warranties.
----------------------------------------------------------
Buyer shall have complied in all material respects with its covenants and
agreements herein; each of the representations and warranties of Buyer contained
in this Agreement shall be true and correct in all material respects on the
Closing Date as though made on the Closing Date (except with respect to those
representations and warranties that speak as to a particular date or time, which
only need be true and correct as of such date or time), except for changes
therein specifically permitted by this Agreement or resulting from any
transaction expressly consented to in writing by Seller; and there shall have
been delivered to Seller a closing certificate in a form reasonably satisfactory
to Seller to such effect, dated the Closing Date and signed by the President or
a Vice President of Buyer.
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<PAGE>
(b Closing Documents. Seller shall have received from Buyer the
-----------------
agreements and closing documents contemplated by Section 3.3.
-----------
(c Payment of Purchase Price. Buyer shall have tendered payment of
-------------------------
the cash portion of the Purchase Price.
(d Listing of Buyer Shares. The Buyer Shares shall have been
-----------------------
approved for listing on the New York Stock Exchange, subject to official notice
of issuance.
(e Necessary Approvals. Seller and Buyer shall have received all
-------------------
approvals and actions of or by all Governmental Bodies and any other Person
which are necessary to consummate the transactions contemplated hereby and by
the ROW Agreements and preserve for the benefit of Buyer its rights under
agreements which are material to the operation of its businesses.
(f No Suit. No Action by any Governmental Body shall be pending or
-------
threatened questioning the legality of this Agreement or the consummation of the
transactions contemplated hereby in whole or in part.
(g No Restraint. The waiting period under the HSR Act shall have
------------
expired or been terminated, and no Court Order shall have been issued and be in
effect which restrains or prohibits any material transaction contemplated
hereby.
(h ROW Agreements. The transactions contemplated by the ROW
--------------
Agreements shall have closed simultaneously with the Closing.
(i Standstill and Registration Rights. The parties shall have
----------------------------------
entered into the Standstill Agreement and the Registration Rights Agreement.
(j No Material Adverse Change. On the Closing Date, there shall
--------------------------
have been no event, occurrence or condition (other than as a result of general
economic conditions or events affecting the automotive and industrial battery
business as a whole) which has, or could reasonably be expected to have, a
material adverse effect on the financial condition, assets, results or
operations, businesses, or operations of Buyer taken as a whole.
(k Coordinating Agreement. All conditions to Seller's obligations
----------------------
set forth in Sections 5.5 and 5.7(b) of the Coordinating Agreement shall have
been satisfied.
Notwithstanding the failure of any one or more of the foregoing
conditions, Seller may, at its option, proceed with the Closing without
satisfaction, in whole or in part, of any one or more of such conditions and
without written waiver; provided however, that in so proceeding with the
Closing, and notwithstanding any other provision of this Agreement, Seller shall
be deemed to have waived any such failure and any rights or remedies it may have
against Buyer by reason of such failure.
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ARTICLE 9.
TERMINATION
Section 9.1. Termination. Anything contained in this Agreement to the
-----------
contrary notwithstanding, this Agreement may be terminated at any time prior to
the Closing Date:
(a by the mutual written consent of Buyer and Seller;
(b by Buyer or Seller if the Closing shall not have occurred on
or before December 31, 2000 unless: (i) all conditions to Closing have
previously been satisfied or waived, and (ii) the Closing has not then occurred
solely because the date for Closing specified in Section 3.1 has not yet
-----------
occurred and unless such failure to close is due primarily to the breach by the
party seeking termination of its agreements, representations or warranties
contained herein;
(c by Buyer in the event of any breaches in any material respect
by Seller of Seller's agreements, covenants, representations or warranties
contained herein, and which Seller has failed to remedy or cure within twenty
one (21) days after receipt of notice from Buyer requesting that such breaches
be remedied or cured;
(d by Seller in the event of any breaches in any material
respect by Buyer of Buyer's agreements, covenants, representations or warranties
contained herein, which Buyer has failed to remedy or cure within twenty one
(21) days after receipt of notice from Seller requesting that such breaches be
remedied or cured; or
(e by Buyer or Seller if any court shall have issued a Court
Order or if any Governmental Body shall have issued a decree or ruling or taken
any other action permanently restraining, enjoining or otherwise prohibiting the
consummation of the transactions contemplated hereby.
Section 9.2. Notice of Termination. Any party desiring to terminate this
---------------------
Agreement pursuant to Section 9.1 shall give written notice of such termination
-----------
to the other party to this Agreement.
Section 9.3. Effect of Termination. In the event that this Agreement shall
---------------------
be terminated pursuant to this Article 9, all further obligations of the
---------
parties under this Agreement (other than Sections 12.2, 12.8, and 12.11 of this
------------- ---- -----
Agreement and Sections 5.2, 5.3 and 5.4 of the Coordinating Agreement) shall be
------------ --- ---
terminated without further liability of any party to the other, provided that
nothing herein shall relieve either party from liability for its willful breach
of this Agreement.
ARTICLE 10.
EXCLUSIVITY OF REMEDY
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<PAGE>
Section 10.1. Indemnification by Seller. Seller's sole and exclusive
-------------------------
indemnification obligations under this Agreement are set forth in the
Coordinating Agreement.
Section 10.2. Indemnification by Buyer. Buyer's sole and exclusive
------------------------
indemnification obligations under this Agreement are set forth in the
Coordinating Agreement.
Section 10.3. Exclusivity of Remedy. With respect to any breach by either
---------------------
party of its representations, warranties, covenants, or agreements in this
Agreement, the respective Buyer or Seller Ancillary Agreements, or the ROW
Agreements and the transactions contemplated hereby and thereby, the sole and
exclusive remedy of the other party (in contract, tort, for contribution,
under Requirements of Law, or otherwise) shall be the indemnification provided
in the Coordinating Agreement. In view of this exclusivity of remedy
provision, Buyer and Seller covenant and agree for themselves and their
respective Affiliates that they will not bring, maintain, join or prosecute
any Action or other proceeding against the other or its Affiliates for breach
of this Agreement or indemnity therefore except as provided in the
Coordinating Agreement.
ARTICLE 11.
ADDITIONAL AGREEMENTS OF THE PARTIES
Section 11.1. Taxes.
-----
(a Neither Buyer nor Seller shall request a Tax audit of PDGNB
or the Subsidiaries and Buyer shall not, without the prior written consent of
Seller, extend any statute of limitations with respect to PDGNB or Subsidiary
Taxes arising prior to the Closing. Notwithstanding the provisions of Section
-------
4.4 of the Coordinating Agreement, Seller shall have the sole right to control
---
any Tax audit or administrative or court proceeding involving PDGNB or the
Subsidiaries relating to periods ending at the time of or before the Closing for
which indemnification may be claimed from Seller under the Coordinating
Agreement, and to employ counsel of its choice at its expense, and neither Buyer
nor any of its Affiliates may settle any Tax claim for any taxable year or
period ending at or before the time of the Closing (or for the portion of any
taxable year or period ending on the Closing) without the prior written consent
of Seller, which consent may not be unreasonably withheld; provided that Seller
shall not enter into any settlement of any Tax claim, if such settlement shall
have adverse Tax consequences to Buyer, its subsidiaries or its Affiliates
(other than an adverse Tax consequence to which Seller has a duty to indemnify
Buyer pursuant to Section 4.1 of the Coordinating Agreement), without first
obtaining written approval of such settlement agreement from PDGNB and Buyer.
(b For all taxable periods ending on or before the Closing
Date, Seller shall cause PDGNB and the Subsidiaries to join in Seller's
consolidated federal income tax return and in jurisdictions requiring separate
reporting from Seller, to file separate company state and local income tax
returns. All such Tax Returns shall be prepared and filed in a manner that is
consistent with prior practice, except as required by a change in applicable
law. Buyer shall have the right to review and comment on any such Tax Returns
prepared by Seller. In the event of any disagreement between
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the Seller and Buyer with respect to any item on such Tax Returns, the Seller
and Buyer shall work in good faith to promptly resolve such disagreement, and to
the extent that the parties cannot resolve such disagreement, the disagreement
shall be submitted to a mutually agreed third-party independent accountant for
resolution, which resolution shall be binding on both Seller and Buyer. The
costs of such dispute resolution shall be borne equally by both Seller and
Buyer. Except to the extent reflected as a liability on the Final Closing Date
Balance Sheet, Seller shall pay all Taxes that may be due after the Closing Date
and are allocable to the period prior to and including the Closing Date. In
order appropriately to apportion any of these Taxes relating to a period that
includes (but that would not, but for this section, close on) the Closing Date,
the parties hereto will, to the extent permitted by applicable law, elect with
the relevant taxing authorities to treat for all purposes the Closing Date as
the last day of a taxable period of PDGNB and the Subsidiaries, and such period
shall be treated as a "Short Period" and a "Pre-Closing Period" for purposes of
this Agreement; provided, that, the Buyer shall not consent to any
-------- ----
such election to the extent such election would result in any material adverse
Tax consequences to Buyer, its Affiliates, PDGNB or any of the Subsidiaries. In
any case where applicable law does not permit the Closing Date to be treated as
the last day of a Short Period, then for purposes of this Agreement, the portion
of such Taxes that is attributable to the operations of PDGNB or any Subsidiary
for the portion of such Tax Period beginning before and ending on and including
the Closing Date (the "Interim Period"), shall be (i) in the case of Taxes
--------------
that are not based on income or gross receipts, the total amount of such
Taxes for the period in question multiplied by a fraction, the numerator of
which is the number of days in the Interim Period, and the denominator of which
is the total number of days in the entire period in question, and (ii) in the
case of Taxes that are based on income or gross receipts, the Taxes that would
be due with respect to the Interim Period, if such Interim Period were a Short
Period. Buyer shall cause PDGNB and the Subsidiaries to furnish information to
the Seller as reasonably requested by Seller to allow Seller to satisfy its
obligations under this section in accordance with past custom and practice.
Buyer shall cause PDGNB and the Subsidiaries to file income tax returns, or
shall include PDGNB and the Subsidiaries in its combined or consolidated income
tax returns, for all periods other than periods ending on or before the Closing
Date. PDGNB and the Subsidiaries and Buyer shall consult and cooperate as to any
elections to be made on returns of PDGNB and the Subsidiaries for periods ending
on or before the Closing Date.
(c Except to the extent reflected as a liability on the Final
Closing Date Balance Sheet, Seller shall be liable for and shall pay all Taxes
(whether assessed or unassessed) applicable to the sale of Shares or the
operations of PDGNB or any Subsidiary through the Closing Date and all Taxes
attributable to the Interim Period described in Section 11.1(b). Buyer shall be
---------------
liable for and shall pay: (i) subject to Section 4.1(a)(viii) of the
Coordinating Agreement, all Taxes reflected as a liability on the Final Closing
Date Balance Sheet; and (ii) all Taxes (whether assessed or unassessed)
applicable to the operation of PDGNB or the Subsidiaries attributed to all
periods beginning after the Closing Date.
(d Notwithstanding Section 11.1(c), any Tax attributable to the
---------------
sale, transfer or delivery of the purchased Shares or the underlying assets of
PDGNB or any Subsidiary shall be borne and paid by Seller. Buyer and Seller
agree to timely sign and deliver such certificates or forms
-37-
<PAGE>
as may be necessary or appropriate to establish an exemption from (or otherwise
reduce), or file Tax Returns with respect to, such Taxes.
(e After the Closing, Seller and Buyer shall (and shall cause
their respective Affiliates to):
(i make available to the other and to any taxing
authority as reasonably requested all information, records,
and documents relating to PDGNB or the Subsidiaries and
preserve the same until the expiration of any applicable
statute of limitations or extensions thereof;
(ii provide timely notices to the other in writing of any
pending or threatened Tax audits or assessments relating to
PDGNB or the Subsidiaries for taxable periods for which the
other may have a liability under this Section 11.1;
------------
(iii furnish the other with copies of all correspondence
received from any taxing authority in connection with any
Tax audit or information request with respect to any taxable
period for which the other may have liability under this
Section; and
(iv Buyer and Seller further agree, upon request, to use
their reasonable best efforts to obtain any certificate or
other document from any governmental authority or any other
Person as may be necessary to mitigate, reduce or eliminate
any Tax that could be imposed (including, without
limitation, with respect to the transactions contemplated
thereby).
(f After the Closing, Buyer shall (and shall cause its
Affiliates to) pay to Seller any refunds of or credits for Taxes (net of any
Taxes owed resulting from such refund or credit) relating to PDGNB or the
Subsidiaries for periods ending on or before the Closing Date, excluding any Tax
refund realized as a result of the carryback of a post-Closing loss or credit,
provided that no payment shall be due to Seller resulting from refunds reflected
on the Final Closing Date Balance Sheet or otherwise taken into account in
calculating the adjustment to the Purchase Price in the Coordinating Agreement.
(g Seller, at the request of Buyer, will join with Buyer to
make an election under Code Section 338(h)(10) (and any corresponding provisions
of state, local or foreign law) (collectively, a "Section 338(h)(10) Election")
with respect to the purchase and sale of the PDGNB and the Subsidiaries (each
such entity for which a Section 338(h)(10) Election is made, an "Election
Corporation," and collectively, the "Election Corporations"). Buyer will be
responsible for preparing and timely filing any forms used to make a Section
338(h)(10) Election. Seller and its Affiliates shall sign on a timely basis all
forms used to make a Section 338(h)(10) Election requiring its signature, which
forms shall be provided to Seller at least 30 days prior to the required filing
date. Promptly after the Closing Date, Seller shall provide to Buyer any
information (including Tax elections made by or on behalf of PDGNB and the
Subsidiaries) reasonably requested by the Buyer
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<PAGE>
in connection with its filing of a Section 338(h)(10) Election. Within 60 days
after the Closing Date, the purchase price, the Election Corporation's
liabilities and other relevant items shall be allocated among the Election
Corporation's assets as determined by Buyer and as reasonably acceptable to
Seller, which allocation shall be binding upon Seller. The Buyer and Seller
shall file any Tax Returns and any other governmental filings on a basis
consistent with such allocation of fair market value.
(h) If Buyer does not make a Section 338(h)(10) Election
pursuant to Section 11.2(g) above, Seller intends to and Buyer agrees that, upon
---------------
the sale of the Shares, Seller will make an election under Treasury Regulation
Section 1.1502-20(g)(1) to retain all net operating loss carryovers and related
alternative minimum tax carryovers attributable to PDGNB and Subsidiaries.
Seller will prepare the election and provide Buyer with a copy of the election
statement. Buyer agrees to attach a copy of the election statement to its tax
return as required by Treasury Regulation Section 1.1502-20(g)(4)(iii), to
support Seller in its election to retain the losses of PDGNB and Subsidiaries.
(i) The Tax Returns prepared by any party pursuant to Section
-------
11.1 shall be prepared in a manner consistent with past returns and in
----
compliance with applicable law. Notwithstanding any obligations or rights set
forth in this Section 11.1, Buyer shall retain any rights to indemnification as
------------
set forth in Section 4.1 of the Coordinating Agreement.
-----------
Section 11.2. Proceeds of Environmental Remediation Rights. Buyer shall,
--------------------------------------------
and shall cause PDGNB and the Subsidiaries to, promptly remit to Seller any and
all proceeds received by Buyer, PDGNB, the Subsidiaries or any of their
Affiliates after the Closing Date from insurance companies or the former owner
of the assets of the Subsidiaries to the extent they represent reimbursement for
environmental remediation occurring on or prior to the Closing Date. Nothing in
this Agreement shall be deemed to transfer any rights whatsoever to Buyer with
respect to any policies (or claims or proceeds from claims pursuant thereto),
including but not limited to, any primary, excess or umbrella comprehensive or
general liability policies, issued prior to Closing, to Pacific Chloride, Inc.
or any predecessors or successors of that corporation.
Section 11.3. Employee Benefit Plan Reports. Seller agrees to correct any
-----------------------------
failure to include an accountant's report (if required) with any of the
Forms 5500 for the Seller's cafeteria plan for the most recent three plan years,
and to bear all of the costs of such corrections, including penalties under
ERISA.
Section 11.4. Insurance Matters.
-----------------
(a) Seller agrees that with respect to any occurrence-based
policies as to which PDGNB or any of the Subsidiaries are named insured or named
as additional insured parties (the "Insurance Policies"), it shall fully
cooperate with Buyer (at Buyer=s expense) in taking all steps necessary to file
and process any insurance claims for any claims made after the Closing Date that
relate to any acts, events or occurrences prior to the Closing Date relating to
the Business (the "Insured Claims") that are insured under such policies. To the
extent that any proceeds relating to
-39-
<PAGE>
the Insured Claims are received by Seller or any of Seller's Affiliates, Seller
agrees to pay over such proceeds promptly to Buyer.
(b) Buyer agrees that it shall pay any retrospective premium
charge or liability owed by Seller under the terms of such Insurance Policies
(including amounts owed under premium audits), subject to the following
conditions (i) Buyer shall only be obligated to pay such portion of a
retrospective premium charge or liability to the extent it exclusively relates
to the Business, (ii) Buyer shall have the right, upon reasonable request made
to Seller, to audit any retrospective premium policies and charges thereunder,
and to object to any proposed charge on the basis of such audit (in which case
any dispute between Seller and Buyer (not including any dispute between Buyer
and any insurer) shall be resolved by binding arbitration) and (iii) Buyer shall
not be required to pay any retrospective charge or liability with respect to any
Insurance Policies to the extent the overall maximum premium owed by all of the
insured parties thereon has previously been paid.
(c) Buyer acknowledges and agrees that none of Buyer, PDGNB or
any Subsidiary will have, after the Closing Date, any rights under, and will not
assert claims against, any insurance policies insuring or naming Pacific
Chloride, Inc., or any of its predecessors or successors, as an insured or
additional insured, nor will Buyer, PDGNB or any Subsidiary assert rights to any
settlements of claims under such policies.
ARTICLE 12.
GENERAL PROVISIONS
Section 12.1. Notices. Any notice, request, instruction or other document
-------
to be given hereunder shall be in writing and: (a) delivered personally; (b)
sent by Federal Express or other similarly reputable overnight courier; or (c)
transmitted by facsimile, according to the instructions set forth below. Such
notices shall be sent to the following addresses and/or facsimile numbers and
shall be deemed given: (x) if delivered personally, at the time delivered; (y)
if sent by Federal Express or other similarly reputable overnight courier, at
the time sent, or (z) if transmitted by facsimile, at the time when receipt is
confirmed by the sending facsimile machine.
If to Seller, to:
Pacific Dunlop Holdings (USA) Inc.
6121 Lakeside Drive, Suite 200
Reno, Nevada 89511
United States of America
Attention: President
Facsimile: 702-824-4626
with a copy to:
Gardner, Carton & Douglas
-40-
<PAGE>
321 N. Clark Street
Suite 3400
Chicago, Illinois 60610
United States of America
Attention: Mr. Robert J. Wilczek
Facsimile: 312-644-3381
If to Buyer, to:
Exide Corporation
2901 Hubbard Road
Ann Arbor, MI 48105
Attention: General Counsel
Facsimile: (734) 827-2575
United States of America
with a copy to:
Kirkland & Ellis
200 E. Randolph Drive
Chicago, Illinois 60601
Attention: Mr. Carter W. Emerson, P.C.
Facsimile: 312-861-2200
or to such other address as such party may indicate by a notice delivered to the
other parties hereto in accordance with the provisions of this Section 12.1.
------------
Section 12.2. Confidential Information. Each party agrees that it will
------------------------
treat in confidence all documents, materials and other information which it
shall have obtained regarding any of the other parties during the course of the
negotiations leading to the consummation of the transactions contemplated hereby
(whether obtained before or after the date of this Agreement), the investigation
provided for herein and the preparation of this Agreement and other related
documents ("Confidential Information"), and, in the event the transactions
contemplated hereby shall not be consummated, each party will return to the
other party all copies of nonpublic Confidential Information which have been
furnished in connection therewith. Confidential Information shall not be
communicated to any third Person (other than the parties' respective counsel,
accountants, financial advisors, or environmental consultants). No party shall
use any Confidential Information in any manner whatsoever except solely for the
purpose of evaluating the proposed transaction. Notwithstanding the foregoing,
after the Closing, Buyer may use or disclose any Confidential Information
related to PDGNB and the Subsidiaries. The Seller shall not at any time after
the Closing disclose any Confidential Information relating to PDGNB or the
Subsidiaries. The obligation of each party to treat Confidential Information in
confidence shall not apply to any Confidential Information which (i) is or
becomes available to such party from a source other than such party, (ii) is or
becomes available to the public other than as a result of disclosure by such
party
-41-
<PAGE>
or its agents, (iii) is required to be disclosed under applicable law or
judicial process, but only to the extent it must be disclosed, or (iv) as to
which such party reasonably deems disclosure necessary to obtain any of the
consents or approvals contemplated hereby.
Section 12.3. No Public Announcement. Neither Buyer nor Seller shall,
----------------------
without the approval of the other party, issue any press release or other public
announcement concerning the transactions contemplated by this Agreement.
Notwithstanding the foregoing, either party may issue a press release or other
public announcement concerning the transactions contemplated by this Agreement
to the extent that such party shall be so obligated by law, or to comply with
accounting, Securities and Exchange Commission, New York Stock Exchange and
Australian Stock Exchange disclosure obligations, provided that such party shall
be obligated to give the other party prior notice of such press release or other
public announcement if prior notice is commercially feasible.
Section 12.4. Entire Agreement; Amendments. This Agreement, the
----------------------------
Coordinating Agreement, and the Exhibits and Schedules referred to herein and
therein and the Buyer Ancillary Agreements and the Seller Ancillary Agreements
contain the entire understanding of the parties hereto with regard to the
subject matter contained herein or therein, and supersede all prior written or
oral agreements, understandings or letters of intent between or among any of the
parties hereto. This Agreement shall not be amended, modified or supplemented
except by a written instrument signed by an authorized representative of each of
the parties hereto.
Section 12.5. Successors and Assigns.
----------------------
(a) The rights of each party under this Agreement and the
Coordinating Agreement shall not be assignable without the written consent of
the other party; provided, however, that no such assignment shall relieve the
assigning party from any of its duties or obligations under this Agreement or
the Coordinating Agreement.
(b) This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their successors and permitted assigns.
Nothing in this Agreement, expressed or implied, is intended or shall be
construed to confer upon any Person other than the parties and successors and
assigns permitted by this Section 12.5 any right, remedy, benefit or claim under
------------
or by reason of this Agreement.
Section 12.6. Interpretation.
--------------
(a) Article titles and headings to sections herein are inserted
for convenience of reference only and are not intended to be part of or to
affect the meaning or interpretation of this Agreement. The Schedules and
Exhibits referred to herein shall be construed with and as an integral part of
this Agreement to the same extent as if they were set forth herein.
(b) This Agreement and the Schedules and Exhibits hereto have
been mutually prepared, negotiated and drafted by each of the parties hereto and
thereto. The parties agree that the terms of this Agreement shall be construed
and interpreted against each party in the same manner
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<PAGE>
and that no such provisions shall be construed or interpreted more strictly
against one party on the assumption that an instrument is to be construed more
strictly against the party which drafted the agreement.
Section 12.7. Waivers. Any term or provision of this Agreement may be
-------
waived, or the time for its performance may be extended, pursuant to a written
action by the party or parties entitled to the benefit thereof. Any such waiver
shall be validly and sufficiently authorized for purposes of this Agreement if,
as to any party, it is authorized in writing by an authorized representative of
such party. Subject to Sections 8.1 and 8.2, the failure of any party hereto to
------------ ---
enforce at any time any provision of this Agreement shall not be construed to be
a waiver of such provision, nor in any way to affect the validity of this
Agreement or any part hereof or the right of any party thereafter to enforce
each and every such provision. No waiver of any breach of this Agreement shall
be held to constitute a waiver of any other or subsequent breach.
Section 12.8. Expenses. Subject to the provisions of the Coordinating
--------
Agreement, regardless of whether the transactions provided for in this Agreement
are consummated, each party hereto will pay its own costs and expenses incident
to the negotiation, preparation and performance of this Agreement, including the
fees, expenses and disbursements of its counsel, financial advisors, and
accountants. PDGNB and the Subsidiaries have not borne and will not bear any
such costs or expenses.
Section 12.9. Partial Invalidity. Wherever possible, each provision
------------------
hereof shall be interpreted in such manner as to be effective and valid under
applicable law, but in case any one or more of the provisions contained herein
shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect, such provision shall be ineffective to the extent, but only to the
extent, of such invalidity, illegality or unenforceability without invalidating
the remainder of such invalid, illegal or unenforceable provision or provisions
or any other provisions hereof, unless such a construction would be
unreasonable.
Section 12.10. Execution in Counterparts. This Agreement may be
-------------------------
executed in one or more counterparts, each of which shall be considered an
original instrument, and shall become binding when one or more counterparts have
been signed by each of the parties hereto and delivered to each of Seller and
Buyer.
Section 12.11. Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with the internal laws of the State of Illinois, without
giving effect to any choice of laws provisions which may direct the application
of the laws of another jurisdiction.
Section 12.12. Further Assurances and Cooperation.
----------------------------------
(a) From and after the date of this Agreement, upon the request
of either Seller or Buyer or any of their respective Affiliates, the other party
and its Affiliates shall execute and deliver such instruments, documents or
other writings as may be reasonably necessary or desirable to confirm and carry
out and to effectuate fully the intent and purposes of this Agreement.
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<PAGE>
(b) After the Closing, on reasonable advance notice, Buyer
shall cause PDGNB and the Subsidiaries to provide Seller, Seller's Affiliates,
and any advisor retained by Seller or its Affiliates with reasonable access to
the management and properties, and books, records, and documents (which were in
existence on the Closing) of PDGNB and the Subsidiaries during normal business
hours and in a manner which does not unreasonably interfere with the business of
PDGNB and the Subsidiaries for any reasonable purpose including, but not limited
to, the fulfillment of Seller's responsibilities under Section 4.1(a) of the
-------------
Coordinating Agreement, the enforcement of Seller's and its Affiliates' rights
under Article 2 of the Coordinating Agreement and clause (iii) of Section 4.2(a)
--------- -------------
of the Coordinating Agreement. As reasonably necessary, Seller, Seller's
Affiliates, and any advisor retained by Seller or its Affiliates shall be
entitled to make copies of such books, records, and documents at their expense.
If Buyer shall desire at any time to dispose of any such books, records, or
documents, Buyer shall, prior to such disposition, give Seller a reasonable
opportunity to segregate and remove such books, records, and documents as Seller
may select. The obligations of Buyer pursuant to this Section 12.12(b) shall
---------------
survive the Closing indefinitely.
Section 12.13. No Reliance. The provisions of this Agreement are intended
-----------
for the sole benefit of Buyer and Seller and shall not inure to the benefit of
any other Person, other than successors and permitted assigns of Buyer and
Seller, whether as third party or otherwise.
Section 12.14. Disclosure Schedules. The Disclosure Schedules are hereby
--------------------
incorporated by reference into and made a part of this Agreement. The inclusion
of any item in the Disclosure Schedules is intended to qualify the
representations and warranties contained in this Agreement and to set forth
other information required by this Agreement. Disclosure of information in any
one of the Disclosure Schedules shall be deemed to be a disclosure with respect
to every section of this Agreement, notwithstanding the presence or absence of a
cross-reference to Disclosure Schedules under other Sections of this Agreement
if the meaning of such disclosure in the context of such other section is
reasonably ascertainable. Disclosure of information in the Disclosure Schedules
shall not be deemed to be an admission by Seller that such information is
material for purposes of this Agreement. Summaries or extracts of any documents,
instruments, or other agreements contained in the Disclosure Schedules are for
the convenience of reference only and are qualified in their entirety by
reference to the applicable document, instrument or other agreement so
summarized or extracted from.
Section 12.15. Name Change. Prior to Closing, Seller shall have the right
-----------
to change the name of PDGNB to eliminate the words "Pacific Dunlop."
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed the day and year first above written.
SELLER:
PACIFIC DUNLOP HOLDINGS (USA) INC.
By:__________________________________
Name:________________________________
Title:_______________________________
BUYER:
EXIDE CORPORATION
By:__________________________________
Name:________________________________
Title:_______________________________
SIGNATURE PAGE TO STOCK PURCHASE AGREEMENT
<PAGE>
Schedule 6.4
Absence of Conflicts
--------------------
Buyer is a party to an Agreement Not to Compete dated June 10, 1991 with Yuasa
Battery (America), Inc. ("Yuasa"). Yuasa may claim that the transactions
contemplated in the Agreement and the Coordinating Agreement could violate such
agreement, which claim Buyer would contest. Buyer will not claim that any of
the conditions to closing in Section 8.1 are not satisfied because of such
agreement or any claim with respect to such agreement other than as contemplated
by Section 8.1(e).
<PAGE>
AMENDMENT NO. 1 TO THE
STOCK PURCHASE AGREEMENT
This AMENDMENT NO. 1, dated June 28, 2000, is to that certain Stock
Purchase Agreement, dated as of May 9, 2000 (the "Stock Purchase Agreement") is
------------------------
executed by and between PACIFIC DUNLOP HOLDINGS (USA) INC., a corporation
incorporated under the laws of the State of Delaware ("Seller") and EXIDE
------
CORPORATION, a corporation incorporated under the laws of the State of Delaware
("Buyer").
-----
For good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties agree as follows:
1. Except as amended hereby, the Stock Purchase Agreement remains in full
force and effect. Except as otherwise defined herein, capitalized terms used in
this Amendment No. 1 shall have the meanings assigned to them in the Stock
Purchase Agreement.
2. The definition of "Knowledge of the Seller Regarding Environmental
Matters" in Section 1.1 of the Stock Purchase Agreement shall be amended to
------------
replace the word "and" with the word "or".
3. Section 7.3(b) of the Stock Purchase Agreement is hereby deleted and
--------------
replaced in its entirety with the following:
Notwithstanding Section 7.3(a), except as set forth in Schedule 7.3(B),
-------------- ---------------
as expressly contemplated by this Agreement, or with the express prior
consent of Buyer, Seller shall not take, and shall cause PDGNB and the
Subsidiaries not to take, any of the actions set forth in Section 5.7(b);
--------------
provided, however, notwithstanding anything to the contrary herein, Seller
shall not make any capital expenditure in excess of Two Hundred and Fifty
Thousand United States Dollars ($250,000) (other than those that are not
identified as being "potentially deferable" in the "GNB Technologies
CapEx/Depreciation Forecast Summary" attached to Schedule 7.3(b) (the
---------------
"CapEx Summary")) without the prior written approval of Buyer. Buyer
acknowledges and agrees that, as of June 7, 2000, it has directed Seller to
defer additional expenditure in connection with all items identified on the
CapEx Summary as "potentially deferrable," and that such deferral
constitutes a departure from the ordinary course of the business of GNB.
4. The words "or its Affiliates" shall be inserted in the second sentence
of Section 12.3 of the Stock Purchase Agreement immediately preceding the words
------------
"shall be so obligated by law". The word "and" appearing between the words
"Exchange" and "Australian" in Section 12.3 shall be changed to the word "or."
------------
5. The following items in the Disclosure Schedules are hereby deleted in
their entirety:
<PAGE>
(a) Schedules designated as "A-C": Schedule 5.14(C), item 4(a) and
Schedule 5.7(B), item 7.
(b) Schedules designated as "I-C": Schedule 5.7(B), item 6.
(c) Schedules designated as "R-C": Schedule 5.5, item 6 and Schedule
5.7(B) item 6.
IN WITNESS WHEREOF, the parties have duly executed this Amendment No. 1 on
the date first above written.
PACIFIC DUNLOP HOLDINGS (USA) INC.
By:_______________________________
Name: Martin M. Hudson
Title: Attorney-in-Fact
EXIDE CORPORATION
By:_______________________________
Name:_____________________________
Title:____________________________
2
<PAGE>
ASSET PURCHASE AGREEMENT
Dated as of 28 June 2000
between
Pacific Dunlop Holdings (N.Z.) Limited
and
Exide New Zealand Limited, as Buyer.
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<S> <C>
ARTICLE 1. DEFINITIONS........................................................................... 1
Section 1.1. Definitions...................................................................... 1
ARTICLE 2. PURCHASE AND SALE..................................................................... 6
Section 2.1. Purchased Assets................................................................. 6
Section 2.2. Excluded Assets.................................................................. 8
Section 2.3. Assumed Liabilities.............................................................. 8
Section 2.4. Excluded Liabilities............................................................. 9
Section 2.5. Coordinating Agreement........................................................... 9
Section 2.6. Ownership and Risk Involved...................................................... 10
Section 2.7. Defence of Actions............................................................... 10
Section 2.8. Taxes............................................................................ 10
ARTICLE 3. PURCHASE PRICE........................................................................ 10
Section 3.1. Purchase Price................................................................... 10
Section 3.2. Allocation of Purchase Price and Assumed Liabilities............................. 10
ARTICLE 4. CLOSING............................................................................... 11
Section 4.1. Closing.......................................................................... 11
Section 4.2. To be Delivered to Buyer......................................................... 11
Section 4.3. To be Delivered to Seller........................................................ 12
Section 4.4. Form of Documents................................................................ 13
ARTICLE 5. REPRESENTATIONS AND WARRANTIES OF SELLER.............................................. 13
Section 5.1. Organization..................................................................... 13
Section 5.2. Power and Authority; Agreement Binding........................................... 13
Section 5.3. Subsidiaries and Investments..................................................... 14
Section 5.4. Absence of Conflicts............................................................. 14
Section 5.5. No Litigation.................................................................... 14
Section 5.6. No Violation..................................................................... 14
Section 5.7. Operations Since June 30, 1999................................................... 14
Section 5.8. Taxes............................................................................ 16
Section 5.9. Title to Assets.................................................................. 16
Section 5.10. Real Property.................................................................... 16
Section 5.11. Personal Property................................................................ 17
Section 5.12. Personal Property Leases......................................................... 17
Section 5.13. Governmental Permits............................................................. 18
Section 5.14. Intellectual Property............................................................ 18
Section 5.15. Employee Agreements.............................................................. 18
Section 5.16. Employee Relations............................................................... 19
Section 5.17. Contracts........................................................................ 20
Section 5.18. Status of Contracts.............................................................. 21
Section 5.19. Environmental Matters............................................................ 21
Section 5.20. Insurance........................................................................ 23
Section 5.21. Product Warranties............................................................... 23
Section 5.22. No Advisor....................................................................... 23
Section 5.23. Registration Under Goods and Services Tax Act 1985............................... 23
Section 5.24. Accounts and Records............................................................. 23
</TABLE>
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<TABLE>
<S> <C>
Section 5.25. No Misrepresentation............................................................. 23
Section 5.26. Material Consents................................................................ 24
Section 5.27. Purchased Assets................................................................. 24
Section 5.28. Powers of Attorney............................................................... 24
Section 5.29. Repco Supply..................................................................... 24
ARTICLE 6. REPRESENTATIONS AND WARRANTIES OF BUYER............................................... 24
Section 6.1. Organization..................................................................... 24
Section 6.2. Power and Authority.............................................................. 24
Section 6.3. Agreement Binding................................................................ 24
Section 6.4. Absence of Conflicts............................................................. 25
Section 6.5. No Litigation.................................................................... 25
Section 6.6. No Advisor....................................................................... 25
Section 6.7. Registration Under Goods and Services Tax Act 1985............................... 25
Section 6.8. No Misrepresentation............................................................. 25
ARTICLE 7. ACTION PRIOR TO THE CLOSING DATE...................................................... 26
Section 7.1. Preserve Accuracy of Representations and Warranties.............................. 26
Section 7.2. Consents of Third Parties; Governmental Approvals................................ 26
Section 7.3. Operations Prior to the Closing Date............................................. 27
Section 7.4. Commerce Act and OIC Act......................................................... 27
Section 7.5. Intercompany Agreements.......................................................... 27
Section 7.6. Notification of Changes.......................................................... 27
Section 7.7. Import Permit.................................................................... 27
Section 7.8. Changes to Employment Conditions................................................. 28
Section 7.9. General.......................................................................... 28
Section 7.10. Preservation of Business......................................................... 28
ARTICLE 8. CONDITIONS TO CLOSING................................................................. 28
Section 8.1. Conditions to the Obligations of the Buyer....................................... 28
Section 8.2. Conditions to the Obligations of Seller.......................................... 29
ARTICLE 9. ADDITIONAL AGREEMENT OF THE PARTIES................................................... 31
Section 9.1. Conveyance and Transfer of Owned Real Property................................... 31
Taxes............................................................................ 31
Section 9.3. Employees and Employee Benefit Plans............................................. 32
Section 9.4. Post-Closing Remittances......................................................... 34
Section 9.5. Insurance........................................................................ 34
ARTICLE 10. TERMINATION........................................................................... 34
Section 10.1. Termination...................................................................... 34
Section 10.2. Notice of Termination............................................................ 35
Section 10.3. Effect of Termination............................................................ 35
ARTICLE 11. EXCLUSIVITY OF REMEDY................................................................. 35
Section 11.1. Indemnification by Seller........................................................ 35
Section 11.2. Indemnification by Buyer......................................................... 35
Section 11.3. Exclusivity of Remedy............................................................ 35
ARTICLE 12. GOODS AND SERVICES TAX................................................................ 36
Section 12.1. Going Concern.................................................................... 36
Section 12.2. Taxable Supply................................................................... 36
ARTICLE 13. SUPERANNUATION........................................................................ 36
</TABLE>
-ii-
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<TABLE>
<S> <C>
Section 13.1. Offer Of Membership Of Buyer's Fund............................................. 36
Section 13.2. Information..................................................................... 37
Section 13.3. Accrued Benefit Values.......................................................... 37
Section 13.4. Acknowledgment.................................................................. 37
Section 13.5. Expenses........................................................................ 37
ARTICLE 14. GENERAL PROVISIONS................................................................... 38
Section 14.1. Notices......................................................................... 38
Section 14.2. Confidential Information........................................................ 39
Section 14.3. No Public Announcement.......................................................... 40
Section 14.4. Entire Agreement; Amendments.................................................... 40
Section 14.5. Successors and Assigns.......................................................... 40
Section 14.6. Interpretation.................................................................. 40
Section 14.7. Waivers......................................................................... 41
Section 14.8. Expenses........................................................................ 41
Section 14.9. Partial Invalidity.............................................................. 41
Section 14.10. Execution in Counterparts....................................................... 41
Section 14.11. Governing Law................................................................... 41
Section 14.12. Further Assurances and Cooperation.............................................. 41
Section 14.13. No Reliance..................................................................... 42
Section 14.14. Disclosure Schedules............................................................ 42
</TABLE>
EXHIBITS
Exhibit A Pacific Dunlop (NZ) Superannuation Scheme
Exhibit B Allocation of Purchase Price and Assumed Liabilities
Exhibit C Form of Supply Agreement between Repco Merchants and Exide New
Zealand Limited
Exhibit D Form of Deed of Acknowledgement and Acceptance by Employee
SCHEDULES
1.1 Permitted Encumbrance and Material Consents
5.1 Organization
5.4 Absence of Conflicts
5.5 No Litigation
5.6 No Violation
5.7(A) Operations Since June 30, 1999
5.7(B) Operations Since June 30, 1999
5.8 Taxes
5.9 Title to Assets
5.10(A) Owned Real Property
5.10(B) Leased Real Property
5.11 Personal Property
5.12 Personal Property Leases
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<PAGE>
5.13(A) Governmental Permits
5.13(B) Governmental Permits
5.14(A) Intellectual Property
5.14(B) Intellectual Property
5.14(C) Intellectual Property
5.15(A) Employee Agreements
5.15(B) Employee Agreements
5.15(E) Employee Agreements
5.15(F) Employee Agreements
5.15(G) Employee Agreements
5.16(A) Employee Relations
5.16(B) Employee Relations
5.17 Contracts
5.18 Status of Contracts
5.19 Environmental Matters
5.19(A) Environmental Matters
5.19(B) Environmental Matters
5.19(C) Environmental Matters
5.19(D) Environmental Matters
5.19(E) Environmental Matters
5.19(F) Environmental Matters
5.19(I) Environmental Matters
5.19(J) Environmental Matters
5.20 Insurance
5.21 Product Warranties
7.3(B) Operations Prior to the Closing Date
7.5 Intercompany Agreements
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<PAGE>
ASSET PURCHASE AGREEMENT
------------------------
This ASSET PURCHASE AGREEMENT, dated as of 28 June 2000 (the "Agreement")
is executed by and among PACIFIC DUNLOP HOLDINGS (N.Z.) LIMITED, a duly
incorporated company having its registered office at Wellington, New Zealand.
("Seller"), and Exide New Zealand Limited, a duly incorporated company having
its registered office in Wellington, New Zealand, ("Buyer").
WHEREAS, Seller is engaged in the business of: (i) manufacturing,
production and marketing of starting-lighting-ignition automotive and specialty
batteries and supplying original equipment manufacturers and replacement market
customers with batteries for passenger cars, light and heavy-duty trucks, golf
carts, motorcycles, garden tractors and marine use and related activities; (ii)
the manufacturing, production and marketing of batteries and allied products,
parts and service for industrial applications; and (iii) battery recycling, lead
smelting and refining, and oxide manufacturing; in each case, as conducted by
Seller immediately prior to the Closing Date (the "Business"); and
WHEREAS, Buyer desires to purchase from Seller, and Seller desires to sell
to Buyer, substantially all of the Business, and the assets and properties of
Seller used exclusively in relation to the Business, all on the terms and
subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, Buyer and Seller agree as follows:
ARTICLE 1.
DEFINITIONS
-----------
Section 1.1. Definitions. In this Agreement, the following terms have
-----------
the meanings specified or referred to in this Section 1.1 and shall be equally
-----------
applicable to both the singular and plural forms. Any agreement referred to
below shall mean such agreement as amended, supplemented and modified from time
to time to the extent permitted by the applicable provisions thereof and by this
Agreement .
"Accrued Benefit Value" means, in relation to an Existing
Member the amount determined by the trustees of the Seller's Scheme to be the
aggregate of the amounts standing to the credit of the Existing Member's No 1
and No 2 Accounts in the Seller's Scheme as at the Closing Date, adjusted to
take account of earnings and gains of and amounts payable to the Seller's
Scheme, and losses and liabilities of and amounts payable from the Seller's
Scheme, in respect of the period from the Closing Date to the date it is paid to
the Buyer's Fund.
"Action" means any lawsuit, arbitration or regulatory,
governmental or other proceeding or investigation whether at law or in equity.
"Adjoining Properties" shall mean all sites or locations other
than the Real Property or the PRP Sites to which Contaminants have migrated from
the Real Property through air, soil, surface water or groundwater.
<PAGE>
"Affiliate" means, with respect to any Person, any other
Person which directly or indirectly controls, is controlled by or is under
common control with such Person.
"Agreement" has the meaning specified in the first paragraph
of this Agreement.
"Assumed Liabilities" has the meaning specified in Section
2.3.
"Australian Agreement" means the agreement third described in
Annexure A to the Coordinating Agreement.
"Balance Sheets" means the balance sheets that are part of the
Financial Statements.
"Business" has the meaning specified in the second paragraph
of this Agreement.
"Business Day" means a day other than a Saturday, Sunday or a
day on which United States national banks are closed.
"Buyer" has the meaning specified in the first paragraph of
this Agreement.
"Buyer Ancillary Agreements" means all agreements, instruments
and documents being or to be executed and delivered by Buyer under this
Agreement.
"Buyer's Fund" means the registered superannuation scheme, or
a fund within a registered superannuation scheme, to be established or made
available by Buyer in accordance with Section 13.
"Closing" has the meaning specified in Section 4.1.
"Closing Date" has the meaning specified in Section 4.1.
"Confidential Information" has the meaning specified in
Section 14.2.
"Contaminant" means any petroleum products or any
"Contaminant" as defined in Section 2 of the Resource Management Act 1991 and
any pollutant, chemical or substance whose presence creates a hazard to human
health or the environment or a violation of any Environmental Law.
"Coordinating Agreement" means that certain Coordinating
Agreement dated as of May 9, 2000 between Pacific Dunlop Holdings (USA) Inc. and
Exide Corporation, as amended and supplemented from time to time.
"Court Order" means any judgment, order, award or decree of
any foreign, federal, state or local court, tribunal or government agency and
any award in any arbitration proceeding.
"Default GST" has the meaning specified in Section 12.2(e).
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<PAGE>
"Disclosure Schedules" means the Disclosure Schedules dated 12
June 2000, as modified pursuant to Section 5.7 of the Coordinating Agreement.
"Employee Plan" has the meaning specified in Section 5.15(b).
"Encumbrance" means any lien, charge, security interest,
mortgage, pledge, power of sale, easement, encroachment, covenant, restriction
on transfer or other restriction on or defect in title, or other encumbrance.
"Environmental Law" means all Requirements of Law relating to
pollution or the regulation and protection of human health or the environment,
including without limitation, those regarding or relating to emissions,
discharges, Releases, or threatened Releases of Contaminants, or otherwise
relating to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Contaminants.
"Existing Member" means an employee of the Seller in relation
to the Business who is a member of the Seller's Scheme at Closing.
"Excluded Assets" has the meaning specified in Section 2.2.
"Excluded Liabilities" has the meaning specified in Section
2.4.
"Expenses" means any and all reasonable expenses incurred in
connection with investigating, defending or asserting any Action or overtly
threatened Action (including court filing fees, court costs, arbitration fees or
costs, witness fees, and reasonable fees and disbursements of legal counsel,
investigators, expert witnesses, accountants and other professionals).
"Final Closing Date Balance Sheet" has the meaning specified
in the Coordinating Agreement.
"Financial Statements" has the meaning specified in the
Coordinating Agreement.
"Governmental Body" means any foreign, New Zealand, state or
local governmental authority, agency, or regulatory body.
"Governmental Permits" has the meaning specified in Section
5.13(a).
"Governing Rules" means, in relation to a superannuation fund,
the trust deed, rules or other document governing that fund.
"GST" means goods and services tax arising pursuant to the
Goods and Services Tax Act 1985 and "GST Act" means the Goods and Services Tax
Act 1985.
"Intellectual Property" has the meaning specified in Section
2.1(e).
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<PAGE>
"Intellectual Property Transfer/License Documents" has the
meaning specified in Section 4.2(h).
"Intercompany Agreements" means agreements between Seller and
an Affiliate of Seller or between divisions of Seller in connection with the
Business.
"IRD" means the Inland Revenue Department of New Zealand.
"Knowledge of the Seller" or similar phrases means matters
actually known to Grant Bolitho, Thomas Minner, Thomas Smith, Thomas O'Hare,
Mitchell Bregman or Barbara Hatcher.
"Knowledge of the Seller Regarding Environmental Matters" or
similar phrases means matters actually known to Barbara Hatcher, Grant Bolitho,
Steve Emmons or Janeen Wood.
"Leased Real Property" has the meaning specified in Section
5.10(b).
"Losses" means losses, obligations, liabilities, settlement
payments, awards, judgments, fines, assessments, penalties, and damages.
"March 31, 2000 Balance Sheet" has the meaning specified in
the Coordinating Agreement, including the notes to such balance sheet.
"Material Adverse Effect" means any event, occurrence or
condition (other than as a result of general economic conditions or events or
conditions affecting the automotive and industrial battery industry as a whole)
which has, or could reasonably be expected to have, a material adverse effect on
the financial condition, assets, results of operations, Business, or operations
of the Business, taken as a whole.
"Material Consents" means those consents set forth on Schedule
1.1.
"Owned Real Property" has the meaning specified in Section
5.10(a).
"Permitted Encumbrances" means the Encumbrances specifically
set forth on Schedule 1.1 or Schedule 5.10.
"Person" means any individual, corporation, partnership,
limited liability company or corporation, joint venture, association, trust,
unincorporated organization or Governmental Body.
"Principal US Agreement" means the Stock Purchase Agreement
With Respect To Pacific Dunlop GNB Corporation dated May 9, 2000 between Pacific
Dunlop Holdings (USA) Inc., as Seller, and Exide Corporation, as Buyer, as
amended and supplemented from time to time.
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<PAGE>
"PRP Sites" shall mean all sites (other than the Real Property
and the Adjoining Properties) with respect to which Seller, or any of its
successors or assignees have or may have liability under any Environmental Law.
"Purchase Price" has the meaning specified in Section 3.1.
"Purchased Assets" has the meaning specified in Section 2.1.
"Real Property" has the meaning specified in Section 5.10(b).
"Receivables" has the meaning specified in Section 2.1(d).
"Release" includes any and all spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping, leaching,
dumping, disposing and any other means by which a substance may be introduced
into or travel through the environment.
"Remedial Action" shall include all actions required by a
Court Order or otherwise by a Governmental Body to: (i) clean up, remove,
remediate, contain, treat, monitor, assess, evaluate or in any other way address
Contaminants; (ii) prevent or minimise a Release or threatened Release of
Contaminants; or (iii) investigate and determine if a remedial response is
needed and to design such a response and undertake post remedial investigation,
monitoring, operation and maintenance.
"Requirements of Law" means any foreign, federal, state or
local law, statute, regulation, code or ordinance of any Governmental Body
currently in effect.
"ROW Agreements" has the meaning specified in the Coordinating
Agreement.
"Schedule" refers to a schedule in the Disclosure Schedules.
"Seller" has the meaning specified in the first paragraph of
this Agreement.
"Seller Agreements" has the meaning specified in Section 5.18.
"Seller Ancillary Agreements" means all agreements,
instruments and documents being or to be executed and delivered by the Seller
under this Agreement.
"Seller Employees" has the meaning specified in Section
9.3(a).
"Seller's Scheme" means the Seller's superannuation fund,
details of which are set out in Exhibit A.
"Tax" (and, with correlative meaning, "Taxes" and "Taxable")
means any federal, state, county, local or foreign income, alternative or add-on
minimum, gross income, gross receipts, capital gains, capital, property, sales,
use, transfer, license, excise, premium, lease, estimated, environmental,
registration, value added, stamp, real property, franchise, employment, payroll,
wage, withholding or minimum tax, ad valorem, or customs duty and any other
similar taxes or governmental charges, fees, levies, assessments or liabilities
of any kind whatsoever,
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<PAGE>
whether computed on a separate or consolidated, unitary or combined basis or in
any other manner, and includes any interest, penalty or fine, or addition to tax
imposed by any Governmental Body.
"Tax Return" means any return, report or similar statement
required to be filed with respect to any Taxes (including any attached
schedules), including, without limitation, any information return, claim for
refund, amended return and declaration of estimated Tax;
"Technical Information" means all formulae, methods, recipes,
plans, data, drawings, specifications, characteristics, equipment designs,
inventions, discoveries, improvements, know-how, experience, trade secrets or
other information used in, or developed in connection with the Business.
ARTICLE 2.
PURCHASE AND SALE
Section 2.1. Purchased Assets. Upon the terms and subject to the
----------------
conditions of this Agreement, on the Closing Date, Seller shall sell, transfer,
assign, convey and deliver to Buyer, and Buyer shall purchase from Seller, all
of the rights, assets and properties of Seller of every kind and description
used in, consumed by or otherwise relating exclusively to the Business, wherever
located, real, personal or mixed, tangible or intangible as such assets shall
exist on the Closing Date, including such assets reflected in the Final Closing
Date Balance Sheet, but excluding the Excluded Assets (herein collectively
called the "Purchased Assets"). The Purchased Assets shall include, without
limitation, all of the Seller's right, title and interest in and to:
(a) Real Property. All Real Property and interests therein owned or
-------------
occupied by Seller exclusively in relation to the Business, including all land,
plant, warehouse and office facilities and other improvements and fixtures
attached to said Real Property and comprising the Owned Real Property described
in Schedule 5.10(A) and all interest in the Leased Real Property described in
----------------
Schedule 5.10(B);
----------------
(b) Machinery and Equipment. All machinery and equipment, including
-----------------------
machines, smelters, data processing hardware and software, vehicles, furniture,
fixtures, capital expenditures in process, tools, dies, moulds, and similar
tangible personal property, and all interest in any such personal property
leased from third parties owned or used by Seller exclusively in relation to the
Business, including specifically but without limitation those items listed and
described in Schedule 5.11 and Schedule 5.12;
------------- -------------
(c) Inventory. All inventories owned by Seller exclusively in
---------
relation to the Business consisting of raw materials, work in progress and
finished goods and supplies as the same may exist on the Closing Date including
goods in transit and stock ordered by and paid for by the Seller prior to the
Closing Date, but not received by the Closing Date;
(d) Receivables. All notes and trade and other accounts receivable
-----------
owed to the Seller exclusively in relation to the Business as the same may
exist on the Closing Date (the "Receivables");
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<PAGE>
(e) Proprietary Rights. All patents, patent applications, patent
------------------
disclosures and inventions; trademarks, service marks, logos, trade dress,
designs, trade names, corporate names, and any applications to register any of
the foregoing; copyrights and copyright registrations; trade secrets, know-how
and confidential business information, computer software, data or documentation,
Technical Information, and other proprietary rights or any licenses to and from
any Person with respect to any of the foregoing developed by or for Seller
exclusively in relation to the Business or employed or utilized by Seller
exclusively in the conduct of the Business, and all other intellectual,
industrial, proprietary information, and rights and interests (including common
law rights and interests) employed by or utilized by Seller exclusively in the
conduct of the Business, including without limitation, those items listed on
Schedule 5.14(A) (the "Intellectual Property");
----------------
(f) Executory Agreements. The rights of Seller to the extent such
--------------------
rights relate exclusively to the Business under any agreement to which Seller is
a party (excluding any agreement giving rise to an Excluded Liability),
including, without limitation, those listed or described on Schedule 5.17, and
-------------
the following, if any: any distribution agreement, license agreement, promissory
note, guarantee, loan agreement, security agreement, indemnity agreement,
subordination agreement, indenture, mortgage, lease (whether or not capitalized
and including, without limitation, those listed in Schedule 5.12), conditional
sale or title retention agreement, any purchase order or contract with any
customer or supplier of Seller relating exclusively to the Business to the
extent that such purchase order or contract is not fulfilled by Seller on the
Closing Date;
(g) Certain Rights of Seller. All claims, rights and causes of action
------------------------
of Seller against third Persons relating exclusively to the Business, and
including claims, rights and causes of action against third Persons arising
under warranties from vendors and others;
(h) Books and Records. Except as specified in Section 2.2(i), all
----------------- --------------
Seller's books and records relating exclusively to the Business (including all
data and other information stored on discs, hard drives, tapes or other media)
including, without limitation, employee records and copies of those books and
records, to the extent they relate to the Business, except for those books and
records which Seller is required by law to retain;
(i) Governmental Permits. All Governmental Permits held by Seller in
--------------------
relation to the Business, including those listed on Schedule 5.13(A) or Schedule
---------------- --------
5.19(B); and
-------
(j) Other Assets. All other rights, assets and properties of Seller
------------
relating exclusively to the Business, except for Excluded Assets, whether real,
personal, tangible, intangible or mixed, including books, records and files
(including all personnel files), any prepaid expenses, and any utility deposits,
all except as specifically excluded in Section 2.2.
-----------
Section 2.2. Excluded Assets. Notwithstanding the provisions of
---------------
Section 2.1, the Purchased Assets shall not include the following(herein
-----------
referred to as the "Excluded Assets"):
(a) Cash. All cash, cash equivalents, bank accounts, certificates of
----
deposit, investment securities, commercial paper and any other marketable
securities or similar investments of Seller;
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<PAGE>
(b) Corporate Records. All corporate minute books, share registers
-----------------
and other statutory company registers and the common seals of Seller;
(c) Taxes. All refunds of any Taxes paid by the Seller, and all Tax
-----
records and Tax Returns with respect to periods ending on or before the Closing
Date, and all claims for Taxes paid by the Seller;
(d) Certain Rights of Seller. All agreements and all claims, rights
------------------------
and causes of action relating to Excluded Assets or relating to liabilities and
obligations not included in Assumed Liabilities;
(e) Intercompany Loans. Any liabilities or obligations owing to
------------------
Seller by any Affiliate of Seller that are not effectively eliminated by means
of intercompany adjustments effected in connection with the preparation of the
Final Closing Date Balance Sheet and the audit performed in connection
therewith;
(f) Insurance. All business insurance policies of Seller and all
---------
rights thereunder;
(g) Other Assets, etc. Any other rights, assets and properties of the
-----------------
Seller not used exclusively in the Business;
(h) Excluded Names. The Seller's rights to the following names and
--------------
trademarks: Dunlop (subject to section 4.2(h)), Olympic; and
(i) Books and Records. All books and records relating to any of the
-----------------
foregoing and originals of all other books and records which Seller is required
by law to retain.
Section 2.3. Assumed Liabilities. On and from the Closing Date, Buyer
--------------------
shall assume and agree to discharge and shall keep Seller indemnified against
the following obligations and liabilities of Seller relating to the Business:
(a) Ordinary Course Liabilities. The current liabilities of Seller
---------------------------
relating to the Business or the Purchased Assets as of the Closing Date to the
extent provided for in the Final Closing Date Balance Sheet;
(b) Executory Contracts. Liabilities, obligations, and commitments of
Seller arising under the Seller Agreements, and all other contracts, agreements,
or commitments entered into in the ordinary course of business to which Seller
is a party in relation to the Business or by which it or any of the Purchased
Assets is bound that is not required to be set forth on any Schedule to this
Agreement;
(c) Sales Orders. All liabilities, obligations, and commitments with
------------
respect to sales orders placed with Seller in the ordinary course of business of
the Business to the extent such orders have not been filled as of the Closing
Date;
(d) Product Warranties. All obligations of Seller pursuant to product
------------------
or service guarantees or warranties (whether express or implied) or under
Seller's product return policies
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<PAGE>
given in the ordinary course of business of the Business by Seller, including,
without limitation, all liabilities and obligations for product returns
(regardless of whether such products were sold before or after the Closing
Date);
(e) Employees. Holiday entitlements and other employee entitlements
---------
due post-closing;
(f) Actions. Liabilities arising from the Actions referenced in the
-------
Disclosure Schedules and Expenses relating to such Actions; and
(g) Environmental Liabilities. All costs and liabilities of whatever
---------------------------
nature arising from or relating to matters disclosed in Schedule 5.19 of the
-------------
Disclosure Schedules. All of the foregoing liabilities and obligations to be
assumed by Buyer hereunder are referred to herein as the "Assumed Liabilities."
Section 2.4. Excluded Liabilities. Buyer shall not assume or be
--------------------
obligated to pay, perform or otherwise discharge any liabilities or obligations
of Seller other than the Assumed Liabilities (all such liabilities and
obligations not being assumed being herein called the "Excluded Liabilities").
The Excluded Liabilities include:
(a) Taxes. Any Taxes levied against Seller on or prior to the Closing
-----
Date or subsequent to the Closing Date but relating to periods ending on or
prior to the Closing Date, but only insofar as such Taxes have not been
reflected or reserved against in the Final Closing Date Balance Sheet;
(b) Intercompany Loans. Any liabilities or obligations owing to any
------------------
Affiliate of Seller that are not effectively eliminated by means of intercompany
adjustments effected in connection with the preparation of the Final Closing
Date Balance Sheet and the audit performed in connection therewith; and
(c) Excluded Assets. Liabilities or obligations in respect of any
---------------
Excluded Assets.
Section 2.5. Coordinating Agreement. The parties agree that nothing in
----------------------
this Agreement is intended to exclude, or reduce the operation or effect of, the
indemnities and limitations contained in Article 4 of the Coordinating
Agreement.
Section 2.6. Ownership and Risk Involved. Until Closing, Seller
---------------------------
remains the owner of and bears all risks in connection with the Business, the
Purchased Assets and the Assumed Liabilities. On Closing, property in and risk
of the Business, the Purchased Assets and the Assumed Liabilities passes to the
Buyer.
Section 2.7. Defence of Actions. In relation to each of the Actions
------------------
referred to in Section 2.3(f) Seller must using resources provided by Buyer and
subject to being indemnified by Buyer against all costs, claims, liabilities and
expenses suffered or incurred by Seller:
(a) use its best endeavours to conduct the Action in all respects in
accordance with the lawful and proper instructions and directions of Buyer and
must promptly take all lawful and
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<PAGE>
proper action (including execution, lodgement and service of documents and
correspondence) required by Buyer to avoid, defend, compromise or settle the
Action;
(b) Not do any act other than as instructed or directed by Buyer; and
(c) Provide Buyer and its representatives and advisors at all times
with full and free access (with the right to take copies) of all documents and
correspondence relevant to the Action.
Section 2.8. Taxes. On and from the Closing Date, Buyer agrees to
-----
discharge, in accordance with Section 9.2(b), and shall keep the Seller
--------------
indemnified against all current liabilities for Taxes to the extent reflected or
reserved against in the Final Closing Date Balance Sheet.
ARTICLE 3.
PURCHASE PRICE
Section 3.1. Purchase Price. The purchase price (the "Purchase Price")
--------------
shall be equal to Thirteen Million Seven Hundred Ninety Thousand U.S. Dollars
(U.S.$13,790,000) (subject to the adjustments provided for in the Coordinating
Agreement), plus GST, if any. At the Closing, Buyer shall pay the Purchase Price
to Seller by wire transfer of immediately available funds to such bank account
as Seller shall direct in writing. After Closing, the Purchase Price shall be
adjusted pursuant to the Coordinating Agreement.
Section 3.2. Allocation of Purchase Price and Assumed Liabilities. The
----------------------------------------------------
Purchase Price and the value of the Assumed Liabilities shall be allocated among
the Purchased Assets as set forth on Exhibit B, attached hereto (subject to the
adjustments provided for in the Coordinating Agreement). The parties agree that
the allocation set forth on Exhibit B as amended and reissued pursuant to the
Coordinating Agreement, will be used by them and respected for all purposes,
including income tax and stamp duty purposes, and that the parties shall follow
such allocation for all reporting purposes.
ARTICLE 4.
CLOSING
Section 4.1. Closing. The closing of the purchase and sale of the
-------
Purchased Assets (the "Closing") shall be consummated at 10:00 a.m. Chicago time
on the last Business Day of the month following the month in which the last of
the conditions specified in Article 8 is satisfied or waived, at the offices of
Gardner, Carton & Douglas at 321 North Clark Street, in Chicago, Illinois, or at
such other time or place as shall be agreed upon by Buyer and Seller.
Notwithstanding the foregoing, if the date upon which the last of the conditions
specified in Article 8 is satisfied or waived is five (5) (or fewer) Business
Days before the last day of the month, then the Closing shall be consummated on
the fifth (5th) Business Day following the date on which the last of such
conditions were satisfied or waived, or at such other date as may be agreed upon
by Buyer and Seller. The time and date on which the Closing is actually held is
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<PAGE>
referred to herein as the "Closing Date." The Closing shall be effective as of
the close of business on the Closing Date.
Section 4.2. To be Delivered to Buyer. At the Closing, Seller shall
------------------------
deliver or cause to be delivered to Buyer:
(a) a certificate of a director of Seller in a form reasonably
satisfactory to Buyer certifying as to the accuracy of the Seller's
representations and warranties at and as of the Closing and that Seller has
performed and complied with all of the terms, provisions and conditions to be
performed and complied with by Seller at or before the Closing;
(b) a certificate of a director of Seller in a form reasonably
satisfactory to Buyer, dated the Closing Date, certifying as to: (i) Seller's
constitution; (ii) the resolutions of Seller's board of directors authorizing
the execution and performance of this Agreement and the transactions
contemplated hereby; and (iii) incumbency and signatures of the officers
executing this Agreement and any Seller Ancillary Agreement;
(c) certificates of title or registration (or like documents) with respect
to any vehicles or other equipment included in the Purchased Assets for which a
certificate of title or registration is required in order to transfer title, and
a registered discharge of all Encumbrances (other than Permitted Encumbrances)
in respect thereto;
(d) all Material Consents (it being expressly understood that Seller shall
have no obligation to deliver to Buyer any consents other than the Material
Consents) and all assignments of other agreements which have been obtained by
the Closing Date. Provided always that it is agreed that any foreign exchange
hedging contracts and letters of credit are not be transferred to the Buyer,
which must make its own arrangements in respect of the matters concerned with
effect from Closing;
(e) such assignments with respect to the Leased Real Property described
in Schedule 5.10(B) as have been obtained by Closing Date;
----------------
(f) all documents as may be necessary to transfer title of the Owned Real
Property to Buyer including a registrable Memorandum of Transfer of the Owned
Real Property to Buyer, and a registered discharge of all Encumbrances (other
than Permitted Encumbrances) in respect thereto;
(g) documentation sufficient to convey by transfer or license Intellectual
Property to Buyer from Seller and its Affiliates (the "Intellectual Property
Transfer/License Documents");
(h) license to Buyer relating to the use of the Dunlop trademark on
automotive batteries to be supplied to South Pacific Tyres N.Z. Limited;
(i) all necessary documents of title, transfer documents (including
registerable transfers, deeds of discharge of Encumbrances and deeds of
assignment, as the case may be), licenses and any other documents that may be
necessary to transfer ownership of the Business,
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<PAGE>
the Purchased Assets and the Assumed Liabilities to Buyer or to permit Buyer to
continue to operate the Business uninterrupted after the Closing;
(j) those of the Purchased Assets capable of transfer by delivery, the
title to which shall pass to the Buyer on delivery;
(k) originals or counterparts of all written agreements referred to in
Section 2.1(f) and other documents connected with the Business;
--------------
(l) all of the books, records, files and other relevant information
including all electronically stored information and documents relating to the
Business, the Purchased Assets and the Assumed Liabilities including lists of
customers, suppliers, employees, agents and distributors;
(m) a duly executed Deed of Renewal and Extension in relation to the
undated written agreement between South Pacific Tyres (NZ) Limited and Seller
relating to the supply of batteries to South Pacific Tyres (NZ) Limited entered
into in 1998:
(i) extending the term of that agreement until November 31, 2002; and
(ii) varying the prices payable for products supplied pursuant to that
agreement so that, as from the Closing Date, they are the lower of the
prices in effect on the date hereof charged under that agreement, or the
prices arrived at by applying to these prices the same percentage reduction
as is referred to in Section 4.2(g) of the Australian
Agreement.
(n) a duly executed assignment in favor of the Buyer of the agreement
referred to in Section 4.2(m);
(o) an agreement in the form set out in Exhibit C amended so that the
---------
prices payable for products supplied pursuant to that agreement, shall be the
lower of these reflected in the Price Schedule annexed to that agreement or the
prices arrived at by applying to those prices the same percentage reduction as
is referred to in Section 4.2(g) of the Australian Agreement
(p) such other certificates and documents as Buyer or its counsel may
reasonably request to effect a transfer of the Purchased Assets.
Section 4.3. To be Delivered to Seller. At the Closing, Buyer shall, in
-------------------------
addition to the payment under Section 3.1 above, deliver to Seller:
(a) a certificate of Buyer in a form reasonably satisfactory to Seller
certifying as to the accuracy of the Buyer's representations and warranties at
and as of the Closing and that Buyer has performed and complied with all of the
terms, provisions and conditions to be performed and complied with by Buyer at
or before the Closing;
(b) a certificate of a director of Buyer in a form reasonably satisfactory
to Seller, dated the Closing Date, certifying as to: (i) Buyer's constitution;
(ii) the resolutions of Buyer's board of directors authorizing the execution and
performance of this Agreement and the
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transactions contemplated hereby; and (iii) incumbency and signatures of the
officers executing this Agreement and any Buyer Ancillary Agreement and (iv) a
special resolution of Buyer's shareholders approving the execution and
performance of this Agreement and the transactions contemplated hereby;
(c) a counterpart of the agreement referred to in Section 4.2(o), duly
executed by Buyer; and
(d) such other certificates and documents as Seller or its counsel may
reasonably request to effect closing of this transaction.
Section 4.4. Form of Documents. The documents and instruments referred to
-----------------
in Sections 4.2 and 4.3 shall be satisfactory as to form to counsel for the
--------------------
party to whom they are delivered.
ARTICLE 5.
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
Section 5.1. Organization. Seller is a company duly incorporated in New
------------
Zealand. Seller is not in violation of any provision of its constitution. Seller
is duly qualified or licensed to do business and is in good standing as a
foreign corporation in each of the jurisdictions specified in Schedule 5.1.
------------
Seller is duly qualified or licensed to do business as a foreign corporation
under the laws of each jurisdiction in which such qualification is required,
except for those jurisdictions where the failure to so qualify would not have a
Material Adverse Effect.
Section 5.2. Power and Authority; Agreement Binding. Seller has all
--------------------------------------
requisite corporate power and authority to execute and deliver this Agreement
and the Seller Ancillary Agreements and to perform its obligations hereunder and
thereunder, to own or hold under lease its properties and assets, to carry on
the Business as currently conducted, and to operate the properties and assets
now being operated by it in relation to the Business. Seller's execution of this
Agreement has been duly authorized and approved by all necessary corporate
action. This Agreement has been and the Seller Ancillary Agreements will be duly
executed and delivered by Seller and, assuming due authorization, execution, and
delivery by Buyer, is and will be the legal, valid and binding obligations of
Seller enforceable against Seller in accordance with their respective terms,
subject to general principles of equity and except as enforceability may be
limited by applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other similar laws of general application relating
to creditors' rights generally.
Section 5.3. Subsidiaries and Investments. This clause is intentionally
----------------------------
blank.
Section 5.4. Absence of Conflicts. Except as set forth in Schedule 5.4, the
-------------------- ------------
execution, delivery and performance of this Agreement and the Seller Ancillary
Agreements, and the consummation of the transactions contemplated hereby and
thereby, will not:
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<PAGE>
(a) conflict with, result in a breach of the terms, conditions or
provisions of, or constitute a default, an event of default or an event creating
rights of acceleration, termination or cancellation, or result in the
termination of or result in the creation or imposition or crystallisation of any
Encumbrance upon the Purchased Assets or Assumed Liabilities under: (i) any
note, instrument, contract, agreement, mortgage, indenture, lease, license or
franchise to which Seller or any Affiliate of Seller is a party or by which it
or any of its assets is bound; (ii) any Court Order; or (iii) any Requirements
of Law; except for any of the foregoing which, individually or in the aggregate,
is or are not likely to have a Material Adverse Effect or hinder or impair the
consummation of the transactions contemplated hereby or by the Seller Ancillary
Agreements; or
(b) require the approval, consent, authorization or act of, or the making
by Seller or any Affiliate of Seller of any declaration, notification, filing or
registration with any Person, except in each case, for any of the foregoing
which, individually or in the aggregate, if not taken, is or are not likely to
have a Material Adverse Effect, or materially hinder or impair the consummation
of the transactions contemplated hereby.
Section 5.5. No Litigation. Except as set forth in Schedule 5.5, there is
------------- ------------
no Action pending or, to the Knowledge of the Seller, threatened against Seller
in relation to the Business and (i) there has not been, to the Knowledge of the
Seller, any claim asserted by any Person that could lead to an Action, and (ii)
Seller is not in relation to the Business subject to any currently pending Court
Order. Except as set forth in Schedule 5.5, to the Knowledge of the Seller,
------------
there is no Action pending or threatened against any officer or director of
Seller in relation to the Business arising out of his or her service as an
officer or director of Seller.
Section 5.6. No Violation. Except as set forth in Schedule 5.6, Seller has
------------ ------------
complied and is in compliance with all Court Orders and Requirements of Law
which are applicable to Seller in relation to the Business, except for such
Requirements of Law as to which noncompliance is not likely to have a Material
Adverse Effect.
Section 5.7. Operations Since June 30, 1999.
------------------------------
(a) Except as set forth in Schedule 5.7(A), or except as reflected in the
--------------
March 31, 2000 Balance Sheet, since June 30, 1999, there has been no material
adverse change in the Business or Purchased Assets or Assumed Liabilities, taken
as a whole.
(b) Except as set forth in Schedule 5.7(B), or except as reflected in the
--------------
March 31, 2000 Balance Sheet, since June 30, 1999, Seller has conducted the
Business only in the ordinary course. Specifically, since June 30, 1999, except
as set forth in Schedule 5.7(B), Seller has not in relation to the Business:
---------------
(i) made any material change in its operations;
(ii) made any capital expenditure or entered into any contract or
commitment in excess of the capital expenditures disclosed in the "Fiscal
Year 2000 Open Sanction Summary" attached to Schedule 5.7(B) to the
Principal US Agreement;
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<PAGE>
(iii) sold, leased (as lessor), assigned, transferred, or otherwise
disposed of, or imposed or suffered to be imposed any Encumbrance on, the
Purchased Assets, except for inventory and other personal or real property
sold, leased or otherwise disposed of for fair value in the ordinary course
of business consistent with past practice and except for Permitted
Encumbrances;
(iv) cancelled any debts owed to or claims held (including the
settlement of any Action) other than in the ordinary course of business
consistent with past practice;
(v) created, incurred or assumed, or agreed to create, incur or
assume, any indebtedness for borrowed money or entered into, as lessee, any
capitalized lease obligations (as defined in Statement of Standard
Accounting Practice 18) or guaranteed any such indebtedness or leases of
others or made any loans other than in the ordinary course of business
consistent with past practice;
(vi) written off as uncollectible or accelerated or delayed
collection of notes or accounts receivable in advance of or beyond their
regular due dates or the dates when the same would have been collected
other than in the ordinary course of business consistent with past
practice;
(vii) delayed or accelerated payment of any accounts payable or
other liabilities beyond or in advance of their due date or the date when
such liabilities would have been paid other than in the ordinary course of
business consistent with past practice;
(viii) except as set forth in Schedule 5.15(A), entered into or
----------------
amended any employment, severance or similar agreement or arrangement or
made any increases in the wages, bonuses or benefits of its employees
(other than any increases made in the ordinary course of business
consistent with past practice);
(ix) waived any rights or settled any claims, except for such
waivers or settlements granted or entered into in the ordinary course of
business;
(x) made any change in any method of accounting;
(xi) suffered or incurred any damage, destruction, fire, explosion,
accident, flood or other casualty loss or act of God (whether or not
covered by insurance) to any material operating asset or group of operating
assets;
(xii) entered into or amended any purchase or sale contract outside
the ordinary course of business;
(xiii) suffered any amendment, termination, suspension or revocation
of any Governmental Permits;
(xiv) adopted any Employee Plan or amended or modified any already
existing Employee Plan;
(xv) amended its constitution;
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<PAGE>
(xvi) manufactured inventory in excess of its expected needs; or
(xvii) where applicable, agreed to do any of the foregoing.
Section 5.8. Taxes. Except as set forth in Schedule 5.8:
----- ------------
(a) Seller has accurately prepared and timely filed (including all
extensions) all Tax Returns to the extent they relate to the Business.
(b) All such Tax Returns have been prepared in compliance with applicable
Requirements of Law and, to the extent they relate to the Business, are true and
correct and properly reflect the Taxes due for the periods covered thereby.
(c) All Taxes due and payable by Seller in relation to the Business have
been properly paid.
(d) Seller has not in relation to the Business waived any law or
regulation fixing, or consented to the extension of, any period of time for
assessment of any Taxes which waiver or consent is currently in effect nor been
requested or been granted an extension of time for filing any Tax Return which
has not yet been filed.
(e) There are no material elections, consents or agreements with tax
authorities other than those reflected on tax forms filed with tax authorities.
Section 5.9. Title to Assets. Seller is the exclusive and absolute owner
---------------
and has good title to, or a valid leasehold interest in, all of the personal
property included in the Purchased Assets free and clear of all Encumbrances,
except for: (a) Permitted Encumbrances; (b) the lien of current taxes not yet
due and payable, and (c) other exceptions disclosed in Schedule 5.9. Except as
------------
disclosed in Schedule 5.9, the personal property included in the Purchased
------------
Assets is usable in the ordinary course of business of the Business and conforms
to all Requirements of Law relating to its construction, use and operation,
except where such nonconformity is not likely to have a Material Adverse Effect.
Section 5.10. Real Property.
-------------
(a) Schedule 5.10(A) contains a complete and accurate list, including a
----------------
brief description of each parcel of real property currently owned by Seller in
relation to the Business (the "Owned Real Property") and a brief description of
each option held by Seller in relation to the Business to acquire any real
property in respect of which Seller represents that except as set out in
Schedule 5.10(A):
----------------
(i) Seller is in possession of such property and will by the Closing
Date have legal and beneficial title to the Owned Real Property free and
clear of all Encumbrances except for Permitted Encumbrances;
(ii) Seller has the legal right to sell such property and has not
previously sold, leased licensed or granted any option to purchase or lease
affecting such property.
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<PAGE>
(b) Schedule 5.10(B) sets forth a complete and accurate list, including a
----------------
brief description of the material terms of all material leases, subleases or
similar agreements providing for the use of real property in relation to the
Business under which Seller is lessee or sublessee of, or holds or operates, any
real property owned by any third Person (the "Leased Real Property" and used in
connection with the Business). The Owned Real Property and the Leased Real
Property are collectively referred to herein as the "Real Property."
(c) Seller is the exclusive and absolute owner and has good and marketable
title to the Owned Real Property owned by it and a good and valid leasehold
interest in all of the Leased Real Property leased by it, free and clear of all
Encumbrances except for Permitted Encumbrances. The occupation, possession and
use of the Leased Real Property by Seller has not been disturbed and, to the
Knowledge of the Seller, no claim has been asserted or threatened which is
adverse to the rights of Seller to the continued occupation, possession and use
of the Leased Real Property, as currently utilized.
(d) With respect to each such parcel of Owned Real Property, except as
disclosed on Schedule 5.10(A): (i) there are no outstanding options or rights of
----------------
first refusal of third parties with respect to the purchase, lease or use of any
such property or any portion thereof or any interest therein (other than the
right of Buyer pursuant to this Agreement); and (ii) the current use of the
Owned Real Property does not violate in any material respect any instrument of
record or agreement affecting such Owned Real Property.
Section 5.11. Personal Property. Schedule 5.11 contains a list of all
----------------- -------------
machinery, equipment, and vehicles owned by Seller in relation to the Business
having an original cost of NZ$220,000 or more.
Section 5.12. Personal Property Leases. Schedule 5.12 contains a brief
------------------------ -------------
description of each lease or other agreement or right, whether written or oral,
(including in each case the annual rental, the expiration date thereof and a
brief description of the property covered) under which Seller is, in relation to
the Business, lessee of, or holds or operates, any machinery, equipment, or
vehicle owned by a third Person, except those which are terminable by Seller
without cost or penalty on 30 days' or less notice or which provide for annual
rentals of less than NZ$220,000.
Section 5.13. Governmental Permits.
--------------------
(a) Except as disclosed in Schedule 5.13(A), Seller owns, holds or
----------------
possesses all material licenses, certificates, franchises, permits, privileges,
immunities, approvals and other authorisations from a Governmental Body which
are necessary to entitle Seller to own or lease, operate and use its assets and
conduct the Business substantially as currently operated (herein collectively
called "Governmental Permits"). Notwithstanding the foregoing, Governmental
Permits required under Environmental Laws are addressed solely in Section
-------
5.19(b).
-------
(b) Except as set forth in Schedule 5.13(B): (i) Seller has, in relation
----------------
to the Business, fulfilled and performed its obligations under each of the
Governmental Permits, except for such nonfulfillment or nonperformance which is
not likely to have a Material Adverse Effect; and (ii) no written notice of
cancellation, revocation, suspension, or default or of any dispute concerning
any Governmental Permit has been received by Seller in relation to the Business
and,
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<PAGE>
to the Knowledge of the Seller, there is no basis for the issuance of such
notice except as a result of the consummation of the transactions contemplated
hereby or except as is not likely to have a Material Adverse Effect.
Section 5.14. Intellectual Property.
---------------------
(a) Except as set forth on Schedule 5.14(A), there are no material
----------------
patents, patent applications, trademarks or trademark registrations, service
marks or service mark registrations, trade names, Internet domain names,
corporate names, or any applications to register any of the foregoing,
copyrights, licenses to or from any Person with respect to any of the foregoing,
used by Seller in relation to the Business or otherwise relating to the Business
substantially as currently conducted.
(b) Each item constituting part of the Intellectual Property has been, to
the extent indicated in Schedule 5.14(B), duly registered, filed or issued, as
---------------
the case may be, as is indicated in Schedule 5.14(B), and such registrations,
----------------
filings and issuances remain in full force and effect.
(c) Except as set forth on Schedule 5.14(C), Seller owns and possesses all
----------------
right, title and interest in and to the Intellectual Property, and has not
received written notice of any claim by any Person contesting the validity,
enforceability, use, or ownership of any Intellectual Property patent
disclosures or inventions or asserting that the Seller is infringing the
intellectual property rights of others. Schedule 5.14(C) sets forth all
----------------
technology (including Intellectual Property) owned by third parties and used by
Seller. To the Knowledge of the Seller, except as set forth in Schedule 5.14(C),
----------------
no Person is infringing the rights of the Seller with respect to any
Intellectual Property. Seller uses all reasonable efforts to protect its trade
secrets relating to the Business.
Section 5.15. Employee Agreements.
-------------------
(a) Except as described in Schedule 5.15(A), Seller is not a party to or
----------------
bound by any collective employment contract, individual employment contract,
redundancy agreement, consulting, independent contractor or service agreement,
deferred compensation agreement, confidentiality agreement or covenant not to
compete which is material to the Business.
(b) For purposes of this Agreement, the term "Employee Plan" includes any
written pension, superannuation, retirement, savings, disability, medical,
dental, health, life (including, without limitation, any individual life
insurance policy under which an employee of Seller is the named insured and as
to which Seller makes premium payments, whether or not Seller is the owner,
beneficiary or both of such policy), incentive, severance pay death benefit,
group insurance, profit-sharing, deferred compensation, share option, share
purchase, bonus, capital accumulation plan, vacation pay, trust, contract,
agreement, or policy whether or not any of the foregoing is funded or insured,
which provides benefits to current or former employees of Seller employed in the
Business, and to which Seller is a party or by which it (or any of its rights,
properties or assets) is bound. Except as described in Schedule 5.15(B), (i)
----------------
Seller does not maintain and is not required to contribute to, any Employee Plan
on behalf of its employees; and (ii) no current or former employees of Seller
are covered under any Employee Plan.
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<PAGE>
(c) Except as disclosed in Schedule 5.15(E), Seller has no liabilities for
----------------
post-retirement welfare benefits, including retiree medical benefits in relation
to the Business.
(d) Each Employee Plan has at all times been properly administered in
accordance with all such Requirements of Law, except for such impropriety as is
not likely to have a Material Adverse Effect. Except as disclosed in Schedule
--------
5.15(F), each Employee Plan has been maintained and administered in substantial
-------
compliance with its terms.
(e) Except as disclosed in Schedule 5.15(G), Seller is not, in relation to
----------------
the Business, delinquent as to contributions or payments to or in respect of any
Employee Plan as to which Seller is obligated to make contributions or payments,
nor has Seller failed to pay any assessments made with respect to any such
Employee Plan. All contributions, accruals and payments with respect to Employee
Plans that are required to be made by Seller with respect to periods ending on
or before the Closing Date (including periods from the first day of the then-
current plan or policy year to and including the Closing Date) have been made or
will be accrued before the Closing Date by Seller in accordance with the
appropriate actuarial valuation report, plan documents, trust documents,
insurance contracts or arrangements or Requirements of Law. None of the Employee
Plans has any material unfunded liabilities which are not reflected in the
Financial Statements.
Section 5.16. Employee Relations.
------------------
(a) Except as set forth in Schedule 5.16(A): (i) Seller is, in relation to
----------------
the Business, in compliance with all applicable Requirements of Law with respect
to labor and employment, including employment practices, terms and conditions of
employment and wages, overtime pay, and hours, except for such noncompliance as
is not likely to have a Material Adverse Effect; (ii) Seller has not, in
relation to the Business, breached the Human Rights Act 1993; and (iii) with
respect to employees and former employees who rendered services to, or
participated in conduct or activities in connection with Seller, Seller is not
liable for any arrears of wages, salaries or other payments.
(b) Except as set forth in Schedule 5.16(B), there are no: (i) Human
----------------
Rights Act 1993 charges or complaints pending or, to the Knowledge of the
Seller, threatened against Seller in relation to the Business ; (ii)
discrimination charges pending or, to the Knowledge of the Seller, threatened
against Seller in relation to the Business before any agency, authority,
tribunal or court; (iii) complaints or charges pending or, to the Knowledge of
the Seller, threatened against Seller under Health and Safety in Employment Act
1992; or (iv) to the Knowledge of the Seller, strike, stoppage, attempt to
organize an unrepresented bargaining unit, attempt to deregister the recognized
union, or material personal grievances, disputes, applications or actions before
the Employment Tribunal or Employment Court or strikes pending or threatened
between Seller, in relation to the Business, and its employees or any trade
union or employee organisation labor union or organization representing or
claiming to represent such employees' interests; or (v) collective bargaining
agreement currently being negotiated by Seller with respect to the employees of
the Business.
Section 5.17. Contracts. Except as set forth in Schedule 5.17, Seller
--------- -------------
is not, in relation to the Business, a party to or bound by:
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<PAGE>
(a) any consignment, distributor, dealer, manufacturer's representative,
sales agency, advertising representative or advertising or public relations
contract, agreement or commitment which is reasonably anticipated by Seller to
involve the payment of more than NZ$220,000 per year;
(b) any contract, agreement or commitment regarding the sale or other
disposition of products or services by Seller or for the purchase of raw
materials, products or services by Seller which is reasonably anticipated by
Seller to involve the receipt or payment of more than NZ$220,000 per year;
(c) any guarantee or indemnification agreement for the benefit of any
Person made or given outside of the ordinary course of business;
(d) any contract, agreement or commitment which provides for the
incurrence by Seller of indebtedness for borrowed money or capitalized lease
obligations;
(e) any partnership or joint venture agreement;
(f) any agreement, contract or commitment relating to capital expenditures
of an amount or value in excess of NZ$220,000;
(g) any material license of software or other intellectual property;
(h) any agreement that restricts or purports to restrict the business
activity of the Seller or limits the Seller's ability to engage in any line of
business or compete with any Person; or
(i) any agreement that was not entered into in the ordinary course of the
business of the Business consistent with past practice and that involves annual
payments in excess of NZ$220,000.
Section 5.18. Status of Contracts. Except as set forth in Schedule 5.18
------------------- -------------
hereto: (a) each of the leases, contracts and other agreements of Seller listed
in Schedules 5.10(B), 5.12, 5.14, 5.15 and 5.17 (collectively, the "Seller
----------------- ---- ---- ---- ----
Agreements") constitutes a legal, valid and binding obligation of Seller
(subject to bankruptcy, insolvency, reorganization, moratorium and similar laws
of general application relating to or affecting creditors' rights and to general
equity principles) and is in full force and effect; and (b) Seller is not, or,
to the Knowledge of the Seller, alleged to be, in material breach of, or
material default under, any of the Seller Agreements nor, to the Knowledge of
the Seller, is any other party thereto in such breach or default and, to the
Knowledge of the Seller, no event has occurred which the notice or lapse of time
would constitute such a breach or default or permit termination, modification or
acceleration of any of the Seller Agreements.
Section 5.19. Environmental Matters. Notwithstanding any other provision
---------------------
of this Agreement, this Section 5.19 contains the only representations or
------------
warranties of Seller with respect to Environmental Law or environmental matters,
and no other statement in this Agreement, in any Seller Ancillary Agreement or
in any other document or information delivered or given to or received by or on
behalf of Buyer in connection with the transactions contemplated
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<PAGE>
by this Agreement shall be deemed to be a representation or warranty relating to
Environmental Law or environmental matters:
(a) Except as set forth in Schedule 5.19(A), Seller, in relation to the
----------------
Business, is in compliance with all applicable Environmental Laws except for
such noncompliance as is not likely to have a Material Adverse Effect.
(b) Except as set forth in Schedule 5.19(B), Seller owns, holds or
----------------
possesses all material Governmental Permits required under Environmental Laws
necessary for occupation and use of the Real Property and the operation of the
Business substantially as currently conducted. All such Governmental Permits
required under Environmental Laws that are currently owned, held or possessed by
Seller in relation to the Business are listed in Schedule 5.19(B). Except as set
----------------
forth on Schedule 5.19(B), Seller is in compliance and has for the past three
----------------
(3) years complied, with all Governmental Permits except for such non compliance
as is not likely to have a Material Adverse Effect. Seller shall make
commercially reasonable efforts to transfer or cause to be transferred to Buyer
all such Governmental Permits at the Closing, including (i) giving notice to
governmental or local regulatory agencies with respect to the change in
ownership or control or responsible officials at the Real Property, (ii)
completing and submitting notices of termination, and (iii) to the extent not
transferred by the Closing Date, shall cooperate fully with Buyer in obtaining
the transfer of such Governmental Permits as promptly thereafter as possible.
(c) Except as set forth in Schedule 5.19(C), Seller, in relation to the
----------------
Business, is not subject to any pending or, to the Knowledge of the Seller
Regarding Environmental Matters, threatened investigation by, order from, claim
by, statutory request for information from, or continuing agreement with any
Person respecting: (i) any violation of Environmental Law or Governmental
Permits, (ii) any Remedial Action, or (iii) any claim of Losses and Expenses, in
each case arising from the Release or threatened Release of a Contaminant or the
presence of any Contaminant on, in, at or beneath the Real Property or the
migration of any Contaminant onto or from the Real Property.
(d) Except as set forth in Schedule 5.19(D), Seller, in relation to the
----------------
Business, is not subject to any pending or, to the Knowledge of the Seller
Regarding Environmental Matters, threatened judicial or administrative
investigation, proceeding, order, notice of violation, judgment, decree or
settlement with any continuing obligation alleging or relating to a violation of
or liability under any Environmental Law or Governmental Permits.
(e) Except as set forth in Schedule 5.19(E):
----------------
(i) Seller has not, in relation to the Business, reported a Release
pursuant to an Environmental Law;
(ii) Seller has not, in relation to the Business, filed a notice with
respect to the Contamination of land or the generation of hazardous wastes
that is required to be filed pursuant to an Environmental Law; or
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<PAGE>
(iii) to the Knowledge of the Seller Regarding Environmental Matters,
there has not been any disposal by Seller or Release of any Contaminants
on, at, in or beneath any Real Property.
(f) Except as set forth in Schedule 5.19(F), to the Knowledge of the
----------------
Seller Regarding Environmental Matters, there are no underground storage tanks
(whether active or abandoned) located at, in, or beneath the Real Property.
(g) Except as disclosed in the Schedules to Section 5.19, to the Knowledge
------------
of the Seller Regarding Environmental Matters, as of the Closing Date there is
no condition existing on the premises constituting the Owned Real Property or
Leased Real Property that will give rise to any liability of the Seller under
any Environmental Law.
(h) Seller has made available to Buyer true and correct copies of all
material environmental audits and consultant's reports relating to the past and
current operations, properties and facilities of the Seller with respect to the
Business, or any of their respective predecessors, which are in its possession
or under its reasonable control.
(i) To the Knowledge of the Seller Regarding Environmental Matters, the
sites identified on Schedule 5.19(I) constitute, and as such Schedule is updated
----------------
by Seller from time to time in its sole discretion prior to the Closing Date,
will constitute all PRP Sites as of the Closing Date.
(j) Except as set forth in Schedule 5.19(J), Seller has not received
----------------
written notice under any Environmental Law to the effect that it is or may be
liable to any Person as a result of the generation, storage, transportation,
Release, arrangement for disposal or disposal of any Contaminants on, at or, in
any Real Property.
(k) Notwithstanding any other provision of this Agreement, no
representations and warranties are made or shall be deemed to apply to the PRP
Sites.
Section 5.20. Insurance. Seller has, and at all times has had, valid
---------
insurance coverage in respect of the Business against all risks normally insured
against by persons in the same industry, underwritten by one or more well-
established and reputable insurers or adequately capitalized Affiliates.
Schedule 5.20 contains a list of all insurance policies (specifying (i) the
-------------
insurer, (ii) the amount of the coverage, (iii) the type of insurance, (iv) the
policy number and (v) any currently pending claims thereunder) maintained by or
on behalf of Seller in connection with the Business or the Purchased Assets on
its properties, assets, business or personnel related to the Business. Seller
has not, in relation to the Business, failed to give any notice or present any
claim under any insurance policy in due and timely fashion.
Section 5.21. Product Warranties. All of Seller's unexpired, express
------------------
product warranties with respect to any product of the Business that it
manufactures or sells or that it has heretofore manufactured or sold in
connection with the Business are set forth in Schedule 5.21. Seller has not
-------------
received written notice of any claim and to the Knowledge of the Seller there
are no threatened claims against the Seller in relation to the Business based on
any product warranty (except claims outstanding as of June 30, 1999, not
exceeding New Zealand equivalent of US$200,000 in the aggregate).
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Section 5.22. No Advisor. Neither Seller, nor any of its Affiliates, nor
----------
any Person acting on its or their behalf, has retained any advisor, broker,
investment banker or financial advisor in connection with this Agreement or any
transaction contemplated hereby for which the Buyer may be liable.
Section 5.23. Registration Under Goods and Services Tax Act 1985. Seller
--------------------------------------------------
warrants that it is, and will remain at all times, a "registered person" as that
term is defined in the GST Act and will produce written evidence of such
registration upon demand being made by Buyer.
Section 5.24. Accounts and Records. All the accounts, books, ledgers and
--------------------
financial and other material records of the Business have been maintained
accurately and in accordance with generally accepted accounting practices.
Section 5.25. No Misrepresentation. To the Knowledge of the Seller, the
--------------------
representations and warranties of Seller contained in this Agreement, the
Disclosure Schedules attached hereto, and the certificates and other instruments
delivered by Seller pursuant hereto, do not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
contained herein or therein not misleading.
Section 5.26. Material Consents. Except for the Material Consents, there
-----------------
are no other consents or approvals required by Seller to consummate this
Agreement which, if not obtained, would have a material and adverse effect on
the ability of the Buyer to conduct the Business immediately after Closing in
substantially the same manner as conducted by the Seller immediately before the
date of this Agreement.
Section 5.27. Purchased Assets. The Purchased Assets comprise all of the
----------------
assets now utilised by the Seller which are necessary to enable the Business to
be carried on immediately after Closing in substantially the same manner as
immediately before the date of this Agreement.
Section 5.28. Powers of Attorney. As of Closing, there will not be any
------------------
outstanding powers of attorney executed on behalf of the Seller other than with
respect to the filing of taxes, customers and similar matters and intellectual
property registrations.
Section 5.29. Repco Supply. The agreement set out in Exhibit C hereto
------------ ---------
records the terms and conditions pursuant to which the Business supplies
batteries to the Repco Division of Seller as of the date of this Agreement.
ARTICLE 6.
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Seller as follows:
Section 6.1. Organization. Buyer is a company duly incorporated in New
------------
Zealand. Buyer is not in violation of any provision of its constitution. Buyer
is duly qualified to do business and is in good standing as a foreign
corporation in each of the jurisdictions in which Buyer's operations require
that it qualify to transact business as a foreign corporation, except for those
jurisdictions where the failure to so qualify is not likely to have a material
adverse effect on
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Buyer's business or financial condition or the ability of Buyer to lawfully
consummate the transactions contemplated by this Agreement in all material
respects.
Section 6.2. Power and Authority. Buyer has the full corporate power and
-------------------
authority to execute and deliver this Agreement and the Buyer Ancillary
Agreements, to perform its obligations hereunder and thereunder, and to own and
lease its property and conduct its operations as currently conducted. Buyer's
execution, delivery and performance of this Agreement has been duly authorized
and approved by all necessary corporate action.
Section 6.3. Agreement Binding. This Agreement and the Buyer Ancillary
-----------------
Agreements have been duly executed and delivered by Buyer, and assuming due
authorization, execution and delivery by Seller, is and will be the legal, valid
and binding obligations of Buyer enforceable in accordance with their respective
terms, subject to general principles of equity and except as enforceability may
be limited by applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other similar laws of general application relating
to creditors' rights generally.
Section 6.4. Absence of Conflicts. The execution, delivery and
--------------------
performance thereby of this Agreement and the Buyer Ancillary Agreements and the
consummation of the transactions contemplated hereby and thereby, will not:
(a) conflict with, result in a breach of the terms, conditions or
provisions of, or constitute a default, an event of default or an event creating
rights of acceleration, termination or cancellation, result in termination of or
result in the creation or imposition of any Encumbrance under: (i) any term or
provision of the certificate of incorporation or constitution of Buyer, (ii) any
note, instrument, contract, agreement, mortgage, indenture, lease, license,
franchise, permit or other commitment to which Buyer is a party or by which it
or any of its assets are bound, (iii) any Court Order, or (iv) any Requirements
of Law; except in each case, for any of the foregoing which, individually or in
the aggregate, is or are not likely to have a material adverse effect on Buyer
or its business taken as a whole or hinder or impair the consummation of the
transactions contemplated hereby; or
(b) require the approval, consent, authorization or act of, or the making
by Buyer of any declaration, notification, filing or registration with, any
Person, except in each case, for: (i) any of the foregoing which, individually
or in the aggregate, if not taken, is or are not likely to have a material
adverse effect on Buyer or its business taken as a whole or materially hinder or
impair the consummation of the transactions contemplated hereby; and (ii) the
consents required, if any, from the Overseas Investment Commission and under the
Commerce Act 1986.
Section 6.5. No Litigation. There is no Action pending or, to the
-------------
knowledge of Buyer, threatened which questions the legality or propriety of the
transactions contemplated by this Agreement or the Buyer Ancillary Agreements or
which would materially hinder or impair the consummation of the transactions
contemplated hereby and there has not been, to the knowledge of Buyer, any claim
asserted by any Person that could lead to such an Action.
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Section 6.6. No Advisor. Neither Buyer nor any Person acting on its
----------
behalf has retained any advisor, broker, investment banker or financial advisor
in connection with this Agreement or any transaction contemplated hereby for
which Seller may be liable.
Section 6.7. Registration Under Goods and Services Tax Act 1985. Buyer
--------------------------------------------------
warrants that it is, and will remain at all times until the Closing Date, a
"registered person" as that term is defined in the GST Act and will produce
written evidence of such registration upon demand being made by Seller.
Section 6.8. No Misrepresentation. To the knowledge of Buyer, the
--------------------
representations and warranties of Buyer contained in this Agreement and the
certificates and other instruments delivered by Buyer pursuant hereto do not
include any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements made not misleading.
ARTICLE 7.
ACTION PRIOR TO THE CLOSING DATE
Buyer and Seller covenant and agree to take the following actions between
the date hereof and the Closing Date:
Section 7.1. Preserve Accuracy of Representations and Warranties. Buyer
---------------------------------------------------
and Seller shall refrain from taking any action that would render any
representation or warranty contained in this Agreement inaccurate as of the
Closing Date. Buyer and Seller shall promptly notify the other of any Action,
investigation, or other proceeding, that shall be instituted or threatened
against such party to restrain, prohibit or otherwise challenge the legality of
any transaction contemplated by this Agreement.
Section 7.2. Consents of Third Parties; Governmental Approvals.
-------------------------------------------------
(a) Seller and Buyer shall act diligently and reasonably to secure, before
the Closing Date, the Material Consents and the consent, approval or waiver from
any party to any Seller Agreement required to be obtained in contemplation or as
a result of the transactions contemplated hereby to secure for Buyer the
Seller's rights thereunder. Buyer shall cooperate with Seller in securing such
consents, approvals and waivers.
(b) During the period prior to the Closing Date, Seller and Buyer shall
act diligently and reasonably, and shall cooperate with each other, to secure
(i) any consents and approvals of any Governmental Body required to be obtained
in order to effect the consummation of the transactions contemplated by this
Agreement and (ii) the transfer or grant to Buyer of all Governmental Permits
required to allow Buyer to conduct the Business.
(c) To the extent that any of the consents, approvals or waivers referred
to in Section 7.2(a) or (b) (other than Material Consents and those referred to
-------------- ---
in Section 8.1(c)) have not been obtained as of the Closing Date, then upon
--------------
request by Buyer, for a period ending on March 31, 2001, Seller shall use its
best efforts, with Buyer reimbursing Seller for its out-of-pocket expenses and
indemnifying and holding Seller harmless for any liabilities or obligations
incurred by it, to:
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(i) hold the benefit of the Seller Agreement and any other consents,
approvals or waivers in question for the benefit of the Buyer and fully
cooperate with Buyer in any reasonable and lawful arrangements (including
any arrangements to subcontract the relevant Seller Agreement to Buyer)
designed to provide for Buyer the benefit of the relevant Seller Agreement
and any other consents, approvals or waivers; and
(ii) fully cooperate with Buyer in enforcing any and all rights of
Seller arising under the relevant Seller Agreement and any other consents,
approvals or waivers.
If after the above referenced period ending on March 31, 2001, any consents,
approvals or waivers have not been obtained, Buyer and Seller will cooperate in
any commercially reasonable arrangement to obviate the need for such consent,
approval or waiver, all at Buyer's expense.
Section 7.3. Operations Prior to the Closing Date.
------------------------------------
(a) During the period prior to the Closing Date, Seller shall conduct the
Business only in the ordinary course and substantially as operated prior to the
date hereof.
(b) Notwithstanding Section 7.3(a), except as set forth in Schedule
-------------- --------
7.3(B), as expressly contemplated by this Agreement, or with the express prior
------
written consent of Buyer, Seller shall not take any of the actions set forth in
Section 5.7(b); provided, however, notwithstanding anything to the contrary
--------------
herein, Seller shall not make, and since May 9, 2000 has not made, any capital
expenditure in excess of the local currency equivalent of US$250,000 (other than
those permitted by Section 7.3(b) of the Principal US Agreement) without the
prior written approval of Buyer.
Section 7.4 Commerce Act and OIC Act. Buyer and Seller shall diligently
------------------------
and in good faith cooperate with each other and with the Overseas Investment
Commission and the Commerce Commission to obtain, as soon as practicable after
execution of this Agreement, such clearances, authorisations and approvals
required from the Overseas Investment Commission and the Commerce Commission (if
any) with respect to the transactions contemplated hereby. Buyer and Seller
agree to make available to each other such information as each of them may
reasonably request relative to the business, assets and property of either of
them as may be required of each of them to file any additional information
requested by the above referenced Overseas Investment Commission and the
Commerce Commission.
Section 7.5. Intercompany Agreements. All of the Intercompany Agreements
-----------------------
and intercompany accounts payable and receivable, except for those set forth on
Schedule 7.5, shall be terminated or canceled at the Closing.
------------
Section 7.6. Notification of Changes. Each of Seller and Buyer shall
-----------------------
promptly notify the other of any event that causes any representation or
warranty given by such party in Articles 4, 5 and 6 to become untrue.
Section 7.7. Import Permit. Following Closing, the parties agree that, to
-------------
the extent that Buyer is unable to secure a permit for the importation of lead
into New Zealand (being Export Permit No. AUH994916W consented to by Ministry of
Economic Development in New
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Zealand such consent expiring on December 1, 2000) pursuant to the Import
Control (Wastes) Conditional Prohibition Order 1994, ("Import Permit"):
(a) Seller will at the Buyer's expense, use all reasonable efforts to
retain, in its name, its Import Permit existing as at the Closing Date;
(b) Buyer will use its best endeavours to obtain an Import Permit but,
subject thereto, the following provisions will apply:
(1) Continuation of Imports - Seller, on Buyer's behalf, will
to the extent permissible, and on the basis that the Buyer provides all assets
and resources of whatsoever nature necessary to achieve this, continue to import
lead for the recycling facility in New Zealand in accordance with past practice
of the Business ("Lead Importing");
(2) Reimbursement and Indemnity - Buyer will reimburse Seller
for all its costs and expenses incurred in connection with the Lead Importing
and will indemnify and hold Seller harmless from and against any and all Taxes,
costs, claims liabilities or expenses incurred by Seller in connection with such
Lead Importing.
Section 7.8. Changes to Employment Conditions. Seller covenants with
--------------------------------
Buyer to ensure that the warranty in Section 5.7(b)(viii) will not be breached
--------------------
in any material respect between the date of this Agreement and Closing.
Section 7.9. General. Each of the parties will use its reasonable best
-------
efforts to take all action and to do all things necessary, proper, or advisable
in order to consummate and make effective the transactions contemplated by this
Agreement (including satisfaction, but not waiver, of the closing conditions set
forth below).
Section 7.10. Preservation of Business. Each of the parties shall use
------------------------
reasonable best efforts to keep their businesses and properties substantially
intact, including their present operations, physical facilities, working
conditions, and relationships with lessors, licensors, suppliers, customers and
employees.
ARTICLE 8.
CONDITIONS TO CLOSING
Section 8.1. Conditions to the Obligations of the Buyer. The obligations
------------------------------------------
of Buyer under this Agreement shall, at the option of Buyer, be subject to the
satisfaction, on or prior to the Closing Date, of each of the following
conditions:
(a) No Misrepresentation or Breach of Covenants and Warranties. Seller
shall have complied in all material respects with its covenants and agreements
herein and in the Coordinating Agreement; each of the representations and
warranties of Seller contained in this Agreement and each of the Seller
Ancillary Agreements shall be true and correct in all material respects on the
Closing Date as though made on the Closing Date (except with respect to those
representations and warranties that speak as to a particular date or time, which
only need to be true and correct as of such date or time), except for changes
therein specifically permitted by this
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<PAGE>
Agreement or resulting from any transaction expressly consented to in writing by
Buyer; and there shall have been delivered to Buyer a closing certificate in a
form reasonably satisfactory to the Buyer to such effect, dated the Closing
Date, signed by a director of Seller.
(b) Closing Documents. Buyer shall have received from Seller the
-----------------
agreements and closing documents contemplated by Section 4.2.
-----------
(c) Necessary Approvals. Seller and Buyer shall have received all
-------------------
approvals and actions of or by all Governmental Bodies and any other Person
which are necessary to consummate the transactions contemplated hereby and by
the ROW Agreements, and in particular (i) if application is made, a clearance or
authorisation shall have been given under the Commerce Act 1986 to the transfer
of the Business to Buyer, or implementation of this Agreement shall have become
lawful under the Commerce Act 1986; and (ii) Buyer shall have obtained approval
of the Overseas Investment Commission (if required under the Overseas Investment
Act of 1973 and its regulations) to the purchase of the Business.
(d) Principal US Agreement. The transactions contemplated by the Principal
----------------------
US Agreement shall have been closed simultaneously with the Closing.
(e) No Suit. No Action by any Governmental Body shall be pending or
-------
threatened questioning the legality of this Agreement or the consummation of the
transactions contemplated hereby in whole or in part.
(f) No Restraint. No Court Order shall have been issued and be in effect
------------
which restrains or prohibits any material transaction contemplated hereby.
(g) No Material Adverse Change. On the Closing Date, there shall not be a
--------------------------
Material Adverse Effect.
(h) Coordinating Agreement. All conditions to Exide Corporation's
----------------------
obligations set forth in Sections 5.5, 5.6 and 5.7(a) of the Coordinating
Agreement shall have been satisfied.
Notwithstanding the failure of any one or more of the foregoing conditions,
Buyer may, at its option, proceed with the Closing without satisfaction, in
whole or in part, of any one or more of such conditions and without written
waiver; provided however, that in so proceeding with the Closing, and
notwithstanding any other provision of this Agreement, Buyer shall be deemed to
have waived any such failure and any rights or remedies it may have against
Seller by reason of such failure.
Section 8.2. Conditions to the Obligations of Seller. The obligations of
---------------------------------------
Seller under this Agreement shall, at the option of Seller, be subject to the
satisfaction, on or prior to the Closing Date, of each of the following
conditions:
(a) No Misrepresentation or Breach of Covenants and Warranties. Buyer
----------------------------------------------------------
shall have complied in all material respects with its covenants and agreements
herein and in the Coordinating Agreement; each of the representations and
warranties of Buyer contained in this Agreement shall be true and correct in all
material respects on the Closing Date as though made on the Closing Date (except
with respect to those representations and warranties that speak as to
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<PAGE>
a particular date or time, which only need to be true and correct as of such
date or time), except for changes therein specifically permitted by this
Agreement or resulting from any transaction expressly consented to in writing by
Seller; and there shall have been delivered to Seller a certificate to such
effect, dated the Closing Date and signed by two directors of Buyer.
(b) Closing Documents. Seller shall have received from Buyer the
-----------------
agreements and closing documents, contemplated by Section 4.3.
-----------
(c) Payment of Purchase Price. Buyer shall have tendered payment of the
-------------------------
Purchase Price.
(d) Necessary Approvals. Seller and Buyer shall have received all
-------------------
approvals and actions of or by all Governmental Bodies and any other Person
which are necessary to consummate the transactions contemplated hereby and by
the ROW Agreements, and in particular (i) if application is made, a clearance or
authorisation shall have been given under the Commerce Act 1986 to the transfer
of the Business to Buyer, or implementation of this Agreement shall have become
lawful under the Commerce Act 1986; and (ii) Buyer shall have obtained approval
of the Overseas Investment Commission to the purchase of the Business.
(e) Principal US Agreement. The transactions contemplated by the Principal
----------------------
US Agreement shall have been closed simultaneously with the Closing.
(f) No Restraint. No Court Order shall have been issued and be in effect
------------
which restrains or prohibits any material transaction contemplated hereby.
(g) No Suit. No action by any Governmental Body shall be pending or
-------
threatened questioning the legality of this Agreement or the consummation of the
transactions contemplated hereby in whole or in part.
(h) No Material Adverse Change. On the Closing Date, there shall have been
--------------------------
no event, occurrence or condition (other than as a result of general economic
conditions or events affecting the automotive and industrial battery business as
a whole) which has, or could reasonably be expected to have, a material adverse
effect on the financial condition, assets, results or operations, businesses, or
operations of Buyer taken as a whole.
(i) Coordinating Agreement. All conditions to Pacific Dunlop Holdings
----------------------
(USA) Inc.'s obligations set forth in Sections 5.5 and 5.7(b) of the
Coordinating Agreement shall have been satisfied.
Notwithstanding the failure of any one or more of the foregoing conditions,
Seller may, at its option, proceed with the Closing without satisfaction, in
whole or in part, of any one or more of such conditions and without written
waiver; provided however, that in so proceeding with the Closing, and
notwithstanding any other provision of this Agreement, Seller shall be deemed to
have waived any such failure and any rights or remedies it may have against
Buyer by reason of such failure.
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ARTICLE 9.
ADDITIONAL AGREEMENT OF THE PARTIES
Section 9.1. Conveyance and Transfer of Owned Real Property.
----------------------------------------------
(a) At the Closing, Seller shall deliver a registrable Memorandum of
Transfer and the Certificates of Title and other documents necessary subject to
stamping and registration to transfer legal and beneficial ownership to the
Owned Real Property with good and marketable title, free and clear of all
Encumbrances except for Permitted Encumbrances and other matters described in
the Disclosure Schedules.
Section 9.2. Taxes.
-----
(a) Except to the extent reflected as a current liability on the Final
Closing Date Balance Sheet, Seller shall be liable for and shall pay all Taxes
(whether assessed or unassessed) applicable to the Business or the Purchased
Assets, in each case attributable to all periods through to the Closing Date.
Buyer shall be liable for and shall (i) reimburse to Seller (in accordance with
Section 9.2(b)) all Taxes reflected as a current liability on the Final Closing
--------------
Date Balance Sheet, and (ii) pay all Taxes (whether assessed or unassessed)
applicable to the operation of the Purchased Assets, in each case attributable
to periods beginning after the Closing Date.
(b) Within 30 days of the final determination and agreement of the Final
Closing Date Balance Sheet in the manner provided in Section 2.1 of the
-----------
Coordinating Agreement, Buyer agrees to pay to Seller (or as Seller directs in
writing to Buyer) an amount which equals the amount of the current liabilities
for Taxes reflected or reserved against in the Final Closing Date Balance Sheet.
Seller acknowledges and agrees that any such payment shall be in full
satisfaction and discharge of Buyer's obligations under Section 2.8.
-----------
(c) Notwithstanding Section 9.2(a), any Tax attributable to the sale,
--------------
transfer or delivery of the Purchased Assets shall be borne and paid in
accordance with the provisions of Section 5.1 of the Coordinating Agreement.
Buyer and Seller agree to timely sign and deliver such certificates or forms as
may be necessary or appropriate to establish an exemption from (or otherwise
reduce), or file Tax Returns with respect to, such Taxes.
(d) Seller or Buyer, as the case may be, shall provide reimbursement for
any Tax paid by one party all or a portion of which is the responsibility of the
other party in accordance with the terms of this Section 9.2. Within a
-----------
reasonable time prior to the payment of any said Tax, the party paying said Tax
shall give notice to the other party of the Tax payable and the portion which is
the liability of each party, although failure to do so will not relieve the
other party from its liability hereunder.
(e) Buyer shall promptly notify Seller in writing upon receipt by Buyer or
any of its Affiliates of notice of any pending or threatened local or foreign
Tax audits, examinations or assessments which may materially affect the Tax
liabilities for which Seller would be required to indemnify Buyer pursuant to
paragraph (a) of this Section 9.2. Seller shall have the sole right to control
any Tax audit or administrative or court proceeding relating to taxable periods
ending at
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<PAGE>
the time of or before the Closing at its expense, and to employ counsel of its
choice at its expense. Neither Buyer nor any of its Affiliates may settle any
Tax claim for any taxable year or period ending at or before the time of the
Closing (or for the portion of any taxable year or period ending on the Closing)
which may be the subject of indemnification by Seller under Section 9.2(a)
--------------
without the prior written consent of Seller, which consent shall not be
unreasonably withheld.
(f) After the Closing, Seller and Buyer shall (and cause their respective
Affiliates to):
(i) make available to the other and to any taxing authority as
reasonably requested all information, records, and documents relating to
Taxes relating to the Business, the Purchased Assets, or the Assumed
Liabilities;
(ii) provide timely notices to the other in writing of any pending
or threatened Tax audits or assessments relating to the Business, the
Purchased Assets or the Assumed Liabilities for taxable periods for which
the other may have a liability under this Section 9.2;
-----------
(iii) furnish the other with copies of all correspondence received
from any taxing authority in connection with any Tax audit or information
request with respect to any such taxable period for which the other may
have liability under this Section; and
(iv) Buyer and Seller further agree, upon request, to use their
reasonable best efforts to obtain any certificate or other document from
any governmental authority or any other Person as may be necessary to
mitigate, reduce or eliminate any Tax that could be imposed (including,
without limitation, with respect to the transactions contemplated thereby).
Section 9.3. Employees and Employee Benefit Plans.
------------------------------------
(a) Prior to Closing, Seller shall provide Buyer a list of all current
employees of Seller who are solely or predominantly engaged in the Business
which shall include all active employees and all employees who are on parental
or medical leave, disability leave, or other authorized inactive status and who
are entitled to reinstatement or re-employment under any applicable statute,
contract or policy ("Seller Employees").
(b) Prior to Closing, Buyer shall offer employment to all Seller Employees
only on the following terms and conditions, and those Seller Employees that
accept such offer shall be transferred to Buyer's payroll as of the Closing
Date:
(i) All Seller Employees shall each be offered employment
commencing as of the Closing Date in the same position and at the same
level of responsibility and with the same pay, and substantially the same
benefits and other terms and conditions of employment and superannuation
including recognition of service with Seller and its predecessors and of
all accrued benefits and entitlements existing immediately prior to
Closing.
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<PAGE>
(ii) Seller Employees who are on parental or medical leave, or other
authorized inactive status and who are entitled to reinstatement or re-
employment under any applicable statute, contract or policy and
superannuation shall be transferred to comparable leave status with Buyer
and shall be offered employment pursuant to Section 9.3(b)(i).
-----------------
(iii) Each Seller Employee must, as a condition precedent to
employment by Buyer, validly execute a waiver in the form attached as
Exhibit D.
---------
(c) Buyer agrees that any Seller Employee who accepts employment with
Buyer as of the Closing Date shall be treated as having been a continuous
employee taking into account length of service with the Seller and its
predecessors and such Seller's Employees shall receive full credit for service
with Seller for purposes of determining such employee's eligibility for and
determining the amount of benefit entitlement for holidays, long service leave,
sick leave, redundancy compensation or other entitlements payable on termination
of employment and also for purposes of determining eligibility (including
without limitation, waiting periods under group health plans), vesting and
benefits provided under any other employee benefit plan, program, policy or
other arrangement covering such employee established, continued or otherwise
sponsored by Buyer or an Affiliate of Buyer after the Closing Date.
(d) Buyer shall assume responsibility and all liabilities and obligations
for holiday entitlement earned by Seller Employees who accept employment with
Buyer and shall indemnify and hold Seller harmless from and against all Losses
and Expenses arising from or relating to holiday pay claims which are asserted
against Seller by Seller Employees who accept employment with Buyer.
(e) Buyer shall assume responsibility and all liabilities and obligations
for, and shall indemnify and hold Seller harmless from and against all Losses
and Expenses arising from or relating to, any severance pay claims (including
any claim in respect of or in any way connected with the termination of
employment with Buyer) which are asserted against Seller by Seller Employees who
accept employment with Buyer other than any "technical" redundancy claims which
arise by virtue of cessation of employment on Closing Date and which claims do
not arise as a consequence of a breach by Buyer or any term or condition of this
Agreement.
(f) After Closing Buyer must (i) pay employees who accept employment with
Buyer all holiday and long service leave benefits due to them after Closing as
and when they fall due; and (ii) indemnify Seller against any liability for
holiday and long service leave due to or accrued by an employee who accepts
employment with Buyer (including, for the avoidance of doubt, any holiday and
long service leave attributable to service by the employee with Seller or any
predecessor of Seller up to Closing) and against all claims in respect of or in
any way connected with the termination of employment with Buyer of any employee.
(g) The Buyer shall assume responsibility and all liabilities and
obligations for, and shall indemnify and hold the Seller harmless from and
against all Losses and Expenses arising from or relating to the application of
the Accident Insurance Act 1998 to employees who accept employment with the
Buyer for the period prior to and after Closing.
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Section 9.4. Post-Closing Remittances. If, after the Closing Date, Seller
------------------------
shall receive any remittance from any account debtors with respect to any
accounts or Receivables included in the Purchased Assets, Seller shall endorse
such remittance to the order of Buyer and forward it to Buyer promptly following
receipt thereof .
Section 9.5. Insurance. If in respect of the obligations and liabilities
---------
(including the Assumed Liabilities) assumed by Buyer under this Agreement Buyer
suffers after Closing any Losses or Expenses ("Insured Liabilities") then:
(a) to the extent Seller receives or recovers after Closing any amounts in
respect of such Insured Liabilities under any policies of insurance maintained
by Seller prior to Closing ("Relevant Policy") Seller shall promptly pay Buyer
the lesser of the amount of the Insured Liability paid by Buyer and the amount
so recovered by Seller, less all costs and expenses (including without
limitation any Taxes or increased premium costs) incurred by the Seller in
connection with such recovery; and
(b) if permitted under the terms of the Relevant Policy and subject to
being indemnified by Buyer for all costs and expenses (including, without
limitation, any increased premium costs) which may result, Seller will take such
reasonable steps as Buyer may request to ensure that Buyer is subrogated to and
enjoys the benefits of the rights of Seller under the Relevant Policies in
relation to the Insured Liability concerned.
ARTICLE 10.
TERMINATION
Section 10.1. Termination. Anything contained in this Agreement to the
-----------
contrary notwithstanding, this Agreement may be terminated at any time prior to
the Closing Date:
(a) by the mutual written consent of Buyer and Seller;
(b) by Buyer or Seller if the Closing shall not have occurred on or before
December 31, 2000 unless: (i) all conditions to Closing have previously been
satisfied or waived, and (ii) the Closing has not then occurred solely because
the date for Closing specified in Section 3.1 has not yet occurred and unless
-----------
such failure to close is due primarily to the breach by the party seeking
termination of its agreements, representations or warranties contained herein;
(c) by Buyer in the event of any breaches in any material respect by
Seller of Seller's agreements, covenants, representations or warranties
contained herein, and which Seller has failed to remedy or cure within twenty
one (21) days after receipt of notice from Buyer requesting that such breaches
be remedied or cured;
(d) by Seller in the event of any breaches in any material respect by
Buyer of Buyer's agreements, covenants, representations or warranties contained
herein, which Buyer has failed to remedy or cure within twenty one (21) days
after receipt of notice from Seller requesting that such breaches be remedied or
cured; or
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<PAGE>
(e) by Buyer or Seller if any court shall have issued a Court Order or if
any Governmental Body shall have issued a decree or ruling or taken any other
action permanently restraining, enjoining or otherwise prohibiting the
consummation of the transactions contemplated hereby.
Section 10.2. Notice of Termination. Any party desiring to terminate this
---------------------
Agreement pursuant to Section 10.1 shall give written notice of such termination
------------
to the other parties to this Agreement.
Section 10.3. Effect of Termination. In the event that this Agreement
---------------------
shall be terminated pursuant to this Article 10, all further obligations of the
parties under this Agreement (other than Sections 14.2, 14.8 and 14.11 of this
------------------- -----
Agreement and Sections 5.2, 5.3 and 5.4 of the Coordinating Agreement) shall be
----------------- ---
terminated without further liability of any party to the other, provided that
nothing herein shall relieve either party from liability for its willful breach
of this Agreement.
ARTICLE 11.
EXCLUSIVITY OF REMEDY
Section 11.1. Indemnification by Seller. Seller's sole and exclusive
-------------------------
indemnification obligations under this Agreement are set forth in the
Coordinating Agreement.
Section 11.2. Indemnification by Buyer. Buyer's sole and exclusive
------------------------
indemnification obligations under this Agreement are set forth in the
Coordinating Agreement.
Section 11.3. Exclusivity of Remedy. Except as provided in Section 10.3
--------------------- ------------
with respect to any breach by either party of its representations, warranties,
covenants, or agreements in this Agreement, the respective Buyer or Seller
Ancillary Agreements, or the ROW Agreements and the transactions contemplated
hereby and thereby, the sole and exclusive remedy of the other party (in
contract, tort, for contribution under Requirements of Law, or otherwise) shall
be the indemnification provided in the Coordinating Agreement. In view of this
exclusivity of remedy provision, Buyer and Seller covenant and agree for
themselves and their respective Affiliates that they will not bring, maintain,
join or prosecute any Action or other proceeding against the other or its
Affiliates for breach of this Agreement except as provided in the Coordinating
Agreement.
ARTICLE 12.
GOODS AND SERVICES TAX
Section 12.1. Going Concern. The parties agree in terms of the GST Act
-------------
that the supply made pursuant to this Agreement is a supply of a taxable
activity as a going concern within Section 11(1)(c) of the GST Act on which GST
----------------
is chargeable at the rate of zero percent.
Section 12.2. Taxable Supply. In the event that it is determined that the
--------------
sale of the Business is not a supply of a taxable activity as a going concern
and GST is payable in respect to the transactions evidenced by this Agreement
then:
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<PAGE>
(a) Buyer shall pay to Seller the amount of the GST and any Default GST
which is so payable in one sum within five (5) Business Days of written demand
being made by Seller;
(b) where such amount is not so paid to Seller, Buyer shall in addition
pay to the Seller interest at the rate of twelve (12) percent per annum on the
amount of GST unpaid from 5 days after demand until payment.
(c) It shall not be a defense to a claim against Buyer for payment to the
Seller of any Default GST that Seller has failed to mitigate Seller's damage by
paying an amount of GST when it fell due under the GST Act.
(d) Seller will deliver a tax invoice for the purposes of the GST Act to
the Buyer as soon as practicable subsequent to recognition that GST is payable.
(e) "Default GST" in this clause means any interest, penalty or other sum
levied against Seller under the GST Act by reason of non-payment of the GST
payable in respect of the supply made under this Agreement, but does not include
any such sum levied against Seller by reason of a default by Seller after
payment of the amounts payable pursuant to this clause to Seller by Buyer.
ARTICLE 13.
SUPERANNUATION
Section 13.1. Offer Of Membership Of Buyer's Fund.
-----------------------------------
(a) Prior to Closing, Buyer must make all arrangements necessary to
provide superannuation benefits for each Existing Member with effect from
Closing on terms and conditions which provide in respect of each Existing Member
who accepts that offer:
(i) in respect of the period after Closing, benefits having a value
at least equal to the value of the benefits which would have been provided
for the Existing Member in respect of that period under the Seller's Scheme
if the Governing Rules of the Seller's Scheme had continued to apply
unaltered in respect of the Existing Member; and
(ii) in the case of an Existing Member who makes the election referred
to in Section 13.1(b)(ii) to accept a transfer of the Existing Member's
-------------------
Accrued Benefit Value to the Buyer's Fund subject to the condition that the
amount of the Existing Member's Accrued Benefit Value which is held in the
Seller's Scheme to the credit of the Existing Member's Account shall not
become payable before the Existing Member ceases to be an employee of
Buyer.
(b) The offer of membership referred to in Section 13.1(a) must include or
---------------
attach a form or forms acceptable to the trustees of Seller's Scheme to be
completed and signed by the Existing Member under which the Existing Member may
elect either:
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<PAGE>
(i) that the trustees of Seller's Scheme (as their only
obligation in respect of the Existing Member after Closing) provide the
benefit payable to the Existing Member under the relevant provision of
Seller's Scheme or
(ii) in lieu of any benefit whatsoever being provided in respect
of the Existing Member under the Seller's Scheme, that the trustees of
Seller's Scheme (as their only obligation in respect of the Existing Member
after Closing) cause his or her Accrued Benefit Value to be transferred to
the Buyer's Fund,
and under which the trustees of Seller's Scheme are discharged from all
liability in respect of the Existing Member upon the provision of that benefit
or the transfer of that amount, as the case may be.
Section 13.2. Information. Seller must use all reasonable endeavours to
-----------
ensure that the trustees of Seller's Scheme provide to Buyer and to the trustee
of the Buyer's Fund any information in respect of the Existing Members
reasonably required by them to give effect to this Section 13 including such
----------
information as the trustee of the Buyer's Fund may require to ascertain its
obligations under Section 9B(2) of the Superannuation Schemes Act 1989.
Section 13.3. Accrued Benefit Values. Seller shall ensure that the amount
----------------------
equivalent to the aggregate amount of Accrued Benefit Values which Existing
Members have elected to have transferred to the Buyer's Fund as provided in
Section 13.1(b)(ii) shall be paid to the trustee of the Buyer's Fund in cash as
-------------------
soon as reasonably practicable after the making of those elections.
Section 13.4. Acknowledgment. Seller and Buyer acknowledge that the
--------------
provisions of this Section 13 are subject to the Governing Rules of the Seller's
----------
Scheme and the Buyer's Fund respectively and the Superannuation Schemes Act 1989
and the provisions of this Section 13 shall take effect only to the extent
----------
permitted by the respective Governing Rules and the Act.
Section 13.5. Expenses. Seller and Buyer shall each bear their own
--------
expenses incurred in relation to the provisions of this Section 13.
----------
ARTICLE 14.
GENERAL PROVISIONS
Section 14.1. Notices. Any notice, request, instruction or other document
-------
to be given hereunder shall be in writing and: (a) delivered personally; (b)
sent by Federal Express or other similarly reputable overnight courier; or (c)
transmitted by facsimile, according to the instructions set forth below. Such
notices shall be sent to the following addresses and/or facsimile numbers and
shall be deemed given: (x) if delivered personally, at the time delivered; (y)
if sent by Federal Express or other similarly reputable overnight courier, at
the time sent, or (z) if transmitted by facsimile, at the time when receipt is
confirmed by the sending facsimile machine.
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<PAGE>
If to Seller, to:
Pacific Dunlop Holdings (N.Z.) Limited
Blenheim Street
Upper Hutt
Wellington
New Zealand
Attention: Managing Director
Facsimile: (04) 527 6610
with a copy to:
Gardner, Carton & Douglas
321 N. Clark Street
Suite 3400
Chicago, Illinois 60610
United States of America
Attention: Mr. Robert J. Wilczek
Facsimile: 312-644-3381
If to Buyer, to:
c/o Exide Corporation
2901 Hubbard Road
Ann Arbor, Michigan 48105
Attention: General Counsel
Facsimile: 734-827-2575
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<PAGE>
with copies to:
Russell McVeagh
Mobil on the Park
157 Lambton Quay
Wellington, New Zealand
Attention: Mr. Guy Lethbridge
Facsimile: 64 4 499 9556
and
Kirkland & Ellis
200 East Randolph Drive
Chicago, Illinois 60601
United States of America
Attention: Mr. Carter W. Emerson, P.C.
Facsimile: 312-861-2200
or to such other address as such party may indicate by a notice delivered to the
other parties hereto in accordance with the provisions of this Section 14.1.
------------
Section 14.2. Confidential Information. Each party agrees that it will
------------------------
treat in confidence all documents, materials and other information which it
shall have obtained regarding any of the other parties during the course of the
negotiations leading to the consummation of the transactions contemplated hereby
(whether obtained before or after the date of this Agreement), the investigation
provided for herein and the preparation of this Agreement and other related
documents ("Confidential Information"), and, in the event the transactions
contemplated hereby shall not be consummated, each party will return to the
other party all copies of nonpublic Confidential Information which have been
furnished in connection therewith. Confidential Information shall not be
communicated to any third Person (other than the parties' respective counsel,
accountants, financial advisors, or environmental consultants). No party shall
use any Confidential Information in any manner whatsoever except solely for the
purpose of evaluating the proposed transaction. Notwithstanding the foregoing,
after the Closing, Buyer may use or disclose any Confidential Information
related to the Business. The Seller shall not at any time after the Closing
disclose any Confidential Information relating to the Business. The obligation
of each party to treat Confidential Information in confidence shall not apply to
any Confidential Information which (i) is or becomes available to such party
from a source other than such party, (ii) is or becomes available to the public
other than as a result of disclosure by such party or its agents, (iii) is
required to be disclosed under applicable law or judicial process, but only to
the extent it must be disclosed, or (iv) as to which such party reasonably deems
disclosure necessary to obtain any of the consents or approvals contemplated
hereby.
Section 14.3. No Public Announcement. Neither Buyer nor Seller shall,
----------------------
without the approval of the other party, issue any press release or other public
announcement concerning the
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<PAGE>
transactions contemplated by this Agreement. Notwithstanding the foregoing,
either party may issue a press release or other public announcement concerning
the transactions contemplated by this Agreement to the extent that such party or
its Affiliates shall be so obligated by law, or to comply with accounting, U.S.
Securities and Exchange Commission, New York Stock Exchange or Australian Stock
Exchange disclosure obligations, provided that such party shall be obligated to
give the other party prior notice of such press release or other public
announcement if prior notice is commercially feasible.
Section 14.4. Entire Agreement; Amendments. This Agreement, the
----------------------------
Coordinating Agreement, the ROW Agreements and the Exhibits and Schedules
referred to herein and therein and the Buyer Ancillary Agreements and the Seller
Ancillary Agreements contain the entire understanding of the parties hereto with
regard to the subject matter contained herein or therein, and supersede all
prior written or oral agreements, understandings or letters of intent between or
among any of the parties hereto. This Agreement shall not be amended, modified
or supplemented except by a written instrument signed by an authorized
representative of each of the parties hereto.
Section 14.5. Successors and Assigns.
----------------------
(a) The rights of each party under this Agreement and the Coordinating
Agreement shall not be assignable without the written consent of the other
party; provided however that no such assignment shall relieve the assigning
party from any of its duties or obligations under this Agreement or the
Coordinating Agreement.
(b) This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their successors and permitted assigns. Nothing in this
Agreement, expressed or implied, is intended or shall be construed to confer
upon any Person other than the parties and successors and assigns permitted by
this Section 14.5 any right, remedy, benefit or claim under or by reason of this
------------
Agreement.
Section 14.6. Interpretation.
--------------
(a) Article titles and headings to sections herein are inserted for
convenience of reference only and are not intended to be part of or to affect
the meaning or interpretation of this Agreement. The Schedules and Exhibits
referred to herein shall be construed with and as an integral part of this
Agreement to the same extent as if they were set forth herein.
(b) This Agreement and the Schedules and Exhibits hereto have been
mutually prepared, negotiated and drafted by each of the parties hereto and
thereto. The parties agree that the terms of this Agreement shall be construed
and interpreted against each party in the same manner and that no such
provisions shall be construed or interpreted more strictly against one party on
the assumption that an instrument is to be construed more strictly against the
party which drafted the agreement.
Section 14.7. Waivers. Any term or provision of this Agreement may be
-------
waived, or the time for its performance may be extended, pursuant to a written
action by the party or parties entitled to the benefit thereof. Any such waiver
shall be validly and sufficiently authorized for purposes of this Agreement if,
as to any party, it is authorized in writing by an authorized
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<PAGE>
representative of such party. Subject to Sections 8.1 and 8.2, the failure of
------------ ---
any party hereto to enforce at any time any provision of this Agreement shall
not be construed to be a waiver of such provision, nor in any way to affect the
validity of this Agreement or any part hereof or the right of any party
thereafter to enforce each and every such provision. No waiver of any breach of
this Agreement shall be held to constitute a waiver of any other or subsequent
breach.
Section 14.8. Expenses. Subject to the provisions of the Coordinating
--------
Agreement or the ROW Agreements, regardless of whether the transactions provided
for in this Agreement are consummated, each party hereto will pay its own costs
and expenses incident to the negotiation, preparation and performance of this
Agreement, including the fees, expenses and disbursements of its counsel,
financial advisors, and accountants.
Section 14.9. Partial Invalidity. Wherever possible, each provision hereof
------------------
shall be interpreted in such manner as to be effective and valid under
applicable law, but in case any one or more of the provisions contained herein
shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect, such provision shall be ineffective to the extent, but only to the
extent, of such invalidity, illegality or unenforceability without invalidating
the remainder of such invalid, illegal or unenforceable provision or provisions
or any other provisions hereof, unless such a construction would be
unreasonable.
Section 14.10. Execution in Counterparts. This Agreement may be executed in
-------------------------
one or more counterparts, each of which shall be considered an original
instrument, and shall become binding when one or more counterparts have been
signed by each of the parties hereto and delivered to each of Seller and Buyer.
Section 14.11. Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with the internal laws of the State of Illinois, USA,
without giving effect to any choice of laws provisions which may direct the
application of the laws of another jurisdiction.
Section 14.12. Further Assurances and Cooperation
----------------------------------
(a) From and after the date of this Agreement, upon the request of either
Seller or Buyer or any of their respective Affiliates, the other party and its
Affiliates shall execute and deliver such instruments, documents or other
writings as may be reasonably necessary or desirable to confirm and carry out
and to effectuate fully the intent and purposes of this Agreement.
(b) After the Closing, on reasonable advance notice Buyer shall provide
Seller, Seller's Affiliates, and any advisor retained by Seller or its
Affiliates with reasonable access to the management and properties, and books,
records, and documents (which were in existence on the Closing) of the Seller
relating to the Purchased Assets or the Business during normal business hours
and in a manner which does not unreasonably interfere with the Business for any
reasonable purpose including, but not limited to, the fulfillment of Seller's
responsibilities under 4(1)(a) of the Coordinating Agreement, the enforcement of
Seller's and its Affiliates' rights under Article 2 of the Coordinating
Agreement and clause (iii) of 4.2(a) of the Coordinating Agreement. As
reasonably necessary, Seller and Seller's Affiliates and any advisor retained by
Seller or its Affiliates shall be entitled to make copies of such books, records
and documents at
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<PAGE>
their expense. If Buyer shall desire at any time to dispose of any of such
books, records or documents, Buyer shall, prior to such disposition, give Seller
a reasonable opportunity, to segregate and remove such books and records as
Seller may select. The obligations of Buyer pursuant to this Section 14.12(b)
shall survive the Closing indefinitely.
Section 14.13. No Reliance. The provisions of this Agreement are intended
------------
for the sole benefit of Buyer and Seller and shall not inure to the benefit of
any other Person, other than successors and permitted assigns of Buyer and
Seller, whether as third party or otherwise.
Section 14.14. Disclosure Schedules. The Disclosure Schedules are hereby
--------------------
incorporated by reference into and made a part of this Agreement. The inclusion
of any item in the Disclosure Schedules is intended to qualify the
representations and warranties contained in this Agreement, and to set forth
other information required by this Agreement. Disclosure of information in any
one of the Disclosure Schedules shall be deemed to be a disclosure with respect
to every section of this Agreement, notwithstanding the presence or absence of a
cross-reference to Disclosure Schedules under other Sections of this Agreement
if the meaning of such disclosure in the context of such other section is
reasonably ascertainable. Disclosure of information in the Disclosure Schedules
shall not be deemed to be an admission by Seller that such information is
material for purposes of this Agreement. Summaries or extracts of any documents,
instruments, or other agreements contained in the Disclosure Schedules are for
the convenience of reference only and are qualified in their entirety by
reference to the applicable document, instrument or other agreement so
summarized or extracted from.
[This remainder of page intentionally left blank]
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed the day and year first above written.
SELLER:
SIGNED on behalf of PACIFIC DUNLOP
HOLDINGS (NZ) LIMITED by its duly
appointed attorney:
__________________________________
Name: Martin M. Hudson
Title: Attorney in Fact
BUYER:
SIGNED on behalf of EXIDE NEW
ZEALAND LIMITED by its Director duly
authorized:
Signature:________________________
Name:_____________________________
Title:____________________________
-42-
<PAGE>
EXHIBIT A
A. The PACIFIC DUNLOP (NZ) SUPERANNUATION SCHEME (called "the Scheme") was
constituted by a Trust Deed ("the Original Trust Deed") dated the 1st day
of November 1989 (the "Date of Establishment") to provide retirement and
other benefits for Employees invited to become members of the Scheme.
B. Since the Date of Establishment the Original Trust Deed has been amended
and the Scheme is presently governed by the consolidating deed dated 30
November 1994 and the amending Deeds dated 13 August 1996 and 16 November
1999 (together called "the Trust Deed") and in respect of a member to whom
a Deed of Adherence applies by the Deed of Adherence applicable to the
Member.
C. The Scheme is a registered superannuation scheme under the Superannuation
Schemes Act 1989.
D. GNB was admitted as an Employer in respect of Employees employed by it, by
way of a Deed of Adherence executed on 31 May 1990 as amended by deed dated
20 November 1996 (together called the "existing GNB Deed of Adherence').
E. The Scheme as it relates to employees of GNB is governed by the Trust Deed
as modified in respect of such employees by the existing GNB Deed of
Adherence.
<PAGE>
EXHIBIT B
ALLOCATION OF PURCHASE PRICE AND ASSUMED LIABILITIES
(US$)
Purchase Price $ 13,790,000
Assumed Liabilities $ 2,495,000
----------
Total $ 16,285,000
==========
ALLOCATION TO PURCHASED ASSETS
-----------------------------------------------------------------------------
Real Property 2,372,310
-----------------------------------------------------------------------------
Machinery & Equipment 7,801,690
-----------------------------------------------------------------------------
Inventory 3,849,627
-----------------------------------------------------------------------------
Receivables 2,256,055
-----------------------------------------------------------------------------
Other Assets 5,318
----------
-----------------------------------------------------------------------------
Total 16,285,000
==========
-----------------------------------------------------------------------------
<PAGE>
EXHIBIT C
REPCO MERCHANTS
EXIDE NEW ZEALAND LIMITED
SUPPLY AGREEMENT
<PAGE>
THIS SUPPLY AGREEMENT is made on between the following parties:
1 REPCO MERCHANTS, a division of PACIFIC DUNLOP HOLDINGS (N.Z) LIMITED
WN54807
of Wellington (Buyer)
2 EXIDE NEW ZEALAND LIMITED
WN1040136
of Wellington (Supplier)
RECITALS
A The Supplier carries on the business of the manufacture and sale of the
Products.
B. The Buyer wishes to purchase from the Supplier and the Supplier wishes to
supply to the Buyer the Products in accordance with the terms and
conditions set out in this agreement.
THE PARTIES AGREE in consideration of, among other things, the mutual promises
contained in this agreement:
1 DEFINITIONS AND INTERPRETATION
1.1. Definitions
In this agreement:
Business Day means a day on which registered banks are open for
business in Wellington, except a Saturday, Sunday or public holiday;
Dollars, NZ$ and $ means the lawful currency of New Zealand;
Event of Termination means any event specified in clause 8.1;
Force Majeure means any act of God, war, governmental restraint,
industrial dispute or other event not within the control of the parties
acting reasonably;
Loss means any damage, loss, liability or expense (whether direct or
indirect, consequential or incidental);
Price Schedule means the price schedule set out as Schedule 2;
Products means the products set out in item 1 of Schedule 1;
Merchandising Rebate means the merchandising rebate described in item
6 of Schedule 1;
Term means the period specified in item 2 of Schedule 1;
<PAGE>
Volume Rebate means the volume rebate described in item 5 of Schedule 1;
Year means each successive 12 month period during the Term, the first
Year commencing on the first day of the Term.
1.2. Interpretation
In this agreement, headings and boldings are for convenience only and do
not affect the interpretation of this agreement and, unless the context
otherwise requires:
(a) words importing the singular include the plural and vice versa;
(b) words importing a gender include any gender;
(c) other parts of speech and grammatical forms of a word or phrase
defined in this agreement have a corresponding meaning;
(d) a reference to a part, clause, party, annexure, exhibit or schedule is
a reference to a part and clause of, and a party, annexure, exhibit
and schedule to, this agreement and a reference to this agreement
includes any annexure, exhibit and schedule;
(e) a reference to a statute, regulation, proclamation, ordinance or by-
law includes all statutes, regulations, proclamations, ordinances or
by-laws amending, consolidating or replacing it, and a reference to a
statute includes all regulations, proclamations, ordinances and by-
laws issued under that statute;
(f) a reference to a document includes all amendments or supplements to,
or replacements or novations of, that document;
(g) a reference to a party to a document includes that party's successors
and permitted assigns;
(h) no provision of this agreement will be construed adversely to a party
solely on the ground that the party was responsible for the
preparation of this agreement or that provision; and
(i) a reference to liquidation includes official management, appointment
of an administrator, compromise, arrangement, merger, amalgamation,
reconstruction, winding-up, dissolution, assignment for the benefit of
creditors, scheme, composition or arrangement with creditors,
insolvency, bankruptcy, or any similar procedure.
1.3. Business Day
Where the day on or by which something must be done is not a Business Day,
that thing must be done on or by the next Business Day.
2
<PAGE>
2 SUPPLY OF PRODUCTS
2.1. Sale of Products
The Supplier will sell the Products to the Buyer and the Buyer will
purchase the Products from the Supplier during the Term at the price for
the Products calculated in accordance with the Price Schedule and item 3 of
Schedule 1.
2.2. Exclusive purchase commitment
Subject to clauses 2.3, 2.4 and 9.2, the Buyer agrees that during each Year
it will source all of its requirements for the Products from the Supplier
and will not purchase the Products from any person other than the Supplier
up to the number of units of Products that the Buyer purchased from GNB
Technologies during the financial year ended on 30 June 1998, namely
120,423 units.
2.3. Adjusted exclusivity commitment
(a) In the event that the price for the Products set out in the Price
Schedule is increased in accordance with the provisions of this
agreement by an amount which is greater than would be required to do
no more than adjust the relevant prices to reflect any upward movement
in the Consumer Price Index, then the Supplier and the Buyer agree
that the obligations of the Buyer under clause 2.2 will be adjusted so
that the Buyer need only source all of its requirements for the
Products from the Supplier up to the number of units which is 90% of
the number of units of Product that the Buyer purchased from the
Supplier during the financial year ended on 30 June 1998.
(b) The Supplier and the Buyer agree that the Buyer will be entitled to
purchase any product comprised within the Products from a person other
than the Supplier in the event that and for so long as the Supplier is
unable for any reason to supply the relevant product to the Buyer in
the quantities, at the times or to the location reasonably required by
the Buyer.
2.4. Exception
The Buyer will not be bound by clause 2.2 to the extent that, for any
reason, the Supplier is not able to supply the Buyer's orders for Products
on the terms of this agreement.
3
<PAGE>
3 ORDERS AND DELIVERY
3.1. Ordering
All orders for the Products by the Buyer must be in writing and be sent by
either post, edi or facsimile to the Supplier. An order for Products placed
by the Buyer must specify the required delivery date and will be deemed to
be accepted by the Supplier:
(a) 3 Business Days after the date the Supplier received the order unless
within that period the Supplier sends written notification that it
does not accept the order, which it may do only for reasons of Force
Majeure;
(b) by delivery of some or all of the Products ordered; or
(c) by the Supplier sending written notification of the Supplier's
acceptance of the order.
3.2. Delivery
Subject to clause 9, the Supplier must deliver Products ordered by the
Buyer to any address nominated by the Buyer by the date specified in the
order.
3.3. Shortages
(a) The Buyer must check the quantity of the Products delivered against
the ordered quantity.
(b) The Supplier will not be responsible to make good any shortage unless
the Buyer gives the Supplier notice of the shortage within 7 Business
Days of delivery.
3.4. Damage to Products
(a) The Buyer must notify the Supplier in writing promptly after it forms
the opinion that any Products delivered by the Supplier do the Buyer
do not accord with the representations and warranties given by the
Supplier under clause 5.2(c).
(b) If the Buyer gives the Supplier notice under clause 3.4(a) it must:
(i) as far as reasonably practicable, preserve the Products the
subject of the notice in the state in which they were delivered
for 10 Business Days after it gives the Supplier the notice; and
(ii) during that period, allow the Supplier access to the Buyer's
premises to inspect the Products the subject of the notice.
(c) If the parties agree that the Products the subject of the notice do
not accord with the representations and warranties given by the
Supplier under clause 5.2(c), then
4
<PAGE>
the Supplier must, at the option of the Buyer, accept the return of
and replace or accept the return of and give a credit for the Products
the subject of the notice.
(d) The parties agree that nothing in this clause 3.4 limits or must be
construed as limiting the operation of clause 5 and that the rights of
the Buyer under this clause 3 are additional to any other rights the
Buyer may have as a purchaser of the Products.
3.5. Title and risk
(a) Title to the Products passes to the Buyer upon payment in full of the
price for the Products.
(b) Notwithstanding clause 3.5(a), risk of Loss in respect of the Products
passes to the Buyer upon delivery of the Products to the Buyer by the
Supplier.
4 PAYMENT AND REBATES
4.1. Payment for Products
The Buyer must pay the Supplier for Products delivered by the Supplier to
the Buyer within the number of days set out in item 4 of Schedule 1 from
the date the Supplier's invoice is received by the Buyer.
4.2. Procedure for price adjustment
The Supplier and the Buyer agree that the prices for the Products set out
in the Price Schedule may not be varied during the Term except in
accordance with the procedure set out in item 3 of Schedule 1.
4.3. Volume Rebate
The Supplier and the Buyer agree that the Buyer will be entitled to the
Volume Rebate during the Term.
4.4. Merchandising Rebate
The Supplier and the Buyer agree that the Buyer will be entitled to the
Merchandising Rebate during the Term.
<PAGE>
5 SUPPLIER'S OBLIGATIONS AND WARRANTIES
5.1. Obligations
(a) The Supplier must not supply any Products to the Buyer which do not
comply with the representations and warranties given under clause 5.2
in relation to the Products and must immediately notify the Buyer in
writing if it becomes aware of any defect in any of the Products
supplied to the Buyer under this agreement;
(b) The Supplier agrees to provide free of charge replacement on any
Products that are within the period of the manufacturer's warranty
upon receipt of a notice of defect.
5.2. Warranties
The Supplier expressly represents and warrants to the Buyer that:
(a) subject to clause 9, it will supply the Buyer with such quantities of
Product as it requests from time to time;
(b) all Products supplied to the Buyer under this agreement will at the
time of delivery be free from any charge or encumbrance in favour of
any third party; and
(c) all Products supplied to the Buyer under this agreement will at the
time of delivery comply with any stated specifications, quality
standards, requirements of law and any express warranty offered in
relation to the them by the Supplier or a manufacturer, be of
merchantable quality and, without limitation, fit for the purpose for
which they were manufactured.
6 INSURANCE
(a) The Supplier must effect and maintain insurance coverage which, in the
opinion of the Buyer, is suitable and sufficient to provide the
Supplier with appropriate cover against:
(i) the risk of legal liability to any person arising in connection
with the Products; and
(ii) loss of or damage to the Products caused by all risks until the
date when risk in the Products passes from the Supplier to the
Buyer under this agreement.
(b) The Supplier must provide evidence to the Buyer of the currency of all
insurances required under clause 6(a) as reasonably requested from
time to time by the Buyer.
7 INDEMNITIES
6
<PAGE>
7.1. Supplier's Indemnity
The Supplier indemnifies the Buyer in respect of any Loss arising from any
breach by the Supplier of this agreement.
7.2. Buyer's Indemnity
The Buyer indemnifies the Supplier in respect of any Loss arising from any
breach by the Buyer of this agreement.
8 TERMINATION
8.1. Events of Termination
An Event of Termination occurs if:
(a) there is a failure by either party to perform or observe any
undertaking or obligation under this agreement and such party does not
rectify the failure (where the failure is rectifiable) within 14 days,
or a longer period determined by the affected party, after receipt by
the offending party of a notice from the affected party specifying the
failure;
(b) a receiver, receiver and manager, administrator, trustee, mortgagee or
similar official is appointed over any of the assets or undertakings
of either party, an application or order is made for the liquidation
of either party or any steps are taken to pass a resolution for the
liquidation of either party; or
(c) either party enters or resolves to enter into any arrangement,
composition or compromise with, or assignment for the benefit of, its
creditors or any class of them.
8.2. Effect of Event of Termination
If an Event of Termination occurs, the affected party may (without
affecting the accrued rights and obligations of the parties as at the date
of termination) terminate this agreement immediately by giving written
notice to the offending party and recover damages.
8.3. Continuing terms and conditions
If this agreement is terminated, the terms and conditions of this agreement
will continue to be binding upon the parties in connection with all
transactions relating to the Products entered into between the Buyer and
Supplier prior to termination and all outstanding orders and deliveries
will be satisfied.
9 FORCE MAJEURE
9.1. Suspension of obligations
7
<PAGE>
Subject to clause 9.3, where an event of Force Majeure prevents or delays
either party from performing any obligation under this agreement, that
obligation is suspended for so long as the event of Force Majeure
subsists. Both parties must take all reasonable steps to end such event of
Force Majeure as soon as possible or at least to minimise its negative
effects.
9.2. Alternative supply
For so long as an event of Force Majeure subsists, the Buyer may acquire
substitutes from other sources for such of the Products as the Supplier is
unable to supply.
9.3. Continuation of Force Majeure
If the event of Force Majeure referred to in clause 9.1 continues for a
period of 3 months or more, either party may (without affecting the
accrued rights and obligations of the parties as at the date of
termination) terminate this agreement immediately by written notice to the
other.
10 GENERAL
10.1. Notices
A notice provided for in this agreement will be deemed to be sufficiently
given, delivered or transmitted when delivered by hand, sent by certified
or registered pre-paid mail or transmitted by facsimile directed to the
intended party at its usual address or facsimile number (whichever is
relevant) or the address or facsimile number (whichever is relevant) as
specified in writing by the intended party.
10.2. Governing law and jurisdiction
This agreement is governed by the laws of New Zealand.
10.3. Prohibition and enforceability
In the event that one or more provisions of this agreement is at any time
found to be invalid or otherwise rendered unenforceable, such provision or
provisions will be severable from this agreement, so that the validity or
enforceability of the remaining provisions of this agreement is not
affected.
8
<PAGE>
10.4. Waiver
(a) Waiver of any right arising from a breach of this agreement or upon
the occurrence of an Event of Termination must be in writing and
executed by the party granting the waiver.
(b) A failure or delay in exercise of a right arising from a breach of
this agreement or the occurrence of an Event of Termination does not
result in a waiver of that right.
10.5. Variation
A variation of any term of this agreement must be in writing and executed
by the parties.
10.6. Cumulative rights
The rights, powers, authorities, discretions and remedies arising out of
or under this agreement are cumulative and do not exclude any other right,
power, authority, discretion or remedy of the parties.
10.7. Assignment
(a) The Supplier or the Buyer may assign its rights and obligations under
this agreement to a purchaser of its business without the prior
written consent of the other party.
(b) The Buyer or Supplier may not otherwise assign any of its rights or
obligations under this agreement without the prior written consent
of the other party, which consent must not be unreasonably withheld.
10.8. Entire agreement
This agreement supersedes all previous agreements in respect of its
subject matter and embodies the entire agreement between the parties.
Executed as an agreement:
SIGNED for and on behalf of )
REPCO MERCHANTS, )
a division of PACIFIC )
DUNLOP HOLDINGS (N.Z) )
LIMITED by )
----------------------------------
Name (please print)
9
<PAGE>
SIGNED for and on behalf of )
EXIDE NEW ZEALAND LIMITED )
by )
--------------------------
Name (please print)
10
<PAGE>
SCHEDULE 1 - MISCELLANEOUS
Item 1 - The Products
Automotive batteries branded "Champion", "Lucas" or other brands as
nominated by the Buyer.
Item 2 - Term
The period commencing on the date of this agreement and ending 31
December 2001.
Item 3 - Price adjustment
The prices for the Products are set out in the Price Schedule and these are
fixed for the term of this agreement.
Item 4 - Credit period
61 days
Item 5 - Volume Rebate
Nil
Item 6 - Merchandising Rebate
The Supplier undertakes to bear part of the reasonable costs of advertising
and promotional activities undertaken by the Buyer in respect of
Champion/Lucas branded batteries.
The Supplier agrees to pay the Buyer an amount equal to 1% of the invoiced
cost to the Buyer of batteries supplied by the Supplier during each Year of
the Term.
The Supplier will pay the rebate to the Buyer in accordance with the
established practice of GNB Technologies and the Buyer.
Arrangements for delivery of product/marketing, support/training etc. will
reflect actual practice as at the date of this agreement.
11
<PAGE>
EXHIBIT D
DEED OF ACKNOWLEDGEMENT
AND ACCEPTANCE BY EMPLOYEE
I, ________________________________________ acknowledge in favour of Exide New
Zealand Limited and Pacific Dunlop Holdings (N.Z.) Limited that:
1. I understand I am being offered employment by Exide New Zealand Limited on
substantially the same terms and conditions that I presently have with Pacific
Dunlop Holdings (N.Z.) Limited other than changes necessary to represent the
fact that Exide New Zealand Limited will be my new employer. I understand that
Exide New Zealand Limited will recognize my period of service with Pacific
Dunlop Holdings (N.Z.) Limited for the purposes of all service related
entitlements including redundancy compensation. I understand that my entitlement
to annual leave, leave in lieu, accrued sick leave, retirement leave, long
service leave and all other accrued entitlements that I am entitled to from
Pacific Dunlop Holdings (N.Z.) Limited, will be rolled over and recognized in
full by Exide New Zealand Limited upon commencement of employment with Exide New
Zealand Limited.
2. I accept employment with Exide New Zealand Limited on the terms and
conditions set out in paragraph 1 commencing at a date to be advised to me by
Pacific Dunlop Holdings (N.Z.) Limited.
3. In consideration of my receiving employment with Exide New Zealand Limited
including recognition of my service with Pacific Dunlop Holdings (N.Z.) Limited
and accrued entitlements, and the assistance of Pacific Dunlop Holdings (N.Z.)
Limited in causing that offer to be made, I acknowledge and agree to waive: any
entitlement to redundancy compensation, any other benefits payable or available
under termination of my employment, and any notice of redundancy from or in
relation to Pacific Dunlop Holdings (N.Z.) Limited arising out of my employment,
or termination of my employment with Pacific Dunlop Holdings (N.Z.) Limited.
4. Further, I agree that this acknowledgement and waiver constitutes a
promise in favour of Pacific Dunlop Holdings (N.Z.) Limited and that it may rely
on it accordingly.
5. I acknowledge that I have taken such independent legal and other advice as I
consider necessary in respect of this matter.
DATED this ___ day of __________________, 2000.
<PAGE>
------------------------ ------------------------ ------------------------
Signed by Signed for and on behalf Signed for and on behalf
of Pacific Dunlop Holdings of Exide Limited by New
(N.Z.) two of its directors Zealand Limited by its
attorney (or two
directors)
Witnessed by .................... Witnessed by
------------------------ .................... ------------------------
Signature Witness Signature Witness
------------------------ ------------------------
Occupation Occupation
------------------------ ------------------------
Address Address
2
<PAGE>
REPCO CONTRACT PRICING
Effective 1.4.00
<TABLE>
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------------
Part No. Description Base Price Royalty Nett Repco Nett Repco
Price (3% warranty, 2.50% GNB $9.90 Invoice Price
1% promo) Price Adder With 5% warranty
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Standard
------------------------------------------------------------------------------------------------------------------------------------
125ST MOTOGARD STANDARD BATTERY $26.64 $27.71 $0.69 $28.40 $38.30 $40.21
------------------------------------------------------------------------------------------------------------------------------------
126ST MOTOGARD STANDARD BATTERY $26.64 $27.71 $0.69 $28.40 $38.30 $40.21
------------------------------------------------------------------------------------------------------------------------------------
127ST MOTOGARD STANDARD BATTERY $29.53 $30.71 $0.77 $31.48 $41.38 $43.45
------------------------------------------------------------------------------------------------------------------------------------
128ST MOTOGARD STANDARD BATTERY $29.53 $30.71 $0.77 $31.48 $41.38 $43.45
------------------------------------------------------------------------------------------------------------------------------------
N230LP MOTOGARD STANDARD BATTERY $27.69 $28.60 $0.72 $29.52 $39.42 $41.39
------------------------------------------------------------------------------------------------------------------------------------
N230P MOTOGARD STANDARD BATTERY $27.69 $28.80 $0.72 $29.52 $39.42 $41.39
------------------------------------------------------------------------------------------------------------------------------------
Heavy Duty
------------------------------------------------------------------------------------------------------------------------------------
N310 AUTOMOTIVE BATTERY $30.58 $31.80 $0.80 $32.60 $42.50 $44.62
------------------------------------------------------------------------------------------------------------------------------------
N310L AUTOMOTIVE BATTERY $30.58 $31.80 $0.80 $32.60 $42.50 $44.62
------------------------------------------------------------------------------------------------------------------------------------
N310LP AUTOMOTIVE BATTERY $30.58 $31.80 $0.80 $32.60 $42.50 $44.62
------------------------------------------------------------------------------------------------------------------------------------
N310P AUTOMOTIVE BATTERY $30.58 $31.80 $0.80 $32.60 $42.50 $44.62
------------------------------------------------------------------------------------------------------------------------------------
125HD AUTOMOTIVE BATTERY $30.32 $31.53 $0.79 $32.32 $42.22 $44.33
------------------------------------------------------------------------------------------------------------------------------------
125HDP AUTOMOTIVE BATTERY $30.32 $31.53 $0.79 $32.32 $42.22 $44.33
------------------------------------------------------------------------------------------------------------------------------------
126HD AUTOMOTIVE BATTERY $30.32 $31.53 $0.79 $32.32 $42.22 $44.33
------------------------------------------------------------------------------------------------------------------------------------
126HDP AUTOMOTIVE BATTERY $30.32 $31.53 $0.79 $32.32 $42.22 $44.33
------------------------------------------------------------------------------------------------------------------------------------
127HD AUTOMOTIVE BATTERY $32.67 $33.98 $0.85 $34.83 $44.73 $46.96
------------------------------------------------------------------------------------------------------------------------------------
128HD AUTOMOTIVE BATTERY $32.67 $33.98 $0.85 $34.83 $44.73 $46.96
------------------------------------------------------------------------------------------------------------------------------------
DIN44 AUTOMOTIVE BATTERY $48.80 $48.40 $1.21 $49.68 $59.58 $62.55
------------------------------------------------------------------------------------------------------------------------------------
DIN55 AUTOMOTIVE BATTERY $50.79 $52.82 $1.32 $54.14 $64.04 $67.24
------------------------------------------------------------------------------------------------------------------------------------
DIN55F AUTOMOTIVE BATTERY $50.79 $52.82 $1.32 $54.14 $64.04 $67.24
------------------------------------------------------------------------------------------------------------------------------------
DIN55L AUTOMOTIVE BATTERY $50.79 $52.82 $1.32 $54.14 $84.04 $67.24
------------------------------------------------------------------------------------------------------------------------------------
DIN66 AUTOMOTIVE BATTERY $64.96 $67.56 $1.69 $69.25 $79.15 $83.10
------------------------------------------------------------------------------------------------------------------------------------
N03 6 VOLT BATTERY $46.34 $48.19 $1.20 $49.40 $59.30 $62.26
------------------------------------------------------------------------------------------------------------------------------------
U1-2 M/CYCLE & GARDEN TRACTOR BATTERY $37.87 $39.38 $0.98 $40.37 $50.27 $52.78
------------------------------------------------------------------------------------------------------------------------------------
U1R-2 M/CYCLE & GARDEN TRACTOR BATTERY $37.87 $39.38 $0.98 $40.37 $50.27 $52.78
------------------------------------------------------------------------------------------------------------------------------------
Premium
</TABLE>
<PAGE>
<TABLE>
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
125PR AUTOMOTIVE BATTERY $ 35.30 $ 36.71 $ 0.92 $ 37.83 $ 47.53 $ 49.91
------------------------------------------------------------------------------------------------------------------------------------
126PR AUTOMOTIVE BATTERY $ 35.30 $ 36.71 $ 0.92 $ 37.83 $ 47.53 $ 49.91
------------------------------------------------------------------------------------------------------------------------------------
127PR AUTOMOTIVE BATTERY $ 38.45 $ 39.99 $ 1.00 $ 40.99 $ 50.89 $ 53.43
------------------------------------------------------------------------------------------------------------------------------------
127PRF AUTOMOTIVE BATTERY $ 38.45 $ 39.99 $ 1.00 $ 40.99 $ 50.89 $ 53.43
------------------------------------------------------------------------------------------------------------------------------------
128PR AUTOMOTIVE BATTERY $ 38.45 $ 39.99 $ 1.00 $ 40.99 $ 50.89 $ 53.43
------------------------------------------------------------------------------------------------------------------------------------
128PRF AUTOMOTIVE BATTERY $ 38.45 $ 39.99 $ 1.00 $ 40.99 $ 50.89 $ 53.43
------------------------------------------------------------------------------------------------------------------------------------
BXT58R AUTOMOTIVE BATTERY $ 89.54 $ 93.12 $ 2.33 $ 95.45 $105.35 $110.62
------------------------------------------------------------------------------------------------------------------------------------
LM430C AUTOMOTIVE BATTERY $ 42.70 $ 44.50 $ 1.11 $ 45.61 $ 55.51 $ 58.29
------------------------------------------------------------------------------------------------------------------------------------
NS60LP AUTOMOTIVE BATTERY $ 41.84 $ 43.51 $ 1.09 $ 44.60 $ 54.50 $ 57.23
------------------------------------------------------------------------------------------------------------------------------------
NS60P AUTOMOTIVE BATTERY $ 41.84 $ 43.51 $ 1.09 $ 44.60 $ 54.50 $ 57.23
------------------------------------------------------------------------------------------------------------------------------------
N50Z AUTOMOTIVE BATTERY $ 48.16 $ 50.09 $ 1.25 $ 51.34 $ 61.24 $ 64.30
------------------------------------------------------------------------------------------------------------------------------------
N50ZL AUTOMOTIVE BATTERY $ 48.16 $ 50.09 $ 1.25 $ 51.34 $ 61.24 $ 64.30
------------------------------------------------------------------------------------------------------------------------------------
Commercial
------------------------------------------------------------------------------------------------------------------------------------
NS70 AUTOMOTIVE BATTERY $ 52.94 $ 55.06 $ 1.38 $ 56.43 $ 66.33 $ 69.65
------------------------------------------------------------------------------------------------------------------------------------
NS70L AUTOMOTIVE BATTERY $ 52.94 $ 55.06 $ 1.38 $ 56.43 $ 66.33 $ 69.65
------------------------------------------------------------------------------------------------------------------------------------
DIN88 AUTOMOTIVE BATTERY $ 80.32 $ 83.53 $ 2.08 $ 85.62 $ 95.52 $100.30
------------------------------------------------------------------------------------------------------------------------------------
N100 AUTOMOTIVE BATTERY $ 81.76 $ 85.03 $ 2.13 $ 87.16 $ 97.06 $101.91
------------------------------------------------------------------------------------------------------------------------------------
N120 AUTOMOTIVE BATTERY $ 96.73 $100.80 $ 2.51 $103.11 $113.01 $118.66
------------------------------------------------------------------------------------------------------------------------------------
N150 AUTOMOTIVE BATTERY $108.54 $112.88 $ 2.82 $115.70 $125.60 $131.88
------------------------------------------------------------------------------------------------------------------------------------
N200 AUTOMOTIVE BATTERY $141.61 $147.27 $ 3.68 $150.96 $160.86 $188.90
------------------------------------------------------------------------------------------------------------------------------------
N70ZZ AUTOMOTIVE BATTERY $ 57.82 $ 59.82 $ 1.50 $ 61.42 $ 71.32 $ 74.89
------------------------------------------------------------------------------------------------------------------------------------
N70ZZL AUTOMOTIVE BATTERY $ 57.62 $ 59.92 $ 1.50 $ 61.42 $ 71.32 $ 74.89
------------------------------------------------------------------------------------------------------------------------------------
94B AUTOMOTIVE BATTERY $119.31 $124.08 $ 3.10 $127.18 $137.08 $143.94
------------------------------------------------------------------------------------------------------------------------------------
86AX AUTOMOTIVE BATTERY $ 73.37 $ 76.30 $ 1.91 $ 78.21 $ 88.11 $ 92.52
------------------------------------------------------------------------------------------------------------------------------------
86BX AUTOMOTIVE BATTERY $ 73.37 $ 76.30 $ 1.91 $ 78.21 $ 88.11 $ 92.52
------------------------------------------------------------------------------------------------------------------------------------
89A AUTOMOTIVE BATTERY $ 91.22 $ 94.87 $ 2.37 $ 97.24 $107.14 $122.50
------------------------------------------------------------------------------------------------------------------------------------
89B AUTOMOTIVE BATTERY $ 91.22 $ 94.87 $ 2.37 $ 97.24 $107.14 $112.50
------------------------------------------------------------------------------------------------------------------------------------
12B AUTOMOTIVE BATTERY $ 40.29 $ 41.90 $ 1.05 $ 42.95 $ 52.85 $ 55.49
------------------------------------------------------------------------------------------------------------------------------------
26B AUTOMOTIVE BATTERY $ 58.93 $ 61.29 $ 1.53 $ 62.82 $ 72.72 $ 76.36
------------------------------------------------------------------------------------------------------------------------------------
115 AUTOMOTIVE BATTERY $ 45.81 $ 47.64 $ 1.19 $ 48.83 $ 58.73 $ 61.67
------------------------------------------------------------------------------------------------------------------------------------
GS3478N FOUR WHEEL TRUCK BATTERY $104.11 $108.27 $ 2.71 $110.98 $120.88 $126.93
------------------------------------------------------------------------------------------------------------------------------------
PC31925A COMMERICAL TRUCK BATTERY $146.87 $152.74 $ 3.82 $156.58 $166.46 $174.79
------------------------------------------------------------------------------------------------------------------------------------
Marine
------------------------------------------------------------------------------------------------------------------------------------
M4 MARINE STARTING BATTERY $41.18 $ 42.83 $ 1.07 $ 43.90 $ 53.80 $ 56.49
------------------------------------------------------------------------------------------------------------------------------------
M5 MARINE STARTING BATTERY $ 58.2 $58.52 $ 1.46 $ 59.88 $ 89.88 $ 73.38
------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C> <C> <C> <C>
------------------------------------------------------------------------------------------------------------------------------------
M6 MARINE STARTING BATTERY $ 79.63 $ 82.82 $ 20.7 $ 84.89 $ 94.79 $ 99.52
------------------ ------------------------------------------- ---------- ----------- ---------- ----------- ----------- -----------
M9 MARINE STARTING BATTERY $ 146.87 $ 152.74 $ 3.82 $ 156.56 $ 166.46 $ 174.79
------------------------------------------------------------------------------------------------------------------------------------
Trojan
------------------------------------------------------------------------------------------------------------------------------------
5SHP TROJAN BATTERY $ 371.74 $ 366.61 $ 9.67 $ 396.27 $ 406.17 $ 426.48
------------------ ------------------------------------------- ---------- ----------- ---------- ----------- ----------- -----------
DC22F DEEP CYCLE BATTERY $ 130.07 $ 135.27 $ 3.38 $ 138.65 $ 145.55 $ 155.98
------------------ ------------------------------------------- ---------- ----------- ---------- ----------- ----------- -----------
DC9R TROJAN BATTERY $ 109.15 $ 113.52 $ 2.84 $ 116.35 $ 126.25 $ 132.57
------------------ ------------------------------------------- ---------- ----------- ---------- ----------- ----------- -----------
J185 TROJAN BATTERY $ 260.62 $ 271.04 $ 6.76 $ 277.82 $ 287.72 $ 302.11
------------------ ------------------------------------------- ---------- ----------- ---------- ----------- ----------- -----------
J250 TROJAN BATTERY $ 271.96 $ 282.84 $ 7.07 $ 289.91 $ 299.81 $ 314.80
------------------ ------------------------------------------- ---------- ----------- ---------- ----------- ----------- -----------
J305 TROJAN BATTERY $ 262.89 $ 273.41 $ 6.84 $ 280.24 $ 290.14 $ 304.65
------------------ ------------------------------------------- ---------- ----------- ---------- ----------- ----------- -----------
L16 TROJAN BATTERY $ 296.90 $ 308.78 $ 7.72 $ 316.50 $ 326.40 $ 342.72
------------------ ------------------------------------------- ---------- ----------- ---------- ----------- ----------- -----------
SCS150 TROJAN BATTERY $ 125.60 $ 130.62 $ 3.27 $ 133.89 $ 143.79 $ 150.98
------------------ ------------------------------------------- ---------- ----------- ---------- ----------- ----------- -----------
SCS225 TROJAN BATTERY $ 160.85 $ 167.28 $ 4.16 $ 171.47 $ 181.37 $ 190.43
------------------ ------------------------------------------- ---------- ----------- ---------- ----------- ----------- -----------
SCS450 TROJAN BATTERY $ 344.50 $ 358.28 $ 8.96 $ 367.24 $ 377.14 $ 305.99
------------------ ------------------------------------------- ---------- ----------- ---------- ----------- ----------- -----------
T105 GOLF CAR BATTERY $ 114.87 $ 119.46 $ 2.99 $ 122.45 $ 132.35 $ 130.97
------------------ ------------------------------------------- ---------- ----------- ---------- ----------- ----------- -----------
T125 TROJAN BATTERY $ 156.32 $ 162.57 $ 4.06 $ 188.84 $ 176.54 $ 285.36
------------------ ------------------------------------------- ---------- ----------- ---------- ----------- ----------- -----------
T145 TROJAN BATTERY $ 189.42 $ 197.00 $ 4.92 $ 201.92 $ 211.82 $ 222.41
------------------ ------------------------------------------- ---------- ----------- ---------- ----------- ----------- -----------
T875 TROJAN BATTERY $ 191.69 $ 199.36 $ 4.96 $ 204.34 $ 214.24 $ 224.95
------------------------------------------------------------------------------------------------------------------------------------
Deep Cycle
------------------------------------------------------------------------------------------------------------------------------------
24DC-3 DEEP CYCLE BATTERY $ 99.12 $ 103.08 $ 2.58 $ 105.66 $ 115.96 $ 121.34
------------------ ------------------------------------------- ---------- ----------- ---------- ----------- ----------- -----------
27DC-5 DEEP CYCLE BATTERY $ 115.77 $ 120.40 $ 3.01 $ 123.41 $ 133.31 $ 139.96
------------------ ------------------------------------------- ---------- ----------- ---------- ----------- ----------- -----------
DC110 DEEP CYCLE BATTERY $ 62.29 $ 64.78 $ 1.62 $ 66.40 $ 76.30 $ 80.12
------------------ ------------------------------------------- ---------- ----------- ---------- ----------- ----------- -----------
DC200 DEEP CYCLE BATTERY $ 220.80 $ 229.42 $ 5.74 $ 235.16 $ 245.06 $ 257.31
------------------ ------------------------------------------- ---------- ----------- ---------- ----------- ----------- -----------
DC35 DEEP CYCLE BATTERY N/A N/A
------------------ ------------------------------------------- ---------- ----------- ---------- ----------- ----------- -----------
DC45 DEEP CYCLE BATTERY N/A N/A
------------------ ------------------------------------------- ---------- ----------- ---------- ----------- ----------- -----------
U1DC-1 GARDEN TRACTOR BATTERY $ 68.39 $ 71.13 $ 1.78 $ 72.90 $ 82.80 $ 86.94
------------------------------------------------------------------------------------------------------------------------------------
Optima
------------------------------------------------------------------------------------------------------------------------------------
V75/35 VORTEX $ 9.90 $ 206.02
------------------ ------------------------------------------- ---------- ----------- ---------- ----------- ----------- -----------
850S OPTIMA RED $ 9.90 $ 218.90
------------------ ------------------------------------------- ---------- ----------- ---------- ----------- ----------- -----------
1000W OPTIMA BLUE $ 9.90 $ 223.65
------------------ ------------------------------------------- ---------- ----------- ---------- ----------- ----------- -----------
D750S OPTIMA YELLOW $ 9.90 $ 275.90
------------------------------------------------------------------------------------------------------------------------------------
Motorcycle
------------------------------------------------------------------------------------------------------------------------------------
9BS MOTORCYCLE BATTERY $ 50.72
------------------ ------------------------------------------- ---------- ----------- ---------- ----------- ----------- -----------
12BS MOTORCYCLE BATTERY $ 60.23
------------------ ------------------------------------------- ---------- ----------- ---------- ----------- ----------- -----------
20BS MOTORCYCLE BATTERY $ 76.08
------------------ ------------------------------------------- ---------- ----------- ---------- ----------- ----------- -----------
16LB MOTORCYCLE BATTERY $ 91.83
------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
3
<PAGE>
<TABLE>
<S> <C> <C> <C> <C> <C> <C> <C>
------------------------------------------------------------------------------------------------------------------------------------
10LA MOTORCYCLE BATTERY $ 53.89
------------------ ------------------------------------------- ---------- ----------- ---------- ----------- ----------- -----------
4LB MOTORCYCLE BATTERY $ 60.23
------------------ ------------------------------------------- ---------- ----------- ---------- ----------- ----------- -----------
10LA2 MOTORCYCLE BATTERY $ 20.93
------------------ ------------------------------------------- ---------- ----------- ---------- ----------- ----------- -----------
12AA MOTORCYCLE BATTERY $ 36.14
------------------ ------------------------------------------- ---------- ----------- ---------- ----------- ----------- -----------
14AA2 MOTORCYCLE BATTERY $ 39.94
------------------ ------------------------------------------- ---------- ----------- ---------- ----------- ----------- -----------
14LA2 MOTORCYCLE BATTERY $ 41.21
------------------ ------------------------------------------- ---------- ----------- ---------- ----------- ----------- -----------
16B MOTORCYCLE BATTERY $ 47.55
------------------ ------------------------------------------- ---------- ----------- ---------- ----------- ----------- -----------
16CLB MOTORCYCLE BATTERY $ 57.06
------------------ ------------------------------------------- ---------- ----------- ---------- ----------- ----------- -----------
C50N18LA2 MOTORCYCLE BATTERY $ 49.46
------------------ ------------------------------------------- ---------- ----------- ---------- ----------- ----------- -----------
12N54B MOTORCYCLE BATTERY $ 18.39
------------------ ------------------------------------------- ---------- ----------- ---------- ----------- ----------- -----------
12N55A3B MOTORCYCLE BATTERY $ 22.83
------------------ ------------------------------------------- ---------- ----------- ---------- ----------- ----------- -----------
12N94B1 MOTORCYCLE BATTERY $ 24.73
------------------ ------------------------------------------- ---------- ----------- ---------- ----------- ----------- -----------
8N63B MOTORCYCLE BATTERY $ 12.68
------------------ ------------------------------------------- ---------- ----------- ---------- ----------- ----------- -----------
8N42A5 MOTORCYCLE BATTERY $ 12.04
------------------------------------------------------------------------------------------------------------------------------------
Small Sealed Lead Acid (SLA)
------------------------------------------------------------------------------------------------------------------------------------
YP4-6 SONA $ 9.18
------------------ ------------------------------------------- ---------- ----------- ---------- ----------- ----------- -----------
YP6-6 SONA $ 15.05
------------------ ------------------------------------------- ---------- ----------- ---------- ----------- ----------- -----------
YP8-6 SONA $ 17.52
------------------ ------------------------------------------- ---------- ----------- ---------- ----------- ----------- -----------
YP10-6 SONA $ 18.41
------------------ ------------------------------------------- ---------- ----------- ---------- ----------- ----------- -----------
YP1.2-12 SONA $ 11.00
------------------ ------------------------------------------- ---------- ----------- ---------- ----------- ----------- -----------
YP3-12 SONA $ 17.77
------------------ ------------------------------------------- ---------- ----------- ---------- ----------- ----------- -----------
YP7-12 SONA $ 23.94
------------------ ------------------------------------------- ---------- ----------- ---------- ----------- ----------- -----------
YP12-12 SONA $ 37.41
------------------ ------------------------------------------- ---------- ----------- ---------- ----------- ----------- -----------
YP17-12 SONA $ 46.01
------------------ ------------------------------------------- ---------- ----------- ---------- ----------- ----------- -----------
YP40-12 SONA $ 113.50
------------------ ------------------------------------------- ---------- ----------- ---------- ----------- ----------- -----------
PE12V7 PORTALAC $ 48.80
------------------ ------------------------------------------- ---------- ----------- ---------- ----------- ----------- -----------
PE12V17 PORTALAC $ 88.32
------------------ ------------------------------------------- ---------- ----------- ---------- ----------- ----------- -----------
PE12V24 PORTALAC $ 124.72
------------------ ------------------------------------------- ---------- ----------- ---------- ----------- ----------- -----------
PE12V40 PORTALAC $ 172.57
------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
4
<PAGE>
ASSET PURCHASE AGREEMENT
Dated as of 28 June 2000
between
GNB Battery Technologies Limited and Australian Battery Company (Aust.) Pty
Ltd. and Pacific Dunlop Limited, as Sellers;
and
Exide Australia Pty Limited, as Buyer.
<PAGE>
<TABLE>
<S> <C>
ARTICLE I. DEFINITIONS............................................................................ 1
Section 1.1. Definitions....................................................................... 1
ARTICLE II. PURCHASE AND SALE...................................................................... 7
Section 2.1. Purchased Assets.................................................................. 7
Section 2.2. Excluded Assets................................................................... 8
Section 2.3. Assumed Liabilities............................................................... 9
Section 2.4. Excluded Liabilities.............................................................. 10
Section 2.5. Coordinating Agreement............................................................ 11
Section 2.6. Ownership and Risk................................................................ 11
Section 2.7. Taxes............................................................................. 11
Section 2.8. Defence of Actions................................................................ 11
Section 2.9. Receivables....................................................................... 12
ARTICLE III. PURCHASE PRICE......................................................................... 13
Section 3.1. Purchase Price.................................................................... 13
Section 3.2. Allocation of Purchase Price and Assumed Liabilities.............................. 13
ARTICLE IV. CLOSING................................................................................ 13
Section 4.1. Closing........................................................................... 13
Section 4.2. Documents to be Delivered to Buyer................................................ 14
Section 4.3. Documents to be Delivered to Seller............................................... 16
Section 4.4. Form of Documents................................................................. 16
ARTICLE V. REPRESENTATIONS AND WARRANTIES OF SELLER............................................... 16
Section 5.1. Organization...................................................................... 17
Section 5.2. Power and Authority; Agreement Binding............................................ 17
Section 5.3. Absence of Conflicts.............................................................. 17
Section 5.4. No Litigation..................................................................... 18
Section 5.5. No Violation...................................................................... 18
Section 5.6. Operations Since June 30, 1999.................................................... 18
Section 5.7. Taxes............................................................................. 20
Section 5.8. Title to Assets................................................................... 21
Section 5.9. Real Property..................................................................... 21
Section 5.10. Personal Property................................................................. 22
Section 5.11. Personal Property Leases.......................................................... 22
Section 5.12. Governmental Permits.............................................................. 22
Section 5.13. Intellectual Property............................................................. 22
Section 5.14. Employees......................................................................... 23
Section 5.15. Superannuation.................................................................... 23
Section 5.16. Contracts......................................................................... 24
Section 5.17. Status of Contracts............................................................... 25
Section 5.18. Environmental Matters............................................................. 25
Section 5.19. Insurance......................................................................... 27
Section 5.20. Product Warranties................................................................ 28
Section 5.21. No Advisor........................................................................ 28
Section 5.22. Accounts and Records.............................................................. 28
Section 5.23. No Misrepresentation.............................................................. 28
Section 5.24. Purchased Assets.................................................................. 28
Section 5.25. Material Consents................................................................. 28
</TABLE>
<PAGE>
<TABLE>
<S> <C>
Section 5.26. Powers of Attorney................................................................ 29
ARTICLE VI. REPRESENTATIONS AND WARRANTIES OF BUYER................................................ 29
Section 6.1. Organization...................................................................... 29
Section 6.2. Power and Authority............................................................... 29
Section 6.3. Agreement Binding................................................................. 29
Section 6.4. Absence of Conflicts.............................................................. 30
Section 6.5. No Litigation..................................................................... 30
Section 6.6. No Advisor........................................................................ 30
Section 6.7. No Misrepresentation.............................................................. 30
ARTICLE VII. ACTION PRIOR TO THE CLOSING DATE....................................................... 31
Section 7.1. Preserve Accuracy of Representations and Warranties............................... 31
Section 7.2. Consents of Third Parties; Governmental Approvals................................. 31
Section 7.3. Operations Prior to the Closing Date.............................................. 32
Section 7.4. Intercompany Agreements........................................................... 32
Section 7.5. Notification of Changes........................................................... 32
Section 7.6. Export Licence.................................................................... 32
Section 7.7. Changes to Employment Conditions.................................................. 33
Section 7.8. General........................................................................... 33
Section 7.9. Preservation of Business.......................................................... 33
ARTICLE VIII. CONDITIONS TO CLOSING.................................................................. 33
Section 8.1. Conditions to the Obligations of the Buyer........................................ 33
Section 8.2. Conditions to the Obligations of Seller........................................... 35
ARTICLE IX. ADDITIONAL AGREEMENT OF THE PARTIES.................................................... 37
Section 9.1. Conveyance and Transfer of Owned Real Property.................................... 37
Section 9.2. Taxes............................................................................. 37
Section 9.3. Employees and Employee Benefit Plans.............................................. 40
Section 9.4. Post-Closing Remittances.......................................................... 41
Section 9.5. Superannuation.................................................................... 41
Section 9.6. Insurance......................................................................... 46
ARTICLE X. TERMINATION............................................................................ 46
Section 10.1. Termination....................................................................... 46
Section 10.2. Notice of Termination............................................................. 47
Section 10.3. Effect of Termination............................................................. 47
ARTICLE XI. EXCLUSIVITY OF REMEDY.................................................................. 47
Section 11.1. Indemnification by Seller......................................................... 47
Section 11.2. Indemnification by Buyer.......................................................... 48
Section 11.3. Exclusivity of Remedy............................................................. 48
ARTICLE XII. GENERAL PROVISIONS..................................................................... 48
Section 12.1. Notices........................................................................... 48
Section 12.2. Confidential Information.......................................................... 50
Section 12.3. No Public Announcement............................................................ 50
Section 12.4. Entire Agreement; Amendments...................................................... 50
Section 12.5. Successors and Assigns............................................................ 51
Section 12.6. Interpretation.................................................................... 51
Section 12.7. Waivers........................................................................... 51
Section 12.8. Expenses.......................................................................... 52
Section 12.9. Partial Invalidity................................................................ 52
</TABLE>
<PAGE>
<TABLE>
<S> <C>
Section 12.10. Execution in Counterparts......................................................... 52
Section 12.11. Governing Law..................................................................... 52
Section 12.12. Further Assurances and Cooperation................................................ 52
Section 12.13. No Reliance....................................................................... 53
Section 12.14. Disclosure Schedules.............................................................. 53
</TABLE>
EXHIBITS
Exhibit A Allocation of Purchase Price and Assumed Liabilities
SCHEDULES
1.1 Permitted Encumbrance
1.2 Material Consents
3.2 Allocation of Purchase Price and Assumed Liabilities
5.1 Organization
5.3 Absence of Conflicts
5.4 No Litigation
5.5 No Violation
5.6(A) Operations Since June 30, 1999
5.6(B) Operations Since June 30, 1999
5.7 Taxes
5.8 Title to Assets
5.9(A) Real Property
5.9(B) Real Property
5.10 Personal Property
5.11 Personal Property Leases
5.12(A) Governmental Permits
5.12(B) Governmental Permits
5.13(A) Intellectual Property
5.13(C) Intellectual Property
5.14(A) Employees
5.14(B) Employees
5.15 Super annuation
5.16 Contracts
5.17 Status of Contracts
5.18(A) Environmental Matters
5.18(B) Environmental Matters
5.18(C) Environmental Matters
5.18(D) Environmental Matters
5.18(E) Environmental Matters
5.18(F) Environmental Matters
5.18(G) Environmental Matters
5.18(J) Environmental Matters
5.19 Insurance
<PAGE>
5.20 Product Warranties
7.3 Operations Prior to the Closing Date
7.4 Intercompany Agreements
<PAGE>
ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT, dated as of 28 June 2000 (the "Agreement") is
executed by and among GNB BATTERY TECHNOLOGIES LIMITED ACN 000 023 003 of Level
1, 293 Camberwell Road, Camberwell, Victoria, AUSTRALIAN BATTERY COMPANY (AUST.)
PTY LTD. ACN 008 644 497 of Level 1, 293 Camberwell Road, Camberwell, Victoria
and Pacific Dunlop Limited ACN 004 085 330 of Level 41, 101 Collins Street,
Melbourne, Victoria, 3000 (collectively "Seller"), and EXIDE AUSTRALIA PTY
LIMITED ACN 093 272 005, a corporation incorporated under the laws of the State
of Victoria ("Buyer").
WHEREAS, Seller is engaged in the business of designing, manufacturing,
distributing and selling automotive and industrial batteries including
recovering batteries for the purpose of recycling in Australia at and from
various locations owned by Seller or third parties (the "Business"); and
WHEREAS, Buyer desires to purchase from Seller, and Seller desires to sell to
Buyer, substantially all of the assets and properties owned by the Seller and
used exclusively in relation to the Business, all on the terms and subject to
the conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, Buyer and Seller agree as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.1. Definitions
-----------
In this Agreement, the following terms have the meanings specified or referred
to in this Section 1.1 and shall be equally applicable to both the singular and
-----------
plural forms. Any agreement referred to below shall mean such agreement as
amended, supplemented and modified from time to time to the extent permitted by
the applicable provisions thereof and by this Agreement.
"Action" means any lawsuit, arbitration, or regulatory governmental or other
proceeding or investigation, whether at law or in equity.
"Adjoining Properties" shall mean all sites or locations other than the Real
Property or the PRP Sites to which Contaminants have migrated from the Real
Property through air, soil, surface water or groundwater.
"Affiliate" means, with respect to any Person, any other Person which directly
or indirectly controls, is controlled by or is under common control with such
Person.
"Agreement" has the meaning specified in the first paragraph of this Agreement.
<PAGE>
"Assumed Liabilities" has the meaning specified in Section 2.3.
-----------
"Balance Sheets" means the balance sheets that are part of the Financial
Statements.
"Business" has the meaning specified in the second paragraph of this Agreement.
"Business Day" means a day other than Saturday, Sunday or a day on which United
States national banks are closed.
"Buyer" has the meaning specified in the first paragraph of this Agreement.
"Buyer Ancillary Agreements" means all agreements, instruments and documents
being or to be executed and delivered by Buyer under this Agreement.
"Closing" has the meaning specified in Section 4.1.
-----------
"Closing Date" has the meaning specified in Section 4.1.
-----------
"Confidential Information" has the meaning specified in Section 12.2.
------------
"Contaminant" means a solid, liquid, gas, odour, heat, sound, vibration,
radiation or substance which makes or may make the Real Property or the
surrounding Environment:
(a) unsafe or unfit for habitation or occupation by persons or animals;
(b) degraded in its capacity to support plant life;
(c) otherwise Environmentally degraded; or
(d) not comply with any Environmental Law.
"Contractor" means all persons, other than Seller Employees, who have performed
or currently perform work for Seller under any current contract.
"Contractor Entitlements" means any remuneration, compensation or benefits
payable by Seller to, or on behalf of or in respect of, Contractors.
"Coordinating Agreement" means that certain Coordinating Agreement dated as of 9
May 2000 between Pacific Dunlop Holdings (USA) Inc. and Exide Corporation, as
amended and supplemented from time to time.
-2-
<PAGE>
"Court Order" means any judgment, order, award or decree of any foreign,
federal, state or local court, tribunal or governmental agency and any award in
any arbitration proceeding.
"Disclosure Schedules" means the Disclosure Schedules dated 12 June 2000, as
modified pursuant to Section 5.7 of the Coordinating Agreement.
"Employment Benefit" means all wages, salary, remuneration, compensation and
benefits payable by Seller to, or on behalf of or in respect of, Seller
Employees.
"Employee Leave Benefit" means annual leave and leave loading, long service
leave and sick leave.
"Encumbrance" means any lien, charge, security interest, mortgage, pledge, power
of sale, easement, encroachment, covenant, restriction on transfer or other
restriction on or defect in title or other encumbrances.
"Environment" means the physical factors of the surroundings of human beings
including, without limitation, the land, air, waters, atmosphere, climate,
sound, odours, taste and the biological factors of those surroundings such as
plants, animals and other forms of life.
"Environmental Law" means all Requirements of Law relating to pollution or the
regulation and protection of human health or the Environment, including without
limitation, those regarding or relating to emissions, discharges, Releases or
threatened Releases of Contaminants or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of Contaminants.
"Excluded Assets" has the meaning specified in Section 2.2.
-----------
"Excluded Liabilities" has the meaning specified in Section 2.4.
-----------
"Expenses" means any and all reasonable expenses incurred in connection with
investigating, defending or asserting any Action (including court filing fees,
court costs, arbitration fees or costs, witness fees, and reasonable fees and
disbursements of legal counsel, investigators, expert witnesses, accountants and
other professionals).
"Final Closing Date Balance Sheet" has the meaning specified in the Coordinating
Agreement.
"Financial Statements" has the meaning specified in the Coordinating Agreement.
"Governmental Body" means any foreign, Australian, state or local governmental
authority, agency, or government or regulatory body.
-3-
<PAGE>
"Governmental Permits" has the meaning specified in Section 5.12(a).
---------------
"Intellectual Property" has the meaning specified in Section 2.1(e).
--------------
"Intellectual Property Transfer/License Documents" has the meaning specified in
Section 4.2(g).
--------------
"Intercompany Agreements" means agreements between Seller and an Affiliate of
Seller in connection with the Business.
"Knowledge of the Seller" or similar phrases means matters actually known to
Thomas Minner, Thomas Smith, Thomas O'Hare, Mitchell Bregman, Barbara Hatcher,
William Morrissy, Allan Moore or David Markey.
"Knowledge of the Seller Regarding Environmental Matters" or similar phrases
means matters actually known to John Hawkins, Wayne Davenport, Brian Smith, Bill
Cooper, Steve Emmons, Barbara Hatcher, or William Morrissy.
"Leased Real Property" has the meaning specified in Section 5.9(b).
--------------
"Losses" means losses, obligations, liabilities, settlement payments, awards,
judgments, fines, assessments, penalties, and damages.
"March 31, 2000 Balance Sheet" has the meaning specified in the Coordinating
Agreement, including the notes to such balance sheet.
"Material Adverse Effect" means any event, occurrence or condition (other than
as a result of general economic conditions or events or conditions affecting the
automotive and industrial battery industry as a whole) which has, or could
reasonably be expected to have, a material adverse effect on the financial
condition, assets, results of operations, Business, or operations of the
Business, taken as a whole.
"Material Consents" means those consents set forth on Schedule 1.2.
------------
"Owned Real Property" has the meaning specified in Section 5.9(a).
--------------
"Permitted Encumbrances" means the Encumbrances specifically set forth on
Schedule 1.1 hereto.
------------
"Person" means any individual, corporation, partnership, limited liability
company or corporation, joint venture, association, joint-stock company, trust,
unincorporated organization or Governmental Body.
-4-
<PAGE>
"Principal US Agreement" means the Stock Purchase Agreement With Respect To
Pacific Dunlop GNB Corporation dated May 9, 2000, between Pacific Dunlop
Holdings (USA) Inc., as Seller, and Exide Corporation, as Buyer, as amended and
supplemented from time to time.
"PRP Sites" shall mean all sites (other than the Real Property and the Adjoining
Properties) with respect to which Seller, or any of its successors or assignees
have or may have liability under any Environmental Law.
"Purchase Price" has the meaning specified in Section 3.1.
-----------
"Purchased Assets" has the meaning specified in Section 2.1.
-----------
"Real Property" has the meaning specified in Section 5.9(b).
--------------
"Receivables" has the meaning specified in Section 2.2(j).
--------------
"Release" includes any and all spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, disposing and any
other means by which a substance may be introduced into or travel through the
Environment.
"Remedial Action" shall include all actions required by a Court order or
otherwise by a Governmental Body to: (i) clean up, remove, remediate, contain,
treat, monitor, assess, evaluate or in any other way address Contaminants; (ii)
prevent or minimise Release or threatened Release of Contaminants; or (iii)
investigate and determine if a remedial response is needed and to design such a
response and undertake post-remedial investigation, monitoring, operation and
maintenance.
"Requirements of Law" means any foreign, federal, state or local law, statute,
regulation, code or ordinance of any Governmental Body currently in effect.
"ROW Agreements" has the meaning specified in the Coordinating Agreement.
"Seller" means each of the parties specified in the first paragraph of this
Agreement on the basis that each such party's rights and obligations under this
agreement are strictly limited to those of the Purchased Assets in which it has
an interest and those Assumed Liabilities and Seller Employees referrable to it.
"Seller Agreements" has the meaning specified in Section 5.17.
------------
"Seller Ancillary Agreements" means all agreements, instruments and documents
being or to be executed and delivered by the Seller under this Agreement.
-5-
<PAGE>
"Seller Employees" has the meaning specified in Section 9.3(a).
--------------
"Seller's Fund" has the meaning specified in Section 9.5(m).
--------------
"Supply Agreements " means the supply agreements made on or about 23 November
1998 between: (i) GNB Battery Technologies Ltd. and The Distribution Group
Holdings Limited (ACN 006048497); (ii) GNB Battery Technologies Ltd and Pacific
Dunlop Tyres Pty Limited (ACN 004452984), and Goodyear Tyres Pty Limited (ACN
000145433); and (iii) GNB Battery Technologies Ltd and The Distribution Group
Holdings Limited trading as Repco Auto Parts/Traders Auto Spares.
"Tax" (and, with correlative meaning, "Taxes" and "Taxable") means any federal,
state, county, local or foreign income, alternative or add-on minimum, gross
income, gross receipts, capital gains, capital, property, sales, use, transfer,
license, excise, premium, lease, estimated, environmental, registration, value
added, stamp, real property, franchise, employment, payroll, wage, withholding
or minimum tax, ad valorem, or customs duty and any other similar taxes or
governmental charges, fees, levies, assessments or liabilities of any kind
whatsoever, whether computed on a separate or consolidated, unitary or combined
basis or in any other manner, and includes any interest, penalty or fine, or
addition to tax imposed by any Governmental Body.
"Tax Return" means any return, report or similar statement required to be filed
with respect to any Taxes (including any attached schedules), including, without
limitation, any information return, claim for refund, amended return and
declaration of estimated Tax.
"Transferring Employee" means an Employee who accepts the Buyer's offer of
employment under Section 9.3 (b).
---------------
ARTICLE II.
PURCHASE AND SALE
SECTION 2.1. Purchased Assets.
----------------
Upon the terms and subject to the conditions of this Agreement, on the Closing
Date, Seller shall sell, transfer, assign, convey and deliver to Buyer, and
Buyer shall purchase from Seller, all of the rights, assets and properties of
Seller of every kind and description used in, consumed by or otherwise relating
exclusively to the Business, wherever located, real, personal or mixed, tangible
or intangible as such assets shall exist on the Closing Date, including such
assets reflected in the Final Closing Date Balance Sheet, but excluding the
Excluded Assets (herein collectively called the "Purchased Assets"). The
Purchased Assets shall include, without limitation, all of the Seller's right,
title and interest in and to:
(a) Real Property. All Real Property and interests therein owned or occupied
-------------
by the Seller exclusively in relation to the Business, including all land,
plant, warehouse and office
-6-
<PAGE>
facilities and other improvements and fixtures attached to said Real
Property and comprising the Owned Real Property described in Schedule
--------
5.9(A) and all interest in the Leased Real Property described in Schedule
------ --------
5.9(B);
------
(b) Machinery and Equipment. All machinery and equipment, including machines,
-----------------------
smelters, data processing hardware and software, vehicles, furniture,
fixtures, capital expenditures in process, tools, dies, moulds, and similar
tangible personal property, and all interest in any such personal property
leased from third parties owned or used by the Seller exclusively in
relation to the Business, including specifically but without limitation
those items listed and described in Schedule 5.10 and Schedule 5.11;
------------- -------------
(c) Inventory. All inventories owned by the Seller exclusively in relation to
---------
the Business consisting of raw materials, work in progress and finished
goods and supplies as the same may exist on the Closing Date including
goods in transit and stock ordered by and paid for by the Seller prior to
the Closing Date but not received by the Closing Date;
(d) Intentionally deleted;
(e) Proprietary Rights. All patents, patent applications, patent disclosures
------------------
and inventions; trademarks, service marks, logos, trade dress, designs,
trade names, business names, company names other than "Pacific Dunlop,"
"Dunlop" or "Olympic", and any applications to register any of the
foregoing; copyrights and copyright registrations, trade secrets, know-how
and confidential business information, computer software, data or
documentation, and other proprietary rights or any licenses to and from any
Person with respect to any of the foregoing developed by or for Seller
exclusively in relation to the Business or employed or utilized by the
Seller exclusively in the conduct of the Business, and all other
intellectual, industrial, proprietary information, rights and interests
(including common law rights and interests) employed or utilized by the
Seller exclusively in the conduct of the Business, including without
limitation, those items listed on Schedule 5.13(A) (the "Intellectual
----------------
Property");
(f) Executory Agreements. The rights of Seller to the extent such rights
--------------------
relate exclusively to the Business under any executory agreement to which
Seller is a party in relation to the Business (excluding any agreement
giving rise to an Excluded Liability), including, without limitation, those
listed or described on Schedule 5.16(A), and the following, if any: any
----------------
distribution agreement, license agreement, promissory note, guaranty, loan
agreement, security agreement, indemnity agreement, subordination
agreement, indenture, mortgage, lease (whether or not capitalised and
including, without limitation, those listed in Schedule 5.11), conditional
-------------
sale or title retention agreement, any purchase order or contract with any
customer or supplier of Seller relating exclusively to the Business to the
extent that such purchase order or contract is not fulfilled by Seller on
the Closing Date;
-7-
<PAGE>
(g) Certain Rights of Seller. All claims, rights and causes of action of
------------------------
Seller against third Persons relating exclusively to the Business,
including claims, rights and causes of action against third Persons arising
under warranties from vendors and others;
(h) Books and Records. Except as specified in Section 2.2(i), all the Seller's
----------------- --------------
books and records in relating exclusively to the Business (including all
data and other information stored on discs, hard drives, tapes or other
media) including, without limitation, employee records and copies of those
books and records, to the extent they relate to the Business, except for
those books and records which the Seller is required by law to retain;
(i) Governmental Permits. All Governmental Permits held by the Seller in
--------------------
relation to the Business, including those listed on Schedule 5.12(A) or
----------------
Schedule 5.18(B); and
----------------
(j) Other Assets. All other rights, assets and properties of Seller relating
------------
exclusively to the Business, except for Excluded Assets, whether real,
personal, tangible, intangible or mixed, including books, records and files
(including all personnel files), any prepaid expenses, and any utility
deposits, all except as specifically excluded in Section 2.2.
------------
Section 2.2. Excluded Assets
---------------
Notwithstanding the provisions of Section 2.1, the Purchased Assets shall not
-----------
include the following (herein referred to as the "Excluded Assets"):
(a) Cash. All cash, cash equivalents, bank accounts, certificates of deposit,
----
investment securities, commercial paper and any other marketable securities
or similar investments of Seller;
(b) Excluded Names. The Seller's rights to the following names and trademarks:
--------------
Dunlop (subject to Section 4.2(k)), Olympic.
---------------
(c) Corporate Records. All corporate minute books and stock transfer books and
-----------------
the corporate seals of Seller;
(d) Taxes. All refunds of any Taxes paid by the Seller, and all Tax records
-----
and Tax Returns with respect to periods ending on or before the Closing
Date, and all claims for Taxes paid by the Seller;
(e) Certain Rights of Seller. All agreements and all claims, rights and causes
------------------------
of action relating to Excluded Assets or relating to liabilities and
obligations not included in Assumed Liabilities;
-8-
<PAGE>
(f) Intercompany Loans. Any liabilities or obligations owing to Seller by any
------------------
Affiliate of Seller that are not effectively eliminated by means of
intercompany adjustments effected in connection with the preparation of the
Final Closing Balance Sheet and the audit performed in connection
therewith;
(g) Insurance. All business insurance policies of Seller and all rights
---------
thereunder;
(h) Pacific Marine Batteries. Seller's shareholding in Pacific Marine
------------------------
Batteries Pty Ltd;
(i) Books and Records. All books and records relating to any of the foregoing
-----------------
and originals of all other books and records which the Seller is required
by law to retain; and
(j) Receivables. All notes and trade and other accounts receivable owed to the
-----------
Seller exclusively in relation to the Business as the same may exist on the
Closing Date (the "Receivables").
Section 2.3. Assumed Liabilities
-------------------
On and from the Closing Date, Buyer shall assume and agree to discharge and
shall keep the Seller indemnified against the following obligations and
liabilities of Seller relating to the Business:
(a) Ordinary Course Liabilities. The current Liabilities of Seller relating
----------------------------
to the Business or the Purchased Assets as of the Closing Date to the
extent provided for in the Final Closing Date Balance Sheet;
(b) Executory Contracts. Liabilities, obligations, and commitments of Seller
-------------------
arising under the Seller Agreements, and all other contracts, agreements,
or commitments entered into in the ordinary course of business to which
Seller is a party in relation to the Business or by which it or any of the
Purchased Assets is bound that is not required to be set forth on any
Schedule to this Agreement;
(c) Sales Orders. All liabilities, obligations, and commitments with respect
------------
to sales orders placed with Seller in the ordinary course of business of
the Business to the extent such orders have not been filled as of the
Closing Date;
(d) Product Warranties. All obligations of Seller pursuant to product or
------------------
service guarantees or warranties (whether express or implied) or under
Seller's product return policies given in the ordinary course of business
of the Business by Seller, including, without limitation, all liabilities
and obligations for product returns (regardless of whether such products
were sold before or after the Closing Date);
(e) Employees. Employee Leave Benefits and other entitlements due post
---------
Closing;
-9-
<PAGE>
(f) Actions. Liabilities arising from the Actions referenced in the Disclosure
-------
Schedules and Expenses relating to such Actions; and
(g) Environmental Liabilities. All costs and liabilities of whatever nature
-------------------------
arising from or relating to matters disclosed in Schedule 5.18 of the
--------------
Disclosure Schedules.
All of the foregoing liabilities and obligations to be assumed by Buyer
hereunder are referred to herein as the "Assumed Liabilities."
Section 2.4. Excluded Liabilities
--------------------
Buyer shall not assume or be obligated to pay, perform or otherwise discharge
any liabilities or obligations of Seller other than the Assumed Liabilities (all
such liabilities and obligations not being assumed being herein called the
"Excluded Liabilities"). The Excluded Liabilities include:
(a) Taxes. Any Taxes levied against Seller on or prior to the Closing Date or
-----
subsequent to the Closing Date but relating to periods ending on or prior
to the Closing Date, but only insofar as such Taxes have not been reflected
or reserved against in the Final Closing Date Balance Sheet;
(b) Intercompany Loans. Any liabilities or obligations owing to any Affiliate
------------------
of Seller that are not effectively eliminated by means of intercompany
adjustments effected in connection with the preparation of the Final
Closing Date Balance Sheet and the audit performed in connection therewith;
and
(c) Excluded Assets. Liabilities or obligations in respect of any Excluded
---------------
Assets.
Section 2.5. Coordinating Agreement
----------------------
The parties agree that nothing in this Agreement is intended to exclude, or
reduce the operation or effect of, the indemnities and limitations contained in
Article 4 of the Coordinating Agreement.
Section 2.6. Ownership and Risk
------------------
Until Closing, the Seller remains the owner of and bears all risks in connection
with the Business and Purchased Assets and Assumed Liabilities. On Closing,
property in and risk of the Business and the Purchased Assets and Assumed
Liabilities passes to the Buyer.
-10-
<PAGE>
Section 2.7. Taxes
-----
On and from the Closing Date, Buyer agrees to discharge, in accordance with
Section 9.2(b), and shall keep the Seller indemnified against all current
--------------
liabilities for Taxes to the extent reflected or reserved against in the Final
Closing Date Balance Sheet.
Section 2.8. Defence of Actions
------------------
In relation to each of the Actions referred to in Section 2.3(f), the Seller
--------------
must use resources provided by the Buyer and subject to being indemnified by the
Buyer against all costs, claims, liabilities and expenses suffered or incurred
by the Seller:
(a) use its best endeavours to conduct the Action in all respects in accordance
with the lawful and proper instructions and directions of the Buyer and
must promptly take all lawful and proper action (including execution,
lodgement and service of documents and correspondence) required by the
Buyer to avoid, defend, compromise or settle the Action;
(b) not do any act other than as instructed or directed by the Buyer; and
(c) provide the Buyer and its representatives and advisors at all times with
full and free access (with the right to take copies) of all documents and
correspondence relevant to the Action.
Section 2.9. Receivables
-----------
(a) On the Closing Date, the Buyer must advance to the Seller by way of loan
("Loan") an amount equal to the total amount of the Receivables shown on
Schedule 3.2. The Loan (as adjusted under Section 2.9(d)) will be:
------------ --------------
(i) repayable by the Seller only from Receivables collected by the Buyer
and paid to the Seller (and not from any other moneys) in accordance
with Section 2.9(c); and
--------------
(ii) interest free and unsecured.
(b) The Seller hereby appoints the Buyer, as the Seller's agent, for a period
from the Closing Date to the Purchase Price Adjustment Due Date, as defined
in the Coordinating Agreement ("Collection Period") to collect the
Receivables on behalf of the Seller.
(c) On the last day of each week during the Collection Period:
(i) the Buyer must provide the Seller with a written report of all
Receivables collected by the Buyer in that week;
(ii) the Buyer must account to the Seller for the amount collected in that
week; and
-11-
<PAGE>
(iii) the Seller must immediately apply all amounts paid to it under
paragraph (c)(ii) towards repayment of the Loan. The Seller hereby
irrevocably directs and authorises the Buyer to pay all amounts
payable to the Seller under paragraph (c)(ii) to the Buyer towards
repayment of the Loan.
(d) On the last day of the Collection Period the Loan must be:
(i) increased by the further advance by the Buyer to the Seller of the
amount (if any) by which the value of Receivables in the Final
Closing Date Balance Sheet exceeds the amount advanced under Section
-------
2.9(a); or
------
(ii) reduced by the repayment by the Seller to the Buyer of the amount (if
any) by which the value of Receivables in the Final Closing Date
Balance Sheet is less than the amount advanced under Section 2.9(a).
--------------
(e) If, on the last day of the Collection Period, any Receivables remain
outstanding, then:
(i) the Seller must repay the balance of the Loan to the Buyer; and
(ii) the Buyer must immediately apply the amount repaid to it under
paragraph(e)(i) in purchasing from the Seller all outstanding
Receivables and the Seller must sell all of those outstanding
Receivables to the Buyer free from Encumbrances.
(f) The Buyer agrees to keep the Seller indemnified from and against any stamp
duty (including interest and penalties) arising in relation to the
operation of this Section 2.9.
-----------
ARTICLE III.
PURCHASE PRICE
Section 3.1. Purchase Price
--------------
The purchase price (the "Purchase Price") shall be equal to Forty Two Million
Six Hundred Ninety Five Thousand United States dollars (US$42,695,000) (subject
to the adjustments provided for in the Coordinating Agreement). At the Closing,
Buyer shall pay the Purchase Price to Seller by wire transfer of immediately
available funds to such bank account as Seller shall direct in writing. After
Closing, the Purchase Price shall be adjusted pursuant to the Coordinating
Agreement.
Section 3.2. Allocation of Purchase Price and Assumed Liabilities
----------------------------------------------------
The Purchase Price and the value of the Assumed Liabilities shall be allocated
among the Purchased Assets as set forth on Exhibit A, attached hereto (subject
---------
to the adjustments provided for in the Coordinating Agreement). The parties
agree that the allocation set forth Exhibit A, as amended and reissued pursuant
---------
to the Coordinating Agreement will be used by them and
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respected for all purposes, including income tax purposes, and that the parties
shall follow such allocation for all reporting purposes.
ARTICLE IV.
CLOSING
Section 4.1. Closing
-------
The closing of the purchase and sale of the Purchased Assets (the "Closing")
shall be consummated at 10:00 a.m. Chicago time on the last business day of the
month in which the last of the conditions specified in Article 8 is satisfied or
waived, at the offices of Gardner, Carton & Douglas at 321 North Clark Street,
in Chicago, Illinois, or at such other time or place as shall be agreed upon by
Buyer and Seller. Notwithstanding the foregoing, if the date upon which the
last of the conditions specified in Article 8 is satisfied or waived is 5 (or
fewer) Business Days before the last day of the month, then the Closing shall be
consummated on the fifth (5th) Business Day following the date on which the last
of such conditions were satisfied or waived, or such other date as may be agreed
upon by Buyer and Seller. The time and date on which the Closing is actually
held is referred to herein as the "Closing Date." The Closing shall be
effective as of the close of business on the Closing Date.
Section 4.2. Documents to be Delivered to Buyer
----------------------------------
At the Closing, Seller shall deliver or cause to be delivered to Buyer:
(a) a certificate of the secretary or an assistant secretary of Seller in a
form reasonably satisfactory to Buyer certifying as to the accuracy of the
Seller's representations and warranties at and as of the Closing and that
Seller has performed and complied with all of the terms, provisions and
conditions to be performed and complied with by Seller at or before the
Closing;
(b) a certificate of the secretary or an assistant secretary of Seller in a
form reasonably satisfactory to Buyer dated the Closing Date, certifying as
to: (i) Seller's Memorandum and Articles of Association; (ii) the
resolutions of Seller's board of directors authorizing the execution and
performance of this Agreement and the transactions contemplated hereby;
(iii) incumbency and signatures of the officers executing this Agreement
and any Seller Ancillary Agreement; and (iv) and with respect to GNB
Battery Technologies Limited and Australian Battery Company (Aust.) Pty
Ltd, the special resolution of the members of each such company authorizing
the change of the respective company's name;
(c) transfer of ownership and registration forms and road worthy certificates
for any vehicles and any documents necessary to transfer title to other
equipment included in the
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<PAGE>
Purchased Assets and a registered discharge of all Encumbrances (other than
Permitted Encumbrances) in respect thereto;
(d) all Material Consents (it being expressly understood that Seller shall have
no obligation to deliver to Buyer any consents other than the Material
Consents) and all assignments of other agreements which have been obtained
by the Closing Date provided always that it is agreed that any foreign
exchange hedging contracts and letters of credit are not to be transferred
to the Buyer which must make its own arrangements in respect of the matters
concerned with effect from Closing;
(e) such assignments with respect to the Leased Real Property described in
Schedule 5.9(B) as have been obtained by the Closing Date;
----------------
(f) all required transfers, declarations, documents of title and any other
documents as may be otherwise necessary to transfer title of the Owned Real
Property to Buyer and a registered discharge of all Encumbrances (other
than Permitted Encumbrances) in respect thereto;
(g) duly executed deeds of variation of each of the Supply Agreements:
(i) extending the term of each Supply Agreement to November 31, 2002; and
(ii) )varying the prices payable for products supplied pursuant to each
Supply Agreement so that they are, as from the Closing Date, the lower
of the prices in effect on the date hereof charged under each Supply
Agreement, or the prices arrived at by reducing those prices by a
percentage equal to the percentage (if any) by which the price to be
charged by GNB to Battery Assist Pty Ltd under the contract agreed
between GNB and GNB Battery Assist Pty Ltd on June 23, 2000, is less
than the price charged by GNB to GNB Battery Assist Pty Ltd under the
contract in force between them as at November 31, 1998.
(h) a "Statement of Change of Persons in relation to Whom Business Name is
Registered" for all business names included in the Purchased Assets;
(i) a duly executed ASIC Form 205 to change the company names of GNB Battery
Technologies Limited and Australian Battery Company (Aust.) Pty Ltd.;
(j) licence from Seller to Buyer relating to the use of the Dunlop trademark on
automotive batteries to be supplied to South Pacific Tyres;
(k) all necessary documents of title, transfer documents (including
registerable transfers, deeds of discharge of Encumbrances and deeds of
assignment, as the case may be), licenses and any other documents that may
be necessary to transfer ownership of the Business, the Purchased Assets
and the Assumed Liabilities to Buyer or to permit Buyer to continue to
operate the Business uninterrupted after the Closing;
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(l) those of the Purchased Assets capable of transfer by delivery, the title to
which shall pass to the Buyer on delivery;
(m) originals or counterparts of all written agreements referred to in Section
-------
2.1(f) and other documents connected with the Business;
------
(n) all of the books, records, files and other relevant information including
all electronically stored information and documents relating to the
Business, the Purchased Assets and the Assumed Liabilities including lists
of customers, suppliers, employees, agents and distributors;
(o) a deed of substitution in a form satisfactory to the lessor of motor
vehicles used by the Seller Employees pursuant to which the Buyer will
succeed to the obligations of the Seller in relation to novated leases of
such motor vehicles;
(p) (in the event that Closing occurs prior to the commencement of the Year
2000 Sydney Olympic Games) a side letter pursuant to which the Seller will
transfer to the Buyer an entitlement to certain Sydney Olympics hospitality
packages;
(q) duly executed deeds of variation of each of the Supply Agreements extending
the term of each Supply Agreement to December 31, 2001;
(r) duly executed deeds of assignment, in favor or Buyer, of each of the Supply
Agreements; and
(s) such other certificates and documents as Buyer or its counsel may
reasonably request to effect a transfer of the Purchased Assets.
Section 4.3. Documents to be Delivered to Seller
-----------------------------------
At the Closing, Buyer shall, in addition to the payment under Section 3.1 above,
-----------
deliver to Seller:
(a) a certificate of Buyer in a form reasonably satisfactory to Seller
certifying as to the accuracy of the Buyer's representations and warranties
at and as of the Closing and that Buyer has performed and complied with all
of the terms, provisions and conditions to be performed and complied with
by Buyer at or before the Closing;
(b) a certificate of the secretary or an assistant secretary of Buyer in a form
reasonably satisfactory to Seller, dated the Closing Date, certifying as
to: (i) Buyer's Memorandum and Articles of Association; (ii) the
resolutions of Buyer's board of directors authorizing the execution and
performance of this Agreement and the transactions contemplated hereby; and
(iii) incumbency and signatures of the officers executing this Agreement
and any Buyer Ancillary Agreement;
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<PAGE>
(c) (in the event that Closing occurs prior to the commencement of the Year
2000 Sydney Olympic Games) an acknowledgement of the side letter referenced
in Section 4.2(p) pursuant to which Buyer will accept the transfer of
entitlement to certain Sydney Olympics hospitality packages and undertake
to meet all costs and expenses of any kind associated with such packages
and indemnify the Seller accordingly; and
(d) such other certificates and documents as Seller or its counsel may
reasonably request to effect closing of this transaction.
Section 4.4. Form of Documents
-----------------
The documents and instruments referred to in Sections 4.2 and 4.3 shall be
------------- ----
satisfactory as to form to counsel for the party to whom they are delivered.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
Section 5.1. Organization
------------
Seller is a corporation duly organized, validly existing and in good standing
under the laws of the State of Victoria in the case of Pacific Dunlop Limited,
New South Wales in the case of GNB Battery Technologies Limited and The
Australian Capital Territory in the case of Australian Battery Company (Aust.)
Pty Ltd. Seller is not in violation of any provision of its Memorandum and
Articles of Association. Seller is duly qualified or licensed to do business
and is in good standing as a foreign corporation in each of the jurisdictions
specified in Schedule 5.1. Seller is not required in relation to the Business
------------
to be qualified or licensed to do business as a foreign corporation in any
jurisdiction other than those specified in Schedule 5.1, except for those
------------
jurisdictions where the failure to so qualify is not likely to have a Material
Adverse Effect or hinder or impair the ability of Seller to consummate the
transactions contemplated by this Agreement or the Seller Ancillary Agreements.
Section 5.2. Power and Authority; Agreement Binding
--------------------------------------
Seller has all requisite corporate power and authority to execute and deliver
this Agreement and the Seller Ancillary Agreements and to perform its
obligations hereunder and thereunder, to own or hold under lease its properties
and assets, to carry on the Business as currently conducted, and to operate the
properties and assets now being operated by it in relation to the Business.
Seller's execution of this Agreement has been duly authorized and approved by
all necessary corporate action. This Agreement has been and the Seller
Ancillary Agreements will be duly executed and delivered by Seller and, assuming
due authorization, execution, and delivery by Buyer, is and will be the legal,
valid and binding obligation of Seller enforceable against Seller in accordance
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with their respective terms, subject to general principles of equity and except
as enforceability may be limited by applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium or other similar laws of general
application relating to creditors' rights generally.
Section 5.3. Absence of Conflicts
--------------------
Except as set forth in Schedule 5.3, the execution, delivery and performance of
------------
this Agreement and the Seller Ancillary Agreements, and the consummation of the
transactions contemplated hereby and thereby, will not:
(a) conflict with, result in a breach of the terms, conditions or provisions
of, or constitute a default, an event of default or an event creating
rights of acceleration, termination or cancellation, or result in the
termination of or result in the creation or imposition or crystallisation
of any Encumbrance upon the Purchased Assets or Assumed Liabilities under:
(i) any note, instrument, contract, agreement, mortgage, indenture, lease,
license or franchise to which Seller or any Affiliate of Seller is a party
or by which it or any of its assets is bound; (ii) any Court Order; or
(iii) any Requirements of Law; except for any of the foregoing which,
individually or in the aggregate, is or are not likely to have a Material
Adverse Effect or hinder or impair the consummation of the transactions
contemplated hereby or by the Seller Ancillary Agreements; or
(b) require the approval, consent, authorization or act of, or the making by
Seller or any Affiliate of Seller of any declaration, notification, filing
or registration with any Person, except as contemplated in Sections 7.2,
8.1(i) and 8.2(j), except for any of the foregoing which, individually or
in the aggregate, if not taken, is or are not likely to have a Material
Adverse Effect or materially hinder or impact the consummation of the
transactions contemplated by this Agreement.
Section 5.4. No Litigation
-------------
Except as set forth in Schedule 5.4, there is no Action pending or, to the
------------
Knowledge of the Seller, threatened against Seller in relation to the Business
and there has not been, to the knowledge of the Seller, any claim asserted by
any person that could lead to an Action. The Seller is not, in relation to the
Business subject to any currently pending Court Order. Except as set forth in
Schedule 5.4, to the Knowledge of the Seller, there is no Action pending or
------------
threatened against any officer or director of the Seller arising out of his or
her service in connection with the Business.
Section 5.5. No Violation
------------
Except as set forth in Schedule 5.5, Seller has complied and is in compliance
-------------
with all Court Orders and Requirements of Law which are applicable to Seller in
relation to the Business,
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except for such Requirements of Law as to which noncompliance is not likely to
have a Material Adverse Effect.
Section 5.6. Operations Since June 30, 1999
------------------------------
(a) Except as set forth in Schedule 5.6(A), since June 30, 1999, or except as
---------------
reflected in the March 31, 2000 Balance Sheet, there has been no material
adverse change in the Business or Purchased Assets or Assumed Liabilities,
taken as a whole. The termination of any Intercompany Agreement not listed
on Schedule 7.4 will not have a Material Adverse Effect.
------------
(b) Except as set forth in Schedule 5.6(B), or except as reflected in the March
---------------
31, 2000 Balance Sheet, since June 30, 1999, Seller has conducted the
Business only in the ordinary course. Specifically, since June 30, 1999,
except as set forth in Schedule 5.6(B), Seller has not in relation to the
---------------
Business:
(i) made any material change in operations;
(ii) made any capital expenditure or entered into any contract or
commitment therefor in excess of the capital expenditures disclosed
in the "Fiscal Year 2000 Open Sanction Summary" attached to Schedule
--------
5.7(B) to the Principal US Agreement;
------
(iii) sold, leased (as lessor), transferred or otherwise disposed of, or
imposed or suffered to be imposed any Encumbrance on, any of the
Purchased Assets, except for inventory and other personal or real
property sold, leased or otherwise disposed of for fair value in the
ordinary course of business consistent with past practice and except
for Permitted Encumbrances;
(iv) cancelled any debts owed to or claims held (including the settlement
of any Action) other than in the ordinary course of business
consistent with past practice;
(v) created, incurred or assumed, or agreed to create, incur or assume,
any indebtedness for borrowed money or entered into, as lessee, any
finance lease obligations as defined in AASB 1008 or guaranteed any
such indebtedness or leases of others or made any loans other than in
the ordinary course of business consistent with past practice;
(vi) written off as uncollectible or accelerated or delayed collection of
notes or accounts receivable in advance of or beyond their regular
due dates or the dates when the same would have been collected other
than in the ordinary course of business consistent with past practice
(vii) delayed or accelerated payment of any accounts payable or other
liabilities of Seller beyond or in advance of their due date or the
date when such liabilities
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would have been paid other than in the ordinary course of
business consistent with past practice; or
(viii) made any increases in the current wages, bonuses, and benefits of
its employees (other than any increases made in the ordinary
course of business consistent with past practice);
(ix) entered into or except as set forth in Schedule 5.14(A) amended
----------------
any employment, severance or similar agreement or arrangement or
made any increases in the current wages, bonuses and benefits of
its employees (other than any increases made in the ordinary
course of business consistent with past practice);
(x) waived any rights or settled any claims, except for such waivers
or settlements granted or entered into in the ordinary course of
business;
(xi) made any change in any method of accounting;
(xii) suffered or incurred any damage, destruction, fire, explosion,
accident, flood or other casualty, loss or act of God (whether or
not covered by insurance) to any material operating asset or
group of operating assets;
(xiii) entered into or amended any purchase or sale contract outside the
ordinary course of business;
(xiv) suffered any amendment, termination, suspension or revocation of
any Governmental Permit;
(xv) joined any new or amended or modified any already existing
superannuation fund applicable to the Employees;
(xvi) amended its memorandum or articles of association;
(xvii) manufactured inventory in excess of its expected need; or
(xviii) where applicable, agreed to do any of the foregoing.
Section 5.7. Taxes
-----
Except as set forth in Schedule 5.7:
------------
(a) Seller has accurately prepared and timely filed (including all extensions)
all Tax Returns to the extent they relate to the Business.
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(b) All such Tax Returns have been prepared in compliance with applicable
Requirements of Law, to the extent they relate to the Business, are true
and correct and properly reflect the Taxes due for the periods covered
thereby.
(c) All Taxes due and payable by Seller in relation to the Business have been
properly paid.
(d) Seller has not in relation to the Business waived any law or regulation
fixing, or consented to the extension of, any period of time for assessment
of any Taxes which waiver or consent is currently in effect nor requested
or been granted an extension of time for filing any Tax Return which has
not yet been filed.
(e) There are no material elections, consents or agreements in relation to the
Business with tax authorities other than those reflected on tax forms filed
with tax authorities.
Section 5.8. Title to Assets
---------------
Seller is the exclusive and absolute owner and has good title to or a valid
leasehold interest in, all of the personal property included in the Purchased
Assets free and clear of all Encumbrances, except for: (a) Permitted
Encumbrances; (b) the lien of current taxes not yet due and payable, and (c)
other exceptions disclosed in Schedule 5.8. Except as disclosed in Schedule
------------ --------
5.8, the personal property included in the Purchased Assets is useable in the
---
ordinary course of business of the Business and conforms to all Requirements of
Law relating to its construction, use and operation, except where such
nonconformity is not likely to have a Material Adverse Effect.
Section 5.9. Real Property
-------------
(a) Schedule 5.9(A) contains a complete and accurate list, including a brief
---------------
description of each freehold property used in the Business currently owned
by Seller (the "Owned Real Property") in respect of which Seller represents
that except as set out in Schedule 5.9(A):
---------------
(i) Seller is in possession of such property and will by the Closing Date
be the absolute and exclusive owner of the Owned Real Property free
and clear of all Encumbrances except for Permitted Encumbrances;
(ii) Seller has the legal right to sell such property and has not
previously sold, leased, licensed or granted any option to purchase or
lease affecting such property.
(b) Schedule 5.9(B) sets forth a complete and accurate list, including a brief
---------------
description of the material terms of all material leases, subleases or
similar agreements providing for the use of real property under which
Seller is lessee of, or holds or operates, any real property owned by any
third Person (the "Leased Real Property") and used in connection with the
Business. The Owned Real Property and the Leased Real Property are
collectively referred to herein as the "Real Property."
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(c) The occupation, possession and use of the Leased Real Property by Seller
has not been disturbed and, to the Knowledge of the Seller, no claim has
been asserted or threatened which is adverse to the rights of Seller to the
continued occupation, possession and use of the Leased Real Property, as
currently utilized.
(d) With respect to each such parcel of Owned Real Property, except as
disclosed on Schedule 5.9(A): (i) there are no outstanding options or
---------------
rights of first refusal of third parties with respect to the purchase,
lease or use of any such property or any portion thereof or any interest
therein (other than the right of Buyer pursuant to this Agreement); and
(ii) the current use of the Owned Real Property does not violate in any
material respect any instrument of record or agreement affecting such Owned
Real Property.
Section 5.10. Personal Property
-----------------
Schedule 5.10 contains a list of all machinery, equipment, and vehicles owned by
-------------
Seller in relation to the Business having an original cost of A$176,000 or more.
Section 5.11. Personal Property Leases
------------------------
Schedule 5.11 contains a brief description of each lease or other agreement or
-------------
right, whether written or oral, (including in each case the annual rental, the
expiration date thereof and a brief description of the property covered) under
which Seller is lessee of, or holds or operates, any machinery, equipment, or
vehicle owned by a third Person and used in connection with the Business, except
those which are terminable by Seller without cost or penalty on 30 days' or less
notice or which provide for annual rentals of less than A$176,000.
SECTION 5.12. Governmental Permits
--------------------
(a) Except as disclosed in Schedule 5.12(A), Seller owns, holds or possesses
---------------
all material licenses, certificates, franchises, permits, privileges,
immunities, approvals and other authorizations from a Governmental Body
which are necessary to entitle it to own or lease, operate and use its
assets and conduct the Business substantially as currently operated (herein
collectively called "Governmental Permits"). Notwithstanding the
foregoing, Governmental Permits required under Environmental Laws are
addressed solely in Schedule 5.18(B).
---------------
(b) Except as set forth in Schedule 5.12(B): (i) Seller has fulfilled and
----------------
performed its obligations under each of the Governmental Permits, except
for such nonfulfillment or nonperformance which is not likely to have a
Material Adverse Effect; and (ii) no written notice of cancellation,
revocation, suspension or default or of any dispute concerning any
Governmental Permit has been received by Seller and, to the Knowledge of
the Seller, there is no basis for the issuance of such notice except as a
result of the consummation of
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the transactions contemplated hereby or except as is not likely to have a
Material Adverse Effect.
Section 5.13. Intellectual Property
---------------------
(a) Except as set forth on Schedule 5.13(A), there are no material patents,
----------------
patent applications, trademarks or trademark registrations, service marks
or service mark registrations, trade names, Internet domain names, business
names, or any applications to register any of the foregoing, copyrights,
licenses to or from any Person with respect to any of the foregoing used by
Seller in the Business substantially as currently conducted.
(b) Each item constituting part of the Intellectual Property has been, to the
extent indicated in Schedule 5.13(A), duly registered, filed or issued, as
----------------
the case may be, as is indicated in Schedule 5.13(A), and such
----------------
registrations, filings and issuances remain in full force and effect.
(c) Except as set forth on Schedule 5.13(C), Seller owns and possesses all
----------------
right, title and interest in and to the Intellectual Property, and has not
received written notice of any claim by any Person contesting the validity,
enforceability, use, or ownership of any Intellectual Property patent
disclosures or inventions or asserting that the Seller is infringing the
intellectual property rights of others. Schedule 5.13(C) sets forth all
----------------
technology (including Intellectual Property) owned by third parties and
used by Seller in the Business. To the Knowledge of the Seller, except as
set forth in Schedule 5.13(C), no Person is infringing the rights of the
---------------
Seller with respect to any Intellectual Property. Seller uses all
reasonable efforts to protect its trade secrets relating to the Business.
Section 5.14. Employees
---------
(a) Except as described in Schedule 5.14(A), Seller is not a party to or bound
----------------
by any collective bargaining agreement, employment agreement, severance
agreement, consulting, independent contractor or service agreement,
deferred compensation agreement, confidentiality agreement or covenant not
to compete which is material to the Business.
(b) Except as set forth in Schedule 5.14(B): In connection with the Business
----------------
(i) Seller is in compliance with all applicable Requirements of Law with
respect to labor and employment, including employment practices, terms and
conditions of employment and wages, overtime pay, and hours, except for
such noncompliance as is not likely to have a Material Adverse Effect; (ii)
Seller has not engaged in any unfair labor practice or illegally
discriminated with regard to any aspect of employment on the basis of any
legally prohibited category or classification; (iii) with respect to
employees and former employees who rendered services to, or participated in
conduct or activities in connection with Seller, Seller is not liable for
any arrears of wages, salaries or other payments; and
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(iv) the Seller is not aware of any threatened or pending dispute between
the Seller and any employee or group of employees, and is not involved in
any industrial or trade dispute.
Section 5.15. Superannuation
--------------
(a) The superannuation schemes listed in paragraphs (a) and (b) of part (1) of
Schedule 5.15 are the only employer sponsored superannuation schemes or
-------------
pension arrangements to which Seller pays contributions in respect of the
Transferring Employees.
(b) The copies of the Governing Rules and member booklets and/or information
provided to members of each of the Seller's Funds supplied to Buyer on or
before the date of this Agreement are true and complete copies.
(c) Seller has paid all contributions due by Seller to the relevant Seller's
Fund in respect of the Transferring Employees.
(d) There are sufficient assets in each of the Seller's Funds to support the
transfer of the total Accrued Benefit Values of the Transferring Members.
(e) Except for its commitment to contribute to the Seller's Fund, Seller has no
obligation, liability or duty to make any payment to any person in respect
of any superannuation, retirement benefits, pensions, annuities, life
assurance schemes or arrangements for the benefit of any Transferring
Employee.
Section 5.16. Contracts
---------
Except as set forth in Schedule 5.16(A), in connection with the Business, Seller
----------------
is not a party to or bound by:
(a) any consignment, distributor, dealer, manufacturer's representative, sales
agency, advertising representative or advertising or public relations
contract, agreement or commitment which is reasonably anticipated by Seller
to involve the payment of more than One Hundred and Seventy Six Thousand
Australian dollars (A$176,000) per year;
(b) any contract, agreement or commitment regarding the sale or other
disposition of products or services by Seller or for the purchase of raw
materials, products or services by Seller which is reasonably anticipated
by Seller to involve the receipt or payment of more than One Hundred and
Seventy Six Thousand Australian dollars (A$176,000) per year;
(c) any guarantee or indemnification agreement for the benefit of any Person
made or given outside of the ordinary course of business;
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(d) any contract, agreement or commitment which provides for the incurrence by
Seller of indebtedness for borrowed money or capitalised lease obligations;
or
(e) any partnership or joint venture agreement.
(f) any agreement, contract or commitment relating to capital expenditures of
an amount or value in excess of One Hundred and Seventy Six Thousand
Australian dollars (A$176,000) in relation to the Business;
(g) any agreement that restricts or purports to restrict the business
activities of Seller or limits Seller's ability to engage in any line of
business or compete with any Person in relation to the Business;
(h) any material licence of software or other intellectual property; or
(i) any agreement in relation to the Business that was not entered into in the
ordinary course of the business of the Business consistent with past
practice and that involves annual payments in excess of One Hundred and
Seventy Six Thousand Australian dollars (A$176,000).
Section 5.17. Status of Contracts
-------------------
Except as set forth in Schedule 5.17: (a) each of the leases, contracts and
-------------
other agreements of Seller listed in Schedules 5.9(B), 5.11, 5.13(C), 5.14 and
---------------- ---- ------- ----
5.16 (collectively, the "Seller Agreements") constitutes a legal, valid and
----
binding obligation of Seller (subject to bankruptcy, insolvency, reorganization,
moratorium and similar laws of general application relating to or affecting
creditors' rights and to general equity principles) and is in full force and
effect; and (b) Seller is not, or, to the Knowledge of the Seller, alleged to
be, in material breach of, or material default under, any of the Seller
Agreements nor, to the Knowledge of the Seller, is any other party thereto in
such breach or default and, to the Knowledge of the Seller, no event has
occurred which the notice or lapse of time would constitute such a breach or
default or permit termination, modification or acceleration of any of the Seller
Agreements.
Section 5.18. Environmental Matters
---------------------
Notwithstanding any other provision of this Agreement, this Section 5.18
------------
contains the only representations or warranties of Seller with respect to
Environmental Law or Environmental matters, and no other statement in this
Agreement, in any Seller Ancillary Agreement or in any other document or
information delivered or given to or received by or on behalf of Buyer in
connection with the transactions contemplated by this Agreement shall be deemed
to be a representation or warranty relating to Environmental Law or
Environmental matters.
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(a) Except as set forth in Schedule 5.18(A), Seller is, in relation to the
---------------
Business, in compliance with all applicable Environmental Laws except for
such noncompliance as is not likely to have a Material Adverse Effect.
(b) Except as set forth in Schedule 5.18(B), Seller owns, holds or possesses
---------------
all material Governmental Permits required under Environmental Laws
necessary for the occupation and use of the Real Property and the operation
of the Business substantially as currently conducted. All Governmental
Permits required under Environmental Laws that are currently owned, held or
possessed by Seller in relation to the Business are listed in Schedule
--------
5.18(B). Except as set forth in Schedule 5.18(B) the Seller is in
------ ----------------
compliance and has for the past three (3) years complied, with all
Governmental Permits except for such non-compliance as is not likely to
have a Material Adverse Effect. Seller shall make commercially reasonable
efforts to transfer or cause to be transferred to Buyer all such
Governmental Permits at the Closing Date including:
(i) giving notice to Federal, State or Local regulatory agencies with
respect to the change in ownership or control or responsible
officials at the Real Property;
(ii) completing and submitting notices of termination; and
(iii) to the extent not transferred by the Closing Date, shall cooperate
fully with Buyer in obtaining the transfer of such Governmental
Permits as promptly thereafter as possible.
(c) Except as set forth in Schedule 5.18(C), Seller is not, in relation to the
----------------
Business, subject to any pending or, to the Knowledge of the Seller
Regarding Environmental Matters, threatened investigation by, order from,
claim by, statutory request for information from, or continuing agreement
with any Person respecting: (i) any violation of Environmental Law or
Governmental Permits, (ii) any Remedial Action, or (iii) any claim of
Losses and Expenses, in each case arising from the Release or threatened
Release of a Contaminant or the presence of any Contaminant on, in, at or
beneath the Real Property or the migration of any Contaminant onto or from
the Real Property.
(d) Except as set forth in Schedule 5.18(D), Seller is not, in relation to the
---------------
Business, subject to any pending or, to the Knowledge of the Seller
Regarding Environmental Matters, threatened judicial or administrative
investigation, proceeding, order, notice of violation judgment, decree or
settlement with any continuing obligation alleging or relating to a
violation of or liability under any Environmental Law or Governmental
Permits.
(e) Except as set forth in Schedule 5.18(E):
---------------
(i) Seller has not, in relation to the Business reported a Release
pursuant to an Environmental Law;
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(ii) Seller has not, in relation to the Business filed a notice with
respect to the Contamination of land or the generation of hazardous
wastes that is required to be filed pursuant to an Environmental
Law; or
(iii) to the Knowledge of the Seller Regarding Environmental Matters,
there has not been any disposal by Seller or Release of any
Contaminants on, at, in, or beneath any Real Property.
(f) Except as set forth in Schedule 5.18(F), Seller has not received written
----------------
notice under any Environmental Law to the effect that it is or may be
liable to any Person as a result of the generation, storage,
transportation, Release, arrangement for disposal or disposal of any
Contaminants on, at or, in any Real Property.
(g) Except as set forth in Schedule 5.18(G), to the Knowledge of the Seller
---------------
Regarding Environmental Matters, there are no underground storage tanks
(whether active or abandoned) located at, in, or beneath the Real Property.
(h) Except as disclosed in the Schedules to Section 5.18, to the Knowledge of
------------
the Seller Regarding Environmental Matters, as of the Closing Date, there
is no condition existing on the premises constituting the Owned Real
Property or Leased Real Property that will give rise to any liability of
Seller under any Environmental Laws.
(i) Seller has made available to Buyer true and correct copies of all material
environmental audits and consultant's reports relating to the past and
current operations, properties and facilities of the Seller with respect to
the Business, or any of its respective predecessors, which are in its
possession under its reasonable control.
(j) To the Knowledge of the Seller Regarding Environmental Matters, the sites
identified on Schedule 5.18(J) constitute, and as such Schedule is updated
----------------
by Seller from time to time in its sole discretion prior to the Closing
Date, will constitute all PRP Sites as of the Closing Date.
(k) Notwithstanding any other provision of this Agreement, no representations
and warranties are made or shall be deemed to apply to the PRP Sites.
Section 5.19. Insurance
---------
Seller has, and at all times has had, valid insurance coverage in respect of the
Business against all risks normally insured against by persons in the same
industry, underwritten by one or more well-established and reputable insurers or
adequately capitalised Affiliates. Schedule 5.19 contains a list of all
-------------
insurance policies (specifying (i) the insurer, (ii) the amount of the coverage,
(iii) the type of insurance, (iv) the policy number and (v) any currently
pending claims thereunder) maintained by or on behalf of Seller in connection
with the Business or the
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Purchased Assets. Seller has not failed to give any notice or present any claim
under any insurance policy in due and timely fashion.
Section 5.20. Product Warranties
------------------
All of Seller's unexpired, express product warranties with respect to any
product that it manufactures or sells in connection with the Business or that it
has heretofore manufactured or sold in connection with the Business are set
forth in Schedule 5.20. Seller has not received written notice of any claim
-------------
and, to the Knowledge of the Seller, there are no threatened claims against the
Seller in relation to the Business based on any product warranty (except claims
outstanding as of June 30, 1999, not exceeding the Australian dollar equivalent
of US$200,000).
Section 5.21. No Advisor
----------
Neither Seller nor any Affiliate of Seller nor any Person acting on its or their
behalf, has retained any advisor, broker, investment banker or financial advisor
in connection with this Agreement or any transaction contemplated hereby for
which the Buyer may be liable.
Section 5.22. Accounts and Records
--------------------
All the accounts, books, ledgers and financial and other material records of the
Business have been maintained accurately and in accordance with generally
accepted accounting practices.
Section 5.23. No Misrepresentation
--------------------
To the Knowledge of the Seller, the representations and warranties of Seller
contained in this Agreement, the Disclosure Schedules attached hereto, and the
certificates and other instruments delivered by Seller pursuant hereto, do not
contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements contained herein or therein not misleading.
Section 5.24. Purchased Assets
----------------
The Purchased Assets comprise all of the assets now utilized by the Seller which
are necessary to enable the Business to be carried on immediately after Closing
in substantially the same manner as immediately before the date of this
Agreement.
Section 5.25. Material Consents
-----------------
Except for the Material Consents, there are no other consents or approvals
required by the Seller to consummate this Agreement which, if not obtained,
would have a material and adverse effect on the ability of the Buyer to conduct
the Business immediately after Closing in substantially the same manner as
immediately before the date of this Agreement.
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Section 5.26. Powers of Attorney
------------------
As of Closing, there will not be any outstanding powers of attorney executed on
behalf of Seller other than with respect to the filing of taxes, customs and
similar matters and intellectual property registrations.
ARTICLE VI.
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Seller as follows:
Section 6.1. Organization
------------
Buyer is a corporation duly organized, validly existing and in good standing
under the laws of the State of New South Wales. Buyer is not in violation of
any provision of its Memorandum and Articles of Association or Constitution.
Buyer is duly qualified to do business and is in good standing as a foreign
corporation in each of the jurisdictions in which Buyer's operations require
that it qualify to transact business as a foreign corporation, except for those
jurisdictions where the failure to so qualify is not likely to have a material
adverse effect on Buyer's business or financial condition or the ability of
Buyer to lawfully consummate the transactions contemplated by this Agreement in
all material respects.
Section 6.2. Power and Authority
-------------------
Buyer has the full corporate power and authority to execute and deliver this
Agreement and the Buyer Ancillary Agreements, to perform its obligations
hereunder and thereunder, and to own and lease its property and conduct its
operations as currently conducted. Buyer's execution, delivery and performance
of this Agreement has been duly authorized and approved by all necessary
corporate action.
Section 6.3. Agreement Binding
-----------------
This Agreement and the Buyer Ancillary Agreements have been duly executed and
delivered by Buyer, and assuming due authorization, execution and delivery by
Seller, is and will be the legal, valid and binding obligation of Buyer
enforceable in accordance with their respective terms, subject to general
principles of equity and except as enforceability may be limited by applicable
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other
similar laws of general application relating to creditor's rights generally.
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Section 6.4. Absence of Conflicts
--------------------
The execution, delivery and performance of this Agreement and the Buyer
Ancillary Agreements and the consummation of the transactions contemplated
hereby and thereby will not:
(a) conflict with, result in a breach of the terms, conditions or provisions
of, or constitute a default, an event of default or an event creating
rights of acceleration, termination or cancellation, result in termination
of or result in the creation or imposition of any Encumbrance under: (i)
any term or provision of the Memorandum and Articles of Association of
Buyer or Constitution, (ii) any note, instrument, contract, agreement,
mortgage, indenture, lease, license or franchise to which Buyer is a party
or by which it or any of its assets are bound, (iii) any Court Order, or
(iv) any Requirements of Law; except in each case, for any of the foregoing
which, individually or in the aggregate, is or are not likely to have a
material adverse effect on Buyer or its business taken as a whole or hinder
or impair the consummation of the transactions contemplated hereby; or
(b) require the approval, consent, authorization or act of, or the making by
Buyer of any declaration, notification, filing or registration with, any
Person, except in each case, for any of the foregoing which, individually
or in the aggregate, if not taken, is or are not likely to have a material
adverse effect on Buyer or its business taken as a whole or materially
hinder or impair the consummation of the transactions contemplated hereby.
Section 6.5. No Litigation
-------------
There is no Action pending or, to the knowledge of Buyer, threatened which
questions the legality or propriety of the transactions contemplated by this
Agreement or the Buyer Ancillary Agreements or which would impair the
consummation of the transactions contemplated hereby and there has not been to
the knowledge of Buyer, any claim asserted by any Person that could lead to such
an Action.
Section 6.6. No Advisor
----------
Neither Buyer nor any Person acting on its behalf has retained any advisor,
broker, investment banker or financial advisor in connection with this Agreement
or any transaction contemplated hereby for which Seller may be liable.
Section 6.7. No Misrepresentation
--------------------
To the knowledge of Buyer, the representations and warranties of Buyer contained
in this Agreement and the certificates and other instruments delivered by Buyer
pursuant hereto do not include any untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements made not
misleading.
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ARTICLE VII.
ACTION PRIOR TO THE CLOSING DATE
Buyer and Seller covenant and agree to take the following actions between the
date hereof and the Closing Date:
Section 7.1. Preserve Accuracy of Representations and Warranties
---------------------------------------------------
Buyer and Seller shall refrain from taking any action that would render any
representation or warranty contained in this Agreement inaccurate as of the
Closing Date. Buyer and Seller shall promptly notify the other of any Action,
investigation, or other proceeding, that shall be instituted or threatened
against such party to restrain, prohibit or otherwise challenge the legality of
any transaction contemplated by this Agreement.
Section 7.2. Consents of Third Parties; Governmental Approvals
-------------------------------------------------
(a) Seller and Buyer shall act diligently and reasonably to secure, before the
Closing Date, the Material Consents and the consent, approval or waiver
from any party to any Seller Agreement required to be obtained in
contemplation or as a result of the transactions contemplated hereby to
secure for Buyer the Seller's rights thereunder. Buyer shall cooperate
with Seller in securing such consents, approvals and waivers.
(b) During the period prior to the Closing Date, Seller and Buyer shall act
diligently and reasonably, and shall cooperate with each other, to secure
(i) any consents and approvals of any Governmental Body required to be
obtained in order to effect the consummation of the transactions
contemplated by this Agreement and (ii) the transfer or grant to Buyer of
all Governmental Permits required to allow Buyer to conduct the Business.
(c) To the extent that any of the consents, approvals or waivers referred to in
Section 7.2(a) or (b) (other than Material Consents) have not been obtained
-------------- ---
as of the Closing Date then upon request by Buyer, for a period ending on
31 March 2001, Seller shall use its best efforts, with Buyer reimbursing
Seller for its out-of-pocket expenses and indemnifying and holding harmless
Seller for any liabilities or obligations incurred by it, to:
(i) hold the benefit of the Seller Agreement and any other consents,
approvals or waivers in question for the benefit of the Buyer and
fully cooperate with Buyer in any reasonable and lawful arrangements
(including any arrangements to subcontract the relevant Seller
Agreement to Buyer) designed to provide for Buyer the benefit of the
relevant Seller Agreement and any other consents, approvals or
waivers; and
(ii) fully cooperate with Buyer in enforcing any and all rights of Seller
arising under the relevant Seller Agreement and any other consents,
approvals or waivers.
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If after the above referenced period ending on 31 March 2001, any consents,
approvals or waivers have not been obtained, Buyer and Seller will cooperate in
any commercial reasonable arrangement to obviate the need for such consent,
approval or waiver, all at Buyer's expense.
Section 7.3. Operations Prior to the Closing Date
------------------------------------
(a) During the period prior to the Closing Date, Seller shall conduct the
Business only in the ordinary course and substantially as operated prior to
the date hereof.
(b) Notwithstanding Section 7.3(a), except as set forth in Schedule 7.3, as
-------------- ------------
expressly contemplated by this Agreement, or with the express prior written
consent of Buyer, Seller shall not take any of the actions set forth in
Section 5.6(b); provided, however, notwithstanding anything to the contrary
--------------
herein, Seller will not make, and since 9 May 2000 has not made, any
capital expenditure in excess of the local currency equivalent of
US$250,000 (other than as permitted by Section 7.3(b) of the Principal US
Agreement) without the prior written approval of Buyer.
Section 7.4. Intercompany Agreements
-----------------------
All of the Intercompany Agreements and intercompany accounts payable and
receivable, except for those set forth on Schedule 7.4, shall be terminated or
------------
canceled at the Closing.
Section 7.5. Notification of Changes
-----------------------
Each of Seller and Buyer shall promptly notify the other of any event that
causes any representation or warranty given by such party in Articles 4, 5 and 6
to become untrue.
Section 7.6. Export Licence
--------------
Following Closing, the parties agree that, to the extent that Buyer is unable to
secure a licence for the export of lead to New Zealand (Special Export Permit No
AUH 995714E issued under the Hazardous Waste (Regulation of Exports and Imports)
Act 1989 (Cth)) ('Export Licence'):
(a) Seller will at the Buyer's expense, use all reasonable efforts to retain,
in its name, its Export Licence existing as at the Closing Date;
(b) following Closing, Buyer will use its best endeavours to obtain an Export
Licence but, subject thereto, the following provisions will apply:
(1) Continuation of Exports - Seller, on Buyer's behalf, will to the
extent permissible, and on the basis that the Buyer provides all
assets and resources of whatsoever nature necessary to achieve this,
continue to export lead to the recycling facility in New Zealand in
accordance with past practice of the Business ('Lead Exporting');
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(2) Reimbursement and Indemnity - Buyer will reimburse Seller for all its
costs and expenses incurred in connection with the Lead Exporting and
will indemnify and hold Seller harmless from and against any and all
Taxes, costs, claims, liabilities or expenses incurred by Seller in
connection with such Lead Exporting.
Section 7.7. Changes to Employment Conditions
--------------------------------
Seller covenants with Buyer to ensure that the warranty in Section 5.6(b)(viii)
--------------------
will not be breached in any material respect between the date of this Agreement
and Closing.
Section 7.8. General
-------
Each of the parties will use its reasonable best efforts to take all action and
to do all things necessary, proper, or advisable in order to consummate and make
effective the transactions contemplated by this Agreement (including
satisfaction, but not waiver, of the closing conditions set forth below).
Section 7.9. Preservation of Business
------------------------
Each of the parties shall use reasonable best efforts to keep their businesses
and properties substantially intact, including their present operations,
physical facilities, working conditions, and relationships with lessors,
licensors, suppliers, customers and employees.
ARTICLE VIII.
CONDITIONS TO CLOSING
Section 8.1. Conditions to the Obligations of the Buyer
------------------------------------------
The obligations of Buyer under this Agreement shall, at the option of Buyer, be
subject to the satisfaction, on or prior to the Closing Date, of each of the
following conditions:
(a) No Misrepresentation or Breach of Covenants and Warranties. Seller shall
----------------------------------------------------------
have complied in all material respects with its covenants and agreements
herein; each of the representations and warranties of Seller contained in
this Agreement shall be true and correct in all material respects on the
Closing Date as though made on the Closing Date (except with respect to
those representations and warranties that speak as to a particular date or
time, which only need be true and correct as of such date or time), except
for changes therein specifically permitted by this Agreement or resulting
from any transaction expressly consented to in writing by Buyer; and there
shall have been delivered to Buyer a certificate to such effect, dated the
Closing Date, signed by a director of Seller.
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(b) Closing Documents. Buyer shall have received from Seller the closing
-----------------
documents contemplated by Section 4.2.
-----------
(c) Necessary Approvals. Seller and Buyer shall have received all approvals
-------------------
and actions of or by all Governmental Bodies any other Person which are
necessary to consummate the transactions contemplated hereby and by the ROW
Agreements.
(d) No Suit. No Action by any Governmental Body shall be pending or threatened
-------
questioning the legality of this Agreement or the consummation of the
transactions contemplated hereby in whole or in part.
(e) No Restraint. No Court Order shall have been issued and be in effect which
------------
restrains or prohibits any material transaction contemplated hereby.
(f) Principal US Agreement. The transactions contemplated by the Principal US
----------------------
Agreement shall have closed simultaneously with the Closing.
(g) No Material Adverse Change. On the Closing Date, there shall not be a
--------------------------
Material Adverse Effect.
(h) Coordinating Agreement. All conditions to Exide Corporation's obligations
----------------------
set forth in Sections 5.5, 5.6 and 5.7(a) of the Coordinating Agreement
----------------- ------
shall have been satisfied.
(i) Foreign Acquisitions and Takeovers Act. All consents required pursuant to
--------------------------------------
the Foreign Acquisitions and Takeovers Act ("FATA") regarding the sale and
purchase of the Purchased Assets under this Agreement shall have been
obtained and, if such consents are given subject to conditions or
requirements, such conditions or requirements must be reasonably acceptable
to the Seller and the Buyer.
For the purposes of this Section 8.1(i), all FATA consents will be deemed
--------------
to have been given:
(i) if a notice is issued pursuant to FATA stating that the Commonwealth
Government does not object to such proposed sale; or
(ii) if notice of such proposed sale is given to the Treasurer pursuant to
FATA and the Treasurer is, by reason of lapse of time, not empowered
to make an order under FATA in relation to such proposed sale.
Buyer must use its best endeavours to satisfy the conditions set out in this
Section 8.1(i) as soon as practicable after execution of this Agreement and the
--------------
Seller will use its best endeavours to assist the Buyer to procure the
fulfillment of the conditions set out in this Section 8.1(i).
--------------
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<PAGE>
Notwithstanding the failure of any one or more of the foregoing conditions,
Buyer may, at its option, proceed with the Closing without satisfaction, in
whole or in part, of any one or more of such conditions and without written
waiver; provided however, that in so proceeding with the Closing, and
notwithstanding any other provision of this Agreement, Buyer shall be deemed to
have waived any such failure and any rights or remedies it may have against
Seller by reason of such failure.
Section 8.2. Conditions to the Obligations of Seller
---------------------------------------
The obligations of Seller under this Agreement shall, at the option of Seller,
be subject to the satisfaction, on or prior to the Closing Date, of each of the
following conditions:
(a) No Misrepresentation or Breach of Covenants and Warranties. Buyer shall
----------------------------------------------------------
have complied in all material respects with its covenants and agreements
herein; each of the representations and warranties of Buyer contained in
this Agreement shall be true and correct in all material respects on the
Closing Date as though made on the Closing Date (except with respect to
those representations and warranties that speak as to a particular date or
time, which only need be true and correct as of such date or time), except
for changes therein specifically permitted by this Agreement or resulting
from any transaction expressly consented to in writing by Seller; and there
shall have been delivered to Seller a certificate to such effect, dated the
Closing Date and signed by the President or a Vice President of Buyer.
(b) Closing Documents. Seller shall have received from Buyer the closing
-----------------
documents contemplated by Section 4.3.
-----------
(c) Payment of Purchase Price. Buyer shall have tendered payment of the
-------------------------
Purchase Price.
(d) Necessary Approvals. Seller and Buyer shall have received all approvals
-------------------
and actions of or by all Governmental Bodies and any other Person which are
necessary to consummate the transactions contemplated hereby and by the ROW
Agreements.
(e) No Suit. No Action by any Governmental Body shall be pending or threatened
-------
questioning the legality of this Agreement or the consummation of the
transactions contemplated hereby in whole or in part.
(f) No Restraint. No Court Order shall have been issued and be in effect which
------------
restrains or prohibits any material transaction contemplated hereby.
(g) Principal US Agreement. The transactions contemplated by the Principal US
----------------------
Agreement shall have closed simultaneously with the Closing.
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<PAGE>
(h) No Material Adverse Change. On the Closing Date, there shall have been no
--------------------------
event, occurrence or condition (other than as a result of general economic
conditions or events affecting the automotive and industrial battery
business as a whole) which has, or could reasonably be expected to have, a
material adverse effect on the financial condition, assets, results or
operations, businesses, or operations of Buyer taken as a whole.
(i) Coordinating Agreement. All conditions to Pacific Dunlop Holdings (USA)
----------------------
Inc.'s obligations set forth in Sections 5.5 and 5.7(b) of the Coordinating
------------ ------
Agreement shall have been satisfied.
(j) Foreign Acquisitions and Takeovers Act. All consents required pursuant to
--------------------------------------
the Foreign Acquisitions and Takeovers Act ("FATA") regarding the sale and
purchase of the Purchased Assets under this Agreement shall have been
obtained and, if such consents are given subject to conditions or
requirements, such conditions or requirements must be reasonably acceptable
to the Seller and the Buyer.
For the purposes of this Section 8.2(j), all FATA consents will be deemed
--------------
to have been given:
(i) if a notice is issued pursuant to FATA stating that the Commonwealth
Government does not object to such proposed sale; or
(ii) if notice of such proposed sale is given to the Treasurer pursuant to
FATA and the Treasurer is, by reason of lapse of time, not empowered
to make an order under FATA in relation to such proposed sale.
Buyer must use its best endeavours to satisfy the conditions set out in this
Section 8.2 (j) as soon as practicable after execution of this agreement and the
---------------
Seller will use its best endeavours to assist the Buyer to procure the
fulfillment of the conditions set out in this Section 8.2(j).
--------------
Notwithstanding the failure of any one or more of the foregoing conditions,
Seller may, at its option, proceed with the Closing without satisfaction, in
whole or in part, of any one or more of such conditions and without written
waiver; provided however, that in so proceeding with the Closing, and
notwithstanding any other provision of this Agreement, Seller shall be deemed to
have waived any such failure and any rights or remedies it may have against
Buyer by reason of such failure.
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ARTICLE IX.
ADDITIONAL AGREEMENT OF THE PARTIES
Section 9.1. Conveyance and Transfer of Owned Real Property
----------------------------------------------
(a) Seller acknowledges that before signing this Agreement, Buyer has received
all information and documentation required by law in relation to a contract
for sale of the Owned Real Property and Buyer acknowledges that it has
received the documents listed in Schedule 5.9(A).
---------------
(b) Buyer agrees in relation to the Owned Real Property that:
(i) land offered for sale and inspected by Buyer is identical with the
land described in the certificate of title listed in the description
of the Owned Real Property;
(ii) it must not ask Seller to amend title or pay for title to be
amended;
(iii) it must not make any requisition, objection or claim including,
without limitation, as to any compensation for any alleged
misdescription of the property or any deficiency in its area or
measurements; and
(iv) subject to the warranties and representations set out in Article 5,
all other representations and warranties in relation to the Owned
Real Estate are excluded to the full extent permitted by law.
(c) At the Closing, Seller shall deliver certificates of title and other
documents necessary subject to stamping and registration, to transfer legal
and beneficial ownership of the Owned Real Property, free and clear of all
Encumbrances except for Permitted Encumbrances and other matters described
in the Disclosure Schedules.
Section 9.2. Taxes
-----
(a) Except to the extent reflected as a current liability on the Final Closing
Date Balance Sheet, Seller shall be liable for and shall pay all Taxes
(whether assessed or unassessed) applicable to the Business or the
Purchased Assets, in each case attributable to all periods through to the
Closing Date Buyer shall be liable for and shall (i) reimburse to Seller
(in accordance with Section 9.2(b)) all Taxes reflected as a current
--------------
liability on the Final Closing Date Balance Sheet, and (ii) pay all Taxes
(whether assessed or unassessed) applicable to the operation of the
Purchased Assets, in each case attributable to periods beginning after the
Closing Date.
(b) Within 30 days of the final determination and agreement of the Final
Closing Date Balance Sheet in the manner provided in Section 2.1 of the
-----------
Coordinating Agreement, Buyer agrees to pay to Seller (or as Seller directs
in writing to Buyer) an amount which
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<PAGE>
equals the amount of the current liabilities for Taxes reflected or
reserved against in the Final Closing Date Balance Sheet. Seller
acknowledges and agrees that any such payment shall be in full satisfaction
and discharge of Buyer's obligations under Section 2.7.
-----------
(c) Notwithstanding Section 9.2(a), any Tax attributable to the sale, transfer
--------------
or delivery of the Purchased Assets shall be borne and paid in accordance
with the provisions of Section 5.1 of the Coordinating Agreement. Buyer
and Seller agree to timely sign and deliver such certificates or forms as
may be necessary or appropriate to establish an exemption from (or
otherwise reduce), or file Tax Returns with respect to, such Taxes.
(d) Seller or Buyer, as the case may be, shall provide reimbursement for any
Tax paid by one party all or a portion of which is the responsibility of
the other party in accordance with the terms of this Section 9.2. Within a
-----------
reasonable time prior to the payment of any said Tax, the party paying said
Tax shall give notice to the other party of the Tax payable and the portion
which is the liability of each party, although failure to do so will not
relieve the other party from its liability hereunder.
(e) Buyer shall promptly notify Seller in writing upon receipt by Buyer or any
of its Affiliates of notice of any pending or threatened federal, state,
local or foreign Tax audits, examinations or assessments which may
materially affect the Tax liabilities for which Seller would be required to
indemnify Buyer pursuant to paragraph (a) of this Section 9.2. Seller
-----------
shall have the sole right to control any Tax audit or administrative or
court proceeding relating to taxable periods ending at the time of or
before the Closing at its expense, and to employ counsel of its choice at
its expense. Neither Buyer nor any of its Affiliates may settle any Tax
claim for any taxable year or period ending at or before the time of the
Closing (or for the portion of any taxable year or period ending on the
Closing) which may be the subject of indemnification by Seller under
Section 9.2(a) without the prior written consent of Seller, which consent
--------------
shall not be unreasonably withheld.
(f) After the Closing, Seller and Buyer shall (and cause their respective
Affiliates to):
(i) make available to the other and to any taxing authority as reasonably
requested all information, records, and documents relating to Taxes
relating to the Business, the Purchased Assets or the Assumed
Liabilities;
(ii) provide timely notices to the other in writing of any pending or
threatened Tax audits or assessments relating to the Business, the
Purchased Assets or the Assumed Liabilities for taxable periods for
which the other may have a liability under this Section 9.2; and
-----------
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<PAGE>
(iii) furnish the other with copies of all correspondence received from
any taxing authority in connection with any Tax audit or information
request with respect to any such taxable period.
(iv) Buyer and Seller further agree, upon request, to use their
reasonable best efforts to obtain any certificate or other document
from any governmental authority or any other Person as may be
necessary to mitigate, reduce or eliminate any Tax that could be
imposed (including, without limitation, with respect to the
transactions contemplated thereby).
(g) For the purposes of Sections 9.2(g) to 9.2(i) inclusive:
--------------- ------
Adjustment Note includes any document or record treated by the Commissioner
of Taxation as an adjustment note or as enabling the claiming of an input
tax credit for which an entitlement otherwise arises.
GST includes any replacement or subsequent similar tax.
GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Tax Invoice includes any document or record treated by the Commissioner of
Taxation as a tax invoice or as enabling the claiming of an input tax
credit for which an entitlement otherwise arises.
Terms defined in the GST Act have the same meaning in Sections 9.2(g) to
---------------
9.2(i) inclusive unless provided otherwise.
------
(h) Supply of a going concern
The parties agree that the transfer of the Business from Seller to Buyer
under this agreement is the supply of a going concern for the purposes of
section 38-325 of the GST Act.
(i) GST pass-on
(i) If a supply made by Seller under or in connection with this agreement
is not GST-free under section 38-325 of the GST Act and GST is or will
be imposed on the supply, Seller may, to the extent that the
consideration otherwise provided for that supply under this agreement
is not stated to already include an amount in respect of GST on the
supply recover the GST in addition to the consideration for that
supply under this agreement:
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(ii) The recovery of any amount in respect of GS by Seller under this
agreement on a supply is subject to the issuing of the relevant Tax
Invoice or Adjustment Note to Buyer.
(iii) If there is an adjustment event in relation to a supply which
results in the amount of GST on a supply being different from the
amount in respect of GST recovered by Seller as appropriate, Seller:
(A) may recover from Buyer the amount by which the amount
of GST on the supply exceeds the amount recovered; and
(B) must refund to Buyer the amount by which the amount of
GST recovered exceeds the amount of GST on the supply.
SECTION 9.3. Employees and Employee Benefit Plans
------------------------------------
(a) Prior to Closing, Seller shall provide Buyer a list of all current
employees of Seller who are solely or predominantly engaged in the
Business, which shall include all employees who are on annual leave, long
service leave, sick leave, maternity leave or are absent from work and
entitled to reinstatement or re-employment under any applicable statute,
contract or policy ("Seller Employees").
(b) On or as soon as practicable after the date of this Agreement, but before
Closing, Buyer must send to each Seller Employee a letter in a form agreed
with Seller offering to employ the Seller Employee with effect from
Closing.
(c) Subject to Section 9.5(b)(i), each offer must be for employment on
-----------------
substantially the same terms and conditions under which the Seller Employee
is employed by Seller immediately before Closing (including, but not
limited to, those relating to retrenchment, redundancy (in each case taking
into account length of service with Seller) and superannuation) and without
loss of continuity of employment for the purpose of all employee
entitlements except where the Seller Employee is legally entitled to and in
fact demands payment in cash on transfer.
(d) Each party must use its best endeavours to encourage all of the Seller
Employees to accept the offer so made.
(e) On or as soon as practicable after Closing, Seller must:
(i) release all Seller Employees accepting the above offer of employment
from Buyer ("Transferring Employees"), that release to take effect as
at the Closing Date; and
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(ii) pay the Transferring Employees all Employment Benefits (other than
Employee Leave Benefits) due to or accrued by them as at the Closing
Date.
(f) After Closing Buyer must:
(i) pay the Transferring Employees all Employee Leave Benefits and other
entitlements due to them after the Closing Date as and when they fall
due in accordance with law; and
(ii) indemnify Seller against any liability for Employee Leave Benefits and
other entitlements due to or accrued by a Transferring Employee after
the Closing Date and against all Actions in any way connected with the
Buyer's employment of a Transferring Employee or termination of that
employment.
SECTION 9.4. Post-Closing Remittances
------------------------
If, after the Closing Date, Seller shall receive any remittance from any account
debtors with respect to any accounts or Receivables included in the Purchased
Assets, Seller shall endorse such remittance to the order of Buyer and forward
it to Buyer promptly following receipt thereof.
SECTION 9.5. Superannuation
--------------
(a) Before the Closing Date, Buyer must make all arrangements necessary to
provide superannuation benefits for each Existing Member with effect from
Closing.
(b) Within one month (or any longer period agreed between Buyer and Seller)
after the Closing Date but in any event before the Transfer Date, Buyer
must ensure that each Existing Member is offered membership of one of the
Buyer's Funds with effect from the Closing Date on terms and conditions
which provide in respect of each Existing Member who accepts that offer:
(i) in respect of the period after the Closing Date, benefits which are
substantially the same as those provided for in respect of the
Existing Member under the Governing Rules of the Seller's Fund in
force on the Closing Date, having regard to his or her membership
classification on that date; and
(ii) in the case of an Existing Member who gives the authorisation referred
to in Section 9.5(c)(ii), as from the date the Existing Member's
------------------
Accrued Benefit Value is transferred to one of the Buyer's Funds a
fully vested benefit equal to the Existing Member's Accrued Benefit
Value adjusted to take account of the earnings and expenses of the
Buyer's Funds after the date that Accrued Benefit Value is transferred
to one of the Buyer's Funds.
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(c) The offer of membership referred to in Section 9.5(b) must include or
--------------
attach a form or forms acceptable to the trustee of the Seller's Fund to be
completed and signed by the Existing Member under which the Existing Member
may elect either
(i) that the trustee of the Seller's Fund (as its only obligation in
respect of the Existing Member) provide the benefit due to the
Existing Member as of the Closing Date under the Seller's Fund upon
the termination of the Existing Member's employment with Seller; or
(ii) in lieu of any benefit whatsoever being provided in respect of the
Existing Member under the Seller's Fund, that the trustee of the
Seller's Fund (as its only obligation in respect of the Existing
Member) cause his or her Accrued Benefit Value to be transferred to
the Buyer's Fund,
and under which the trustee of the Seller's Fund is released from all
liability in respect of the Existing Member upon the provision of that
benefit or the transfer of that amount, as the case may be.
(d) Seller must use all reasonable endeavours to ensure that on or before the
day which is 10 Business Days after the later of:
(i) the Transfer Date; and
(ii) the date on which the Accrued Benefit Values of the Transferring
Members have been calculated,
the trustee of the Seller's Fund pays the Accrued Benefit Values of the
Transferring Members to the trustee of the Buyer's Fund, adjusted for
interest in respect of the period between the Closing Date and the date the
amount is paid at the rate which applies under the Governing Rules of the
relevant Seller's Fund for the purpose of determining relevant benefits
which become payable from the Seller's Fund during that period. The
interest payable accrues from day to day.
(e) The Accrued Benefit Values and any interest payable under Section 9.5(d)
--------------
must be paid in immediately available funds except to the extent that the
trustee of the Buyer's Fund agrees to accept other assets in whole or
partial satisfaction of those amounts and, to the extent that the trustee
of the Buyer's Fund agrees to accept other assets, the calculation of the
relevant amounts under this Section 9.5 shall be based on the value of
-----------
those assets as agreed between the trustees of the Seller's Fund and the
Buyer's Fund.
(f) The Accrued Benefit Values of the Transferring Members shall be calculated
by the Seller's Actuary as at the Closing Date in accordance with Section
-------
9.5(g) and (h) and the calculations of the Seller's Actuary shall be
------ ---
conclusive and binding on the parties.
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(g) Where the whole of the normal retirement benefit to be provided from the
Seller's Fund in respect of a Transferring Member under the Governing Rules
of the Seller's Fund is calculated on the basis of the accumulation of
amounts paid or credited in respect of the Member with interest or other
earnings, the Member's Accrued Benefit Value shall be the total amount
accumulated in respect of the Member for that purpose under those Governing
Rules as at the Closing Date.
(h) Where Section 9.5(g) does not apply to a Transferring Member, the Member's
--------------
Accrued Benefit Value as at the Closing Date shall be calculated in
accordance with the following formula (subject to a minimum of the benefit
due to the Existing Member under the Seller's Fund upon the termination of
the Existing Member's employment with the Seller):
[ ABM x FAS x DF ] + AC
Where:
"ABM" is the benefit multiple accrued in respect of the Member as at
the Closing Date in relation to the period before that date for
the purpose of calculating the normal retirement benefit to be
provided from the Seller's Fund if the Member ceases to be an
employee on attaining the normal retirement date in terms of the
Governing Rules of the Seller's Fund, calculated using the
defined benefit accrual rate or rates applicable in respect of
that period under those Governing Rules and including any initial
retirement benefit multiple granted in respect of the Member upon
the Member transferring into the Seller's Fund from another fund
or benefit arrangement.
"AC" is, to the extent that the retirement benefit of the Transferring
Member under the Seller's Fund is not calculated on a defined
benefit basis but on the basis of the accumulation of amounts
paid or credited in respect of the Member with interest or other
earnings, the total amount accumulated in respect of the Member
for that purpose under the Governing Rules of the Seller's Fund
as at the Closing Date.
"DF" is 1/1.03 /55-age/, where age denotes the Transferring Member's
age at the Closing Date. "DF" is 1 at age 55 or older.
"FAS" is the Transferring Member's Final Average Salary (as defined in
the Governing Rules of the Seller's Fund) as at the Closing Date.
(i) Seller must provide, and must use all reasonable endeavours to ensure that
the trustee of the Seller's Fund provides, to Buyer and to the trustee of
the Buyer's Fund (or such other superannuation arrangement as is made
available to Existing
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Members by Buyer) any information in respect of the Existing Members
reasonably required by them to give effect to this Section 9.5.
(i) As from the date of this Agreement, Seller must use all reasonable
endeavours to ensure that no action is taken, discretion exercised or
omission occurs which would:
(i) alter the level of benefits or contributions in respect of an
Existing Member under the Governing Rules of the Seller's Fund from
the level applicable immediately before the date of this Agreement;
or
(ii) alter any Accrued Benefit Value,
except:
(iii) to the extent reasonably necessary to secure or better secure a
concession or relief in respect of any duty or tax or to avoid a
penalty, detriment or disadvantage under a law affecting the
Seller's Fund; or
(iv) with the consent of Buyer.
(j) Buyer must provide, and use all reasonable endeavours to ensure that the
trustee of the Buyer's Fund, or such other trustee, administrator, person
or entity as Buyer nominates, provides to Seller and the trustee of the
Seller's Fund any information reasonably required by them to give effect to
this Section 9.5.
-----------
(k) Buyer must secure in respect of each Transferring Member a benefit on his
or her death or total and permanent disablement while in the employ of
Buyer between the Closing Date and the date he or she accepts or declines
the offer referred to in Section 9.5(b) of an amount at least equal to the
--------------
value of the insured portion of the death or total and permanent
disablement benefit (which represents the difference between the benefit
which would have been payable from the Seller's Fund if the Transferring
Member had died or become totally and permanently disabled on the Closing
Date and any amount to be paid from the Seller's Fund to the Transferring
Member or to the Buyer's Fund).
(l) Buyer must use all reasonable endeavours to ensure that the Buyer's Fund,
or such external fund as is nominated by the Buyer, is a "complying
superannuation fund" in terms of Part IX of the Income Tax Assessment Act
during the period necessary to ensure that any amount paid or transferred
into the Buyer's Fund pursuant to this Section 9.5 is subject to tax under
-----------
that Act in the hands of the trustee of the Buyer's Fund on the
concessional basis applicable to funds having that status.
(m) The following definitions apply to Sections 9.5 and 5.15:
------------ ----
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"Accrued Benefit Value" means in relation to a Transferring Member the amount
calculated as at the Closing Date in accordance with Section 9.5(g), and (h);
-------------- ---
"Buyer's Funds" means the Buyer's superannuation funds under Section 9.5(a);
--------------
"Existing Member" means a Transferring Employee who is a member of either of the
2 internal group funds referred to in the definition of the "Seller's Fund" on
the Closing Date, but not a Transferring Employee who is a member of any of the
externally administered funds referred to in the definition of the "Seller's
Funds";
"Governing Rules" means, in relation to a superannuation fund, the trust deed,
rules or other document governing that fund;
"Seller's Actuary" means the actuary of the Seller's Fund appointed under the
Governing Rules of the Seller's Fund;
"Seller's Fund" means the superannuation funds, details of which are set out in
Schedule 5.15 and in relation to an Existing Member, means the particular
-------------
Seller's Fund of which he or she is a member on the Closing Date;
"Transfer Date" means:
(a) the date agreed by Seller and Buyer for this purpose, not being earlier
than the Closing Date; or
(b) if Buyer and Seller do not agree on a date for the purposes of paragraph
(a) of this definition within one month after the Closing Date, the date
which is two months after the Closing Date;
"Transferring Member" means an Existing Member who becomes a member of the
Buyer's Fund and authorises the transfer of his or her Accrued Benefit Value
under Section 9.5(c)(ii).
------------------
SECTION 9.6. Insurance
---------
If in respect of the obligations and liabilities (including the Assumed
Liabilities) assumed by Buyer under this Agreement, Buyer suffers after Closing
any Losses or Expenses ("Insured Liabilities") then:
(a) to the extent the Seller receives or recovers after Closing any amounts in
respect of such Insured Liabilities under any policies of insurance
maintained by Seller prior to Closing ("Relevant Policy") Seller shall
promptly pay Buyer the lesser of the amount of the Insured Liability paid
by Buyer and the amount so recovered by the Seller, less all costs
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and expenses (including without limitation any Taxes or increased premium
costs) incurred by the Seller in connection with such recovery; and
(b) if permitted under the terms of the Relevant Policy and subject to being
indemnified by Buyer for all costs and expenses (including, without
limitation, any increased premium costs) which may result, Seller will take
such reasonable steps as Buyer may request to ensure that Buyer is
subrogated to and enjoys the benefits of the rights of Seller under the
Relevant Policies in relation to the Insured Liability concerned.
ARTICLE X.
TERMINATION
SECTION 10.1. Termination
-----------
Anything contained in this Agreement to the contrary notwithstanding, this
Agreement may be terminated at any time prior to the Closing Date:
(a) by the mutual written consent of Buyer and Seller;
(b) by Buyer or Seller if the Closing shall not have occurred on or before 31
December 2000 unless:
(i) all conditions to Closing have previously been satisfied or waived;
and
(ii) the Closing has not then occurred solely because the date for Closing
specified in Section 4.1 has not yet occurred and unless such failure
-----------
to close is due primarily to the breach by the party seeking
termination of its agreements, representations or warranties contained
herein;
(c) by Buyer in the event of any breaches in any material respect by Seller of
Seller's agreements, covenants, representations or warranties contained
herein, and which Seller has failed to remedy or cure within twenty-one
(21) days after receipt of notice from Buyer requesting that such breaches
be remedied or cured;
(d) by Seller in the event of any breaches in any material respect by Buyer of
Buyer's agreements, covenants, representations or warranties contained
herein, which Buyer has failed to remedy or cure within twenty-one (21)
days after receipt of notice from Seller requesting that such breaches be
remedied or cured; or
(e) by Buyer or Seller if any court shall have issued a Court Order or if any
Governmental Body shall have issued a decree or ruling or taken any other
action permanently restraining, enjoining or otherwise prohibiting the
consummation of the transactions contemplated hereby.
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SECTION 10.2. Notice of Termination
---------------------
Any party desiring to terminate this Agreement pursuant to Section 10.1 shall
------------
give written notice of such termination to the other parties to this Agreement.
SECTION 10.3. Effect of Termination
---------------------
In the event that this Agreement shall be terminated pursuant to this Article
10, all further obligations of the parties under this Agreement (other than
Sections 12.2, 12.8 and 12.11 of this Agreement and Sections 5.2, 5.3 and 5.4 of
------------- ---- ----- ------------------ ----
the Coordinating Agreement) shall be terminated without further liability of any
party to the other, provided that nothing herein shall relieve either party from
liability for its willful breach of this Agreement.
ARTICLE XI.
EXCLUSIVITY OF REMEDY
SECTION 11.1. Indemnification by Seller
-------------------------
Seller's sole and exclusive indemnification obligations under this Agreement are
set forth in the Coordinating Agreement.
SECTION 11.2. Indemnification by Buyer
------------------------
Buyer's sole and exclusive indemnification obligations under this Agreement are
set forth in the Coordinating Agreement.
SECTION 11.3. Exclusivity of Remedy
---------------------
Except as provided in Section 10.3, with respect to any breach by either party
------------
of its representations, warranties, covenants, or agreements in this Agreement,
the respective Buyer Ancillary Agreements or Seller Ancillary Agreements or the
ROW Agreements, and the transactions contemplated hereby and thereby, the sole
and exclusive remedy of the other party (in contract, tort, for contribution
under Requirements of Law, or otherwise) shall be the indemnification provided
in the Coordinating Agreement. In view of this exclusivity of remedy provision,
Buyer and Seller covenant and agree for themselves and their respective
Affiliates that they will not bring, maintain, join or prosecute any Action or
other proceeding against the other or its Affiliates for breach of this
Agreement except as set out in the Coordinating Agreement.
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ARTICLE XII.
GENERAL PROVISIONS
SECTION 12.1. Notices
-------
Any notice, request, instruction or other document to be given hereunder shall
be in writing and: (a) delivered personally; (b) sent by reputable overnight
courier; or (d) transmitted by facsimile, according to the instructions set
forth below. Such notices shall be sent to the following addresses and/or
facsimile numbers and shall be deemed given: (x) if delivered personally, at the
time delivered; (y) if sent by reputable overnight courier, at the time sent, or
(z) if transmitted by facsimile, at the time when receipt is confirmed by the
sending facsimile machine.
If to Seller, to:
Pacific Dunlop Limited
Level 41
101 Collins Street
Melbourne, Victoria 3000
Australia
Attention: Managing Director
Facsimile: (613) 9270 7634
with a copy to:
Gardner, Carton & Douglas
321 N. Clark Street
Suite 3400
Chicago, Illinois 60610
U.S.A.
Attention: Mr. Robert J. Wilczek
Facsimile: 312-644-3381
If to Buyer, to:
c/o Exide Corporation
2901 Hubbard Road
Ann Arbor, Michigan 48105
U.S.A.
Attention: General Counsel
Facsimile: 734-827-2575
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with copies to each of:
Phillips Fox
120 Collins Street
Melbourne, Victoria 3000
Australia
Attention: Simon Uthmeyer
Facsimile: 613-9274-5111
and
Kirkland & Ellis
200 East Randolph Drive
Chicago, Illinois 60601
U.S.A.
Attention: Mr. Carter W. Emerson, P.C.
Facsimile: 312-861-2200
or to such other address as such party may indicate by a notice delivered to the
other parties hereto in accordance with the provisions of this Section 12.1.
------------
Section 12.2. Confidential Information
------------------------
Each party agrees that it will treat in confidence all documents, materials and
other information which it shall have obtained regarding any of the other
parties during the course of the negotiations leading to the consummation of the
transactions contemplated hereby (whether obtained before or after the date of
this Agreement), the investigation provided for herein and the preparation of
this Agreement and other related documents ("Confidential Information"), and, in
the event the transactions contemplated hereby shall not be consummated, each
party will return to the other party all copies of nonpublic Confidential
Information which have been furnished in connection therewith. Confidential
Information shall not be communicated to any third Person (other than the
parties' respective counsel, accountants, financial advisors, or environmental
consultants). No party shall use any Confidential Information in any manner
whatsoever except solely for the purpose of evaluating the proposed transaction.
Notwithstanding the foregoing, after the Closing, Buyer may use or disclose any
Confidential Information related to the Business. The Seller shall not at any
time after the Closing disclose any Confidential Information relating to the
Business. The obligation of each party to treat Confidential Information in
confidence shall not apply to any Confidential Information which (i) is or
becomes available to such party from a source other than such party, (ii) is or
becomes available to the public other than as a result of disclosure by such
party or its agents, (iii) is required to be disclosed under applicable law or
judicial process, but only to the extent it must be disclosed, or (iv) as to
which such party reasonably deems disclosure necessary to obtain any of the
consents or approvals contemplated hereby.
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Section 12.3. No Public Announcement
----------------------
Neither Buyer nor Seller shall, without the approval of the other party, issue
any press release or other public announcement concerning the transactions
contemplated by this Agreement. Notwithstanding the foregoing, either party may
issue a press release or other public announcement concerning the transactions
contemplated by this Agreement to the extent that such party or its Affiliates
shall be so obligated by law, or to comply with accounting, U.S. Securities and
Exchange Commission, New York Stock Exchange, or Australian Stock Exchange
disclosure obligations, provided that such party shall be obligated to give the
other party prior notice of such press release or other public announcement if
prior notice is commercially feasible.
Section 12.4. Entire Agreement; Amendments
----------------------------
This Agreement, the Coordinating Agreement, the ROW Agreements and the Exhibits
and Schedules referred to herein and therein and the Buyer Ancillary Agreements
and the Seller Ancillary Agreements contain the entire understanding of the
parties hereto with regard to the subject matter contained herein or therein,
and supersede all prior written or oral agreements, understandings or letters of
intent between or among any of the parties hereto. This Agreement shall not be
amended, modified or supplemented except by a written instrument signed by an
authorized representative of each of the parties hereto.
Section 12.5. Successors and Assigns
----------------------
(a) The rights of each party under this Agreement and the Coordinating
Agreement shall not be assignable without the written consent of the
other party, provided however, that no such assignment shall relieve the
assigning party from any of its duties or obligations under this
Agreement or the Coordinating Agreement.
(b) This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their successors and permitted assigns. Nothing in
this Agreement, expressed or implied, is intended or shall be construed
to confer upon any Person other than the parties and successors and
assigns permitted by this Section 12.5 any right, remedy, benefit or
------------
claim under or by reason of this Agreement.
Section 12.6. Interpretation
--------------
(a) Article titles and headings to sections herein are inserted for
convenience of reference only and are not intended to be part of or to
affect the meaning or interpretation of this Agreement. The Schedules
and Exhibits referred to herein shall be construed with and as an
integral part of this Agreement to the same extent as if they were set
forth herein.
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(b) This Agreement and the Schedules and Exhibits hereto have been mutually
prepared, negotiated and drafted by each of the parties hereto and thereto.
The parties agree that the terms of this Agreement shall be construed and
interpreted against each party in the same manner and that no such
provisions shall be construed or interpreted more strictly against one
party on the assumption that an instrument is to be construed more strictly
against the party which drafted the agreement.
Section 12.7. Waivers
-------
Any term or provision of this Agreement may be waived, or the time for its
performance may be extended, pursuant to a written action by the party or
parties entitled to the benefit thereof. Any such waiver shall be validly and
sufficiently authorized for purposes of this Agreement if, as to any party, it
is authorized in writing by an authorized representative of such party. Subject
to Sections 8.1 and 8.2, the failure of any party hereto to enforce at any time
------------ ---
any provision of this Agreement shall not be construed to be a waiver of such
provision, nor in any way to affect the validity of this Agreement or any part
hereof or the right of any party thereafter to enforce each and every such
provision. No waiver of any breach of this Agreement shall be held to
constitute a waiver of any other or subsequent breach.
Section 12.8. Expenses
--------
Subject to the provisions of the Coordinating Agreement or the ROW Agreements,
regardless of whether the transactions provided for in this Agreement are
consummated, each party hereto will pay its own costs and expenses incident to
the negotiation, preparation and performance of this Agreement, including the
fees, expenses and disbursements of its counsel, financial advisors, and
accountants.
Section 12.9. Partial Invalidity
------------------
Wherever possible, each provision hereof shall be interpreted in such manner as
to be effective and valid under applicable law, but in case any one or more of
the provisions contained herein shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect, such provision shall be ineffective to
the extent, but only to the extent, of such invalidity, illegality or
unenforceability without invalidating the remainder of such invalid, illegal or
unenforceable provision or provisions or any other provisions hereof, unless
such a construction would be unreasonable.
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Section 12.10. Execution in Counterparts
-------------------------
This Agreement may be executed in one or more counterparts, each of which shall
be considered an original instrument, and shall become binding when one or more
counterparts have been signed by each of the parties hereto and delivered to
each of Seller and Buyer.
Section 12.11. Governing Law
-------------
This Agreement shall be governed by and construed in accordance with the
internal laws of the State of Illinois, USA, without giving effect to any choice
of laws provisions which may direct the application of the laws of another
jurisdiction.
Section 12.12. Further Assurances and Cooperation
----------------------------------
(a) From and after the date of this Agreement, upon the request of either
Seller or Buyer or any of their respective Affiliates, the other party and
its Affiliates shall execute and deliver such instruments, documents or
other writings as may be reasonably necessary or desirable to confirm and
carry out and to effectuate fully the intent and purposes of this
Agreement.
(b) After the Closing on reasonable advance notice, Buyer shall provide Seller,
Seller's Affiliates, and any advisor retained by Seller or its Affiliates
with reasonable access to the management and properties, and books,
records, and documents (which were in existence on the Closing) relating to
the Purchased Assets or the Business during normal business hours and in a
manner which does not unreasonably interfere with the Business for any
reasonable purpose including, but not limited to, the fulfillment of
Seller's responsibilities under Section 4.1(a) of the Coordinating
--------------
Agreement, the enforcement of Seller's and its Affiliates' rights under
Article 2 of the Coordinating Agreement and clause (iv) of Section 4.2(a)
--------------
of the Coordinating Agreement. As reasonably necessary, Seller, Seller's
Affiliates, and any advisor retained by Seller or its Affiliates shall be
entitled to make copies of such books, records and documents at their
expense. If Buyer shall desire at any time to dispose of any of such
books, records or documents, Buyer shall, prior to such disposition, give
Seller a reasonable opportunity to segregate and remove such books and
records as Seller may select. The obligations of Buyer pursuant to this
Section 12.12(b) shall survive the Closing indefinitely.
----------------
Section 12.13. No Reliance
-----------
The provisions of this Agreement are intended for the sole benefit of Buyer and
Seller and shall not inure to the benefit of any other Person, other than
successors and permitted assigns of Buyer and Seller, whether as third party or
otherwise.
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Section 12.14. Disclosure Schedules
--------------------
The Disclosure Schedules are hereby incorporated by reference into and made a
part of this Agreement. The inclusion of any item in the Disclosure Schedules is
intended to qualify the representations and warranties contained in this
Agreement, and to set forth other information required by this Agreement.
Disclosure of information in any one of the Disclosure Schedules shall be deemed
to be a disclosure with respect to every Section of this Agreement,
notwithstanding the presence or absence of a cross-reference to Disclosure
Schedules under other Sections of this Agreement if the meaning of such
disclosure in the context of such other section is reasonably ascertainable.
Disclosure of information in the Disclosure Schedules shall not be deemed to be
an admission by Seller that such information is material for purposes of this
Agreement. Summaries or extracts of any documents, instruments, or other
agreements contained in the Disclosure Schedules are for the convenience of
reference only and are qualified in their entirety by reference to the
applicable document, instrument or other agreement so summarized or extracted
from.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
the day and year first above written.
SELLER:
GNB BATTERY TECHNOLOGIES LIMITED
By its duly appointed attorney:
__________________________________
Name: Martin M. Hudson
Title: Attorney in Fact
AUSTRALIAN BATTERY COMPANY (AUST.) PTY LTD.
By its duly appointed attorney:
__________________________________
Name: Martin M. Hudson
Title: Attorney in Fact
PACIFIC DUNLOP LIMITED
By its duly appointed attorney:
__________________________________
Name: Martin M. Hudson
Title: Attorney in Fact
BUYER:
EXIDE AUSTRALIA PTY LIMITED
By its duly authorized Directors:
Signature:________________________
Name:_____________________________
Title:____________________________
Signature:________________________
Name:_____________________________
Title:____________________________
-53-
<PAGE>
EXHIBIT A
--------------------------------------------------------------------
Purchase Price : US$ 42,695,000
Assumed Liabilities : US$ 14,405,000
----------
Total : US$ 57,100,000
==========
--------------------------------------------------------------------
Allocation to Purchased Assets
--------------------------------------------------------------------
Real Property US$ 7,269,275
----------------------------------------------
Machinery & Equipment US$ 27,053,725
----------------------------------------------
Inventory US$ 11,434,385
----------------------------------------------
Other Assets US$ 11,342,615
---------------------------------------------- ----------
Total US$ 57,100,000
---------------------------------------------- ==========
Receivables subject to Section 2.9 of the
Agreement US$ 10,154,625
--------------------------------------------------------------------
-54-
<PAGE>
STOCK PURCHASE AGREEMENT
WITH RESPECT TO GNB TECHNOLOGIES NV
Dated as of 28 June 2000
among
P.D. International Pty Limited and Pacific Dunlop Holdings (Europe) Ltd., as
Sellers
Exide Holding Europe, as Buyer
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C>
ARTICLE 1. DEFINITIONS..................................................................... 1
ARTICLE 2. SALE AND PURCHASE............................................................... 6
Section 2.1. Sale and Purchase of the Shares............................................. 6
Section 2.2. Purchase Price.............................................................. 6
ARTICLE 3. CLOSING......................................................................... 7
Section 3.1. Closing: Time and Location................................................. 7
Section 3.2. Documents to be Delivered to the Buyer at Closing........................... 7
Section 3.3. Seller Obligations Closing.................................................. 8
Section 3.4. Buyer's Obligations at Closing.............................................. 8
Section 3.5. Form of Documents........................................................... 9
Section 3.6. Post-Closing Matters........................................................ 9
ARTICLE 4. REPRESENTATIONS AND WARRANTIES REGARDING THE SELLERS............................ 9
Section 4.1. Organization................................................................ 10
Section 4.2. Power and Authority......................................................... 10
Section 4.3. Agreement Binding........................................................... 10
Section 4.4. Absence of Conflicts........................................................ 10
Section 4.5. No Litigation............................................................... 11
Section 4.6. Title to Shares............................................................. 11
Section 4.7. No Advisor.................................................................. 11
ARTICLE 5. REPRESENTATIONS AND WARRANTIES REGARDING GNB.................................... 11
Section 5.1. Organization................................................................ 12
Section 5.2. Share Capital............................................................... 12
Section 5.3. Subsidiaries and Investment................................................. 12
Section 5.4. Absence of Conflicts........................................................ 13
Section 5.5. No Violation or Litigation.................................................. 13
Section 5.6. Operations Since June 30, 1999.............................................. 14
Section 5.7. Returns, Elections and Appeals.............................................. 15
Section 5.8. Title to Assets............................................................. 16
Section 5.9. Real Properties............................................................. 17
Section 5.10. Assets...................................................................... 17
Section 5.11. Asset Leases................................................................ 17
Section 5.12. Licenses.................................................................... 18
Section 5.13. Intellectual Property....................................................... 18
Section 5.14. Employees, etc.............................................................. 18
Section 5.15. Trade Disputes.............................................................. 19
Section 5.16. Payments on Termination..................................................... 19
Section 5.17. Claims...................................................................... 20
Section 5.18. Pensions.................................................................... 20
Section 5.19. Commercial Contracts........................................................ 20
Section 5.20. Status of Contracts......................................................... 21
Section 5.21. Environmental Matters....................................................... 21
</TABLE>
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<TABLE>
<S> <C>
Section 5.22. Bank Accounts, Guarantees and Powers........................................ 23
Section 5.23. Accounts and Records........................................................ 23
Section 5.24. Insurance................................................................... 23
Section 5.25. Product Warranties.......................................................... 24
Section 5.26. No Misrepresentation........................................................ 24
Section 5.27. Powers of Attorney.......................................................... 24
ARTICLE 6. REPRESENTATIONS AND WARRANTIES REGARDING THE BUYER.............................. 24
Section 6.1. Organization................................................................ 25
Section 6.2. Power and Authority......................................................... 25
Section 6.3. Agreement Binding........................................................... 25
Section 6.4. Absence of Conflicts........................................................ 25
Section 6.5. No Litigation............................................................... 26
Section 6.6. Investment Representation................................................... 26
Section 6.7. No Advisor.................................................................. 26
Section 6.8. No Misrepresentation........................................................ 26
ARTICLE 7. ACTION PRIOR TO THE CLOSING DATE................................................ 27
Section 7.1. Preserve Accuracy of Representations and Warranties......................... 27
Section 7.2. Notification of Changes..................................................... 27
Section 7.3. Governmental Approvals...................................................... 27
Section 7.4. Operations Prior to the Closing Date........................................ 27
Section 7.5. Intercompany Agreements..................................................... 28
Section 7.6. General..................................................................... 28
Section 7.7. Preservation of Business.................................................... 28
ARTICLE 8. CONDITIONS TO CLOSING........................................................... 28
Section 8.1. Buyer....................................................................... 28
Section 8.2. Sellers..................................................................... 30
ARTICLE 9. TERMINATION..................................................................... 32
Section 9.1. Termination................................................................. 32
Section 9.2. Effect of Termination....................................................... 32
Section 9.3. Notice of Termination....................................................... 33
ARTICLE 10. EXCLUSIVITY OF REMEDY........................................................... 33
Section 10.1. Indemnification by the Sellers.............................................. 33
Section 10.2. Indemnification by the Buyer................................................ 33
Section 10.3. Exclusivity of Remedy....................................................... 33
ARTICLE 11. GENERAL PROVISIONS.............................................................. 33
Section 11.1. Notices..................................................................... 33
Section 11.2. Confidential Information.................................................... 35
Section 11.3. No Public Announcement...................................................... 35
Section 11.4. Entire Agreement; Amendments................................................ 36
Section 11.5. Successors and Assigns...................................................... 36
Section 11.6. Interpretation.............................................................. 37
Section 11.7. Waivers..................................................................... 37
Section 11.8. Expenses.................................................................... 37
Section 11.9. Partial Invalidity.......................................................... 38
</TABLE>
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<TABLE>
<S> <C>
Section 11.10. Execution in Counterparts.............................. 38
Section 11.11. Governing Law.......................................... 38
Section 11.12. Further Assurances and Cooperation..................... 38
Section 11.13. No Reliance............................................ 39
Section 11.14. Disclosure Letter...................................... 39
Section 11.15. Joint and Several Liability............................ 39
</TABLE>
SCHEDULES
1 Particulars of GNB
2 Particulars of GNB Subsidiaries
3 Real Properties
4 Principal Assets
5 Intellectual Property
5.7 Returns, Elections and Appeals
5.8 Title to Assets
5.19(I) Environmental Matters
6 Surviving Intercompany Agreements
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<PAGE>
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT dated as of 28 June 2000 (the "Agreement") is
executed by and among P.D. INTERNATIONAL PTY LIMITED, a company incorporated in
Australia under company number ACN 006 947 057 (the "First Seller"); PACIFIC
DUNLOP HOLDINGS (EUROPE) LTD., a company incorporated in England and Wales under
company number 1458684 (the "Second Seller"); Exide Holding Europe, a company
incorporated under the laws of France (the "Buyer").
WHEREAS
A. The Sellers own the entire issued share capital of GNB (as defined in
this Agreement) in the respective proportions set out in Schedule 1.
B. The Buyer desires to purchase from the Sellers, and the Sellers desire
to sell to the Buyer, the entire issued share capital of GNB on the terms and
subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, the Sellers and the Buyer agree as follows:
ARTICLE 1.
DEFINITIONS
In this Agreement, unless the context otherwise requires, the following
terms have the meanings specified or referred to in this Section 1.1 and shall
be equally applicable to both the singular and plural forms. Any agreement
referred to below shall mean such agreement as amended, supplemented and
modified from time to time to the extent permitted by the applicable provisions
thereof and by this Agreement.
"Action" means any lawsuit, arbitration, or regulatory, governmental or
other proceeding or investigation whether at law or in equity.
"Adjoining Properties" shall mean all sites or locations other than the
Real Property or the PRP Sites to which Contaminants have migrated from the Real
Property through air, soil, surface water or groundwater.
"Affiliate" means, with respect to any Person, any other Person which
directly or indirectly controls, is controlled by or is under common control
with such Person.
"Agreement" has the meaning specified in the first paragraph of this
Agreement.
"Business" means (i) the marketing of starting-lighting-ignition automotive
and specialty batteries and supplying original equipment manufacturers and
replacement market customers with batteries for passenger cars, light and heavy-
duty trucks, golf carts, motorcycles, garden tractors and marine use, and
related activities; (ii) the marketing of batteries and allied
<PAGE>
products, parts and service for industrial applications; in each case, as
conducted by GNB or a Subsidiary at the Real Properties immediately prior to the
Closing Date;
"Business Day" means a day other than Saturday, Sunday or a day on which
United States national banks are closed.
"Buyer" has the meaning specified in the first paragraph of this
Agreement.
"Buyer Ancillary Agreements" means all agreements, instruments and
documents being or to be executed and delivered by the Buyer under this
Agreement.
"Closing" has the meaning specified in Section 3.1.
"Closing Date" has the meaning specified in Section 3.1.
"Confidential Information" has the meaning specified in Section 11.2.
"Consultancy Minimum" means the level of annual consultancy payments
specified in relation to GNB in Schedule 1 and in relation to each of the
Subsidiaries in Schedule 2.
"the Contractual Minimum" means the level of annual contractual payments
specified in relation to GNB in Schedule 1 and in relation to each of the
Subsidiaries in Schedule 2.
"Coordinating Agreement" means that certain coordinating agreement dated 9
May 2000 between Pacific Dunlop Holdings (USA) Inc., a Delaware corporation, and
Exide Corporation, a Delaware corporation, as amended and supplemented from time
to time.
"Court Order" means any judgment, order, award or decree of any foreign,
federal, state or local court or tribunal or governmental agency and any award
in any arbitration proceeding in any jurisdiction.
"Disclosure Letter" means the letter dated 12 June 2000 from the Sellers to
the Buyer, as modified pursuant to Section 5.7 of the Coordinating Agreement.
"Employee Plan" has the meaning specified in the Principal US Agreement.
"Encumbrance" means any lien, charge, security interest, mortgage, pledge,
power of sale, easement, encroachment, covenant, restriction on transfer or
other restriction on or defect in title or other encumbrances.
"Environmental Laws" means all applicable statutory, international, treaty,
conventions and local or regional laws, regulations, codes of practice,
circulars and guidance notes relating to pollution or human health or the
environment (including ambient air, surface water, ground water, tidal water and
the foreshore between high and low tide, land surface or sub-surface strata),
including, without limitation, those relating to Environmental Matters or
otherwise relating to the manufacture, possessing, distribution, use,
processing, treatment, storage, disposal,
2
<PAGE>
transport or handling of Hazardous Materials currently in effect applicable to
the operations of the Business.
"Environmental Matters" means waste, land including contaminated land,
aquatic environment, discharges, emissions, noise and vibration, heat, light and
radiation, dangerous, hazardous or toxic substances and materials, nuisance and
health and safety.
"Expenses" means any and all reasonable expenses incurred in connection
with investigating, defending or asserting any Action or overtly threatened
Action (including court filing fees, court costs, arbitration fees or costs,
witness fees, and reasonable fees and disbursements of legal counsel,
investigators, expert witnesses, accountants and other professionals).
"Financial Statements" has the meaning specified in the Coordinating
Agreement.
"GNB" means GNB Technologies NV, details of which are set out in Schedule
1.
"GNB Agreements" has the meaning specified in Section 5.20.
"GNB Finland" means GNB Technologies Oy, being a wholly-owned Subsidiary of
GNB, details of which are set out in Schedule 2.
"GNB France" means GNB Technologies S.A., being a wholly-owned Subsidiary
of GNB, details of which are set out in Schedule 2.
"GNB Germany" means GNB Technologies GmbH, being a wholly-owned Subsidiary
of GNB, details of which are set out in Schedule 2.
"GNB Italy" means GNB Technologies s.r.l., being a wholly-owned Subsidiary
of GNB, details of which are set out in Schedule 2.
"Group Companies" means GNB and the Subsidiaries and the "Group" shall be
construed accordingly.
"Governmental Body" means any foreign, United Kingdom, United States,
European Union, Belgian, French, Italian, Finnish, state, or local governmental
authority, agency.
"Governmental Permit" has the meaning specified in the Principal US
Agreement.
"Harm" means harm defined in section 1(4) of the Environmental Protection
Act 1990 of the United Kingdom.
"Hazardous Materials" means chemicals, pollutants, contaminants, waste,
petroleum, petroleum hydro-carbon products, explosives, radioactive substances,
dangerous, hazardous or toxic substances and materials.
3
<PAGE>
"Insurance Policies" means the insurance policies of GNB and of each of the
Subsidiaries referred to in Section 7.7(a);
"Intellectual Property" has the meaning specified in Section 5.13(a).
"Intercompany Agreements" means agreements between GNB or a Subsidiary and
an Affiliate of GNB other than GNB and any Subsidiary.
"June 30, 1999 Balance Sheet" has the meaning specified in the Coordinating
Agreement, including the notes to such balance sheet.
"KPMG" means KPMG LLP or its successor.
"Knowledge of the Sellers" or similar phrases means matters actually known
to Thomas Minner, Thomas Smith, Thomas O'Hare, Mitchell Bregman, Barbara
Hatcher, Rolf Fehndrich, Bart de Keyser or Jeff Kostos.
"Knowledge of the Sellers Regarding Environmental Matters" or similar
phrases means matters actually known to Rolf Fehndrich or Barbara Hatcher.
"Licenses" has the meaning specified in Section 5.12.
"Losses" means all losses, obligations, liabilities, settlement payments,
awards, judgments, fines, assessments, penalties, and damages.
"March 31, 2000 Balance Sheet" has the meaning specified in the
Coordinating Agreement, including the notes to such balance sheet.
"Material Adverse Effect" means any event, occurrence or condition (other
than as a result of general economic conditions or events or conditions
affecting the automotive and industrial battery industry as a whole) which has,
or could reasonably be expected to have, a material adverse effect on the
financial condition, assets, results of operations, Business, or operations of
GNB, taken as a whole.
"Minimum Asset Value" means the original asset cost specified in relation
to GNB and in relation to each of the Subsidiaries, in Schedule 1.
"Person" means any individual, corporation, partnership, limited liability
company or corporation, joint venture, association, trust, unincorporated
organization or Governmental Body.
"Principal US Agreement" means the Sale Purchase Agreement with respect to
Pacific Dunlop GNB Corporation dated 9 May 2000 between Pacific Dunlop Holdings
(USA) Inc., as Seller, and Exide Corporation, as Buyer as amended and
supplemented from time to time.
"Product Warranty Level" means the level of product warranty claim
specified.
4
<PAGE>
"PRP Sites" shall mean all sites (other than the Real Property and the
Adjoining Properties) with respect to which GNB, a Subsidiary, or any of their
successors or assignees have or may have liability under any Environmental Law.
"Purchase Price" has the meaning specified in Section 2.2.
"Real Properties" means leasehold properties held by GNB brief details of
which are set out in Schedule 3 and "Real Property" means any one of them.
"Release" includes any and all spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaking, dumping,
disposing, and any other means by which a substance may be introduced into or
travel through the environment.
"Remedial Action" shall include all actions required by a Court Order or
otherwise by a Governmental Body to: (i) clean up, remove, remediate, contain,
treat, monitor, assess, evaluate or in any other way address Hazardous
Materials; (ii) prevent the Release or threatened Release of Hazardous
Materials; or (iii) investigate and determine if a remedial response is needed
and to design such a response and post-remedial investigation, monitoring,
operation and maintenance.
"Requirements of Law" means any applicable law, regulation, bylaw, code or
ordinance of any Governmental Body currently in effect applicable to the
operation of the Business.
"ROW Agreements" has the meaning specified in the Coordinating Agreement.
"Salary Minimum" means the level of annual salary specified in relation to
GNB and in Schedule 1 in relation to each of the Subsidiaries, in Schedule 2.
"Sellers" means the First Seller and the Second Seller.
"Sellers' Ancillary Agreements" means all agreements, instruments and
documents being or to be executed and delivered by the Sellers under this
Agreement.
"Shares" means the 100 ordinary, registered shares of GNB constituting its
entire issued share capital.
"Subsidiaries" means GNB Finland, GNB France, GNB Germany and GNB Italy.
"Tax" (and, with correlative meaning, "Taxes" and "Taxable") means any
federal, state, county, local or foreign income, alternative or add-on minimum,
gross income, gross receipts, capital gains, capital, property, sales, use,
transfer, license, excise, premium, lease, estimated, environmental,
registration, value added, stamp, real property, franchise, employment, payroll,
wage, withholding or minimum tax, ad valorem, customs duty, or social security
payments and any other similar taxes or governmental charges, fees, levies,
assessments or liabilities of any kind whatsoever, whether computed on a
separate or consolidated, unitary or combined basis or in any other manner, and
includes any interest, penalty or fine, or addition to tax imposed by any
Governmental Body.
5
<PAGE>
"Tax Authority" means any governmental, federal, state, provincial, local
government or other fiscal tax, revenue, customs duties or excise authority body
or official whether of Belgium or elsewhere in the World.
"Tax Return" means any return, notice, computation, report or similar
statement required to be filed with respect to any taxation (including any
attached schedules), including, without limitation, any information return,
claim for refund, amended return and declaration of estimated Tax.
ARTICLE 2.
SALE AND PURCHASE
SECTION 2.1. Sale and Purchase of the Shares.
-------------------------------
(a) On the terms and subject to the conditions of this Agreement, on the
Closing Date, the Sellers shall sell to the Buyer, and the Buyer shall purchase
from the Sellers, the Shares free from all Encumbrances together with all rights
and benefits attaching or accruing to such Shares at Closing.
(b) Title to beneficial ownership of, and any risk attaching to the Shares
shall pass on the Closing and the Buyer shall, from the Closing Date, be
entitled to exercise all rights attached or accrued to the Shares including,
without limitation, the right to receive all dividends, distributions or any
return of capital made or paid by GNB on or after the Closing Date.
SECTION 2.2. Purchase Price.
--------------
The purchase price (the "Purchase Price") shall be equal to One Thousand
United States Dollars (US$1,000). At the Closing, the Buyer shall pay the
Purchase Price to the Sellers by wire transfer of immediately available funds to
such bank account as the Sellers shall direct in writing. After Closing, the
Purchase Price shall be adjusted pursuant to Article 2 of the Coordinating
Agreement.
ARTICLE 3.
CLOSING
SECTION 3.1. Closing: Time and Location.
---------------------------
Completion of the sale and purchase of the Shares (the "Closing") shall
take place at 10:00 a.m. local time on the last Business Day of the month in
which the last of the conditions specified in Article 8 is satisfied or waived,
at the offices of Gardner, Carton & Douglas at 321 North Clark Street, in
Chicago, Illinois, or at such other time or place as shall be agreed upon by the
Sellers and the Buyer. Notwithstanding the foregoing, if the date upon which the
last of the
6
<PAGE>
conditions specified in Article 8 is satisfied or waived is five (5) or fewer
Business Days before the last day of the month, then the Closing shall be
consummated on the fifth (5th) Business Day following the date upon which the
last of such conditions was satisfied or waived, or such other date as may be
agreed upon by Buyer and Sellers. The time and date on which the Closing is
completed is referred to herein as the "Closing Date".
SECTION 3.2. Documents to be Delivered to the Buyer at Closing.
-------------------------------------------------
(a) At Closing each Seller or duly authorised attorney in fact of each
Seller shall record the transfer of shares owned by such Seller to the Buyer or
as the Buyer may direct in GNB's share register to that effect.
(b) At Closing, the Sellers shall deliver to the Buyer or as the Buyer may
direct:
(i) duly executed transfers of any of the Shares and any shares of
any of the Subsidiaries held by nominees in favour of the Buyer or as the
Buyer may direct;
(ii) duly executed counterparts of the Sellers' Ancillary
Agreements;
(iii) a closing certificate of the Seller in a form reasonably
satisfactory to the Buyer certifying as to the accuracy of the Seller's
representations and warranties at and as of the Closing and that the
Sellers has performed and complied with all of the terms, provisions and
conditions to be performed and complied with by the Seller at or before the
Closing;
(iv) a certificate of the Company Secretary or an Assistant Company
Secretary of the Seller in a form reasonably satisfactory to the Buyer
dated the Closing Date, certifying as to: (i) the Seller's articles of
association, (ii) the passing of resolutions of the Seller's board of
directors, authorizing the execution and performance of this Agreement, the
Seller Ancillary Agreements, and the transactions contemplated hereby; and
(iii) evidence of due appointment and signatures of its officers executing
this Agreement and any Sellers' Ancillary Agreement;
(v) the written resignations of their respective directors and/or
secretaries (including the company secretary) of GNB, as may be required to
resign by the Buyer effective as of the Closing Date; and
(vi) such other certificates and documents as the Buyer or its
Counsel may reasonably request.
7
<PAGE>
SECTION 3.3. Seller Obligations Closing
--------------------------
At the Closing, the Seller shall be obligated to:
(a) cause those persons nominated by the Buyer who have duly consented to
act as Directors of GNB, to be validly appointed as additional directors and
those persons nominated by the Buyer who have duly consented to act as secretary
of GNB to be validly appointed as company secretary of GNB; and
(b) on such appointments referred to in section 3.3(a) being made, cause
of persons referred to in section 3.2(f) to cease to be directors and the
company secretary of GNB.
SECTION 3.4. Buyer's Obligations at Closing.
------------------------------
Upon completion of all the matters referred to in Section 3.2 (and only
upon such completion) the Buyer shall be obliged to deliver to the Sellers:
(a) duly executed counterparts of the Buyer Ancillary Agreements;
(b) a closing certificate of the Buyer in a form reasonably satisfactory
to the Sellers certifying as to the accuracy of the Buyer's representations and
warranties at and as of the Closing and that the Buyer has performed and
complied with all of the terms, provisions and conditions to be performed and
complied with by the Buyer at or before the Closing;
(c) a certificate of the Company Secretary or an Assistant Company
Secretary of the Buyer in a form reasonably satisfactory to the Sellers, dated
the Closing Date, certifying as to: (i) the Buyer's articles of association (or
other like constitutional document), (ii) the passing of resolutions of the
Buyer's board of directors, authorizing the execution and performance of this
Agreement, the Buyer Ancillary Agreements, and the transactions contemplated
hereby; and (iii) evidence of due appointment and signatures of its officers
executing this Agreement and any Buyer Ancillary Agreements;
(d) the written consent of each of the persons named in Section 3.3(a) to
--------------
serve as director or company secretary, as the case may be; and
(e) such other certificates and documents as the Sellers or its counsel
may reasonable request.
SECTION 3.5. Form of Documents.
-----------------
The documents and instruments referred to in Sections 3.2 and 3.4 shall be
satisfactory as to form to counsel for the party to whom they are delivered.
8
<PAGE>
SECTION 3.6. Post-Closing Matters
--------------------
(a) The Seller hereby declares that for so long as it remains the
registered holder of any of the Shares after Closing it will:
(i) hold the Shares and the dividends and other distributions of
profits or surplus or other assets declared, paid or made in respect of
them after Closing and all rights arising out of or in connection with them
in trust for the Buyer and its successors in title; and
(ii) deal with and dispose of the Shares and all such dividends,
distributions and rights as are described in Section 3.6(a)(i) as the Buyer
or any such successor may direct.
(b)
(i) The Seller hereby appoints the Buyer as its lawful attorney for
the purpose of receiving notices of and attending and voting at all
meetings of the members of GNB from Closing to the date on which the Buyer
or its nominee is entered in the register of members of GNB as the holder
of the Shares.
(ii) For such purpose the Seller hereby authorises:
(A) GNB to send any notices in respect of its holding of Shares
to the Buyer; and
(B) the Buyer to complete in such manner as it thinks fit and to
return proxy cards, consents to short notice and any other
document required to be signed by it in its capacity as a
member.
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES REGARDING THE SELLERS
Each Seller represents and warrants to the Buyer as follows in
relation to its own affairs:
SECTION 4.1. Organization.
------------
It has been duly incorporated and validly exists under the laws of, in
the case of the First Seller, Australia, and in the case of the Second Seller,
England and Wales.
9
<PAGE>
Section 4.2. Power amd Authority
-------------------
It has the full corporate power and authority to execute and deliver
this Agreement and the Sellers' Ancillary Agreements and to perform its
obligations hereunder and thereunder. Its execution, delivery and performance of
this Agreement and each of the Sellers' Ancillary Agreements has been duly
authorized and approved by all necessary corporate action. SECTION 4.3 .
Agreement Binding.
Section 4.3. Agreement Binding.
-----------------
This Agreement and each of the Sellers' Ancillary Agreements has been
duly executed and delivered by it and, assuming due authorization, execution and
delivery by the Buyer, is the legal, valid and binding obligation of the
relevant Seller enforceable against it in accordance with their respective
terms, subject to general principles of equity and except as enforceability may
be limited by applicable bankruptcy, insolvency, fraudulent transfer,
reorganisation, moratorium or other similar laws of general application relating
to creditors' rights generally.
SECTION 4.4. Absence of Conflicts.
--------------------
The execution, delivery and performance of this Agreement and the
Sellers' Ancillary Agreements and the performance of the relevant Sellers'
obligations hereunder and thereunder will not:
(a) conflict with, result in a breach of the terms, conditions or
provisions of, or constitute a default, an event of default or an event creating
rights of acceleration, termination or cancellation, or result in the
termination or result in the creation, imposition or crystallisation of any
Encumbrance upon the Shares or any assets of GNB under:
(i) any term or provision of the memorandum or articles of
association of the relevant Seller or any Affiliate of Sellers;
(ii) any note, instrument, contract, agreement, mortgage,
indenture, lease, license or franchise to which the relevant Seller or
any Affiliate of Sellers is a party or by which it or any of its
assets is bound;
(iii) any Court Order; or
(iv) any Requirements of Law;
except for any of the foregoing which, individually or in the aggregate is or
are not likely to have a Material Adverse Effect or hinder or impair the
completion of the transactions contemplated hereby; or
10
<PAGE>
(b) require the approval, consent, authorization or act of, or the making
by the relevant Seller or any Affiliate of Sellers of any declaration,
notification, filing or registration with any Person, except for any of the
foregoing which, individually or in the aggregate, if not taken, is or are not
likely to have a Material Adverse Effect, or materially hinder or impair the
consummation of the transactions contemplated hereby.
SECTION 4.5. No Litigation.
-------------
There is no Action pending against it or, to the Knowledge of the relevant
Seller, threatened against it, which challenges the legality or propriety of the
transactions contemplated by this Agreement or the Sellers' Ancillary Agreements
or which impairs the completion of the transactions contemplated hereby or
thereby.
SECTION 4.6. Title to Shares.
---------------
It has good, valid and marketable title to the Shares, free and clear of
all Encumbrances, and has full right and power to vote and dispute of such
Shares as contemplated herein. The Seller is not a party to any option, warrant,
purchase right, or other contract or commitment that could require the Seller to
sell, transfer, or otherwise dispose of any of the Shares (other than this
Agreement). The Seller is not a party to any voting trust, proxy, or other
agreement or understanding with respect to the voting of any of the Shares.
SECTION 4.7. No Advisor.
----------
Neither the relevant Seller or any Affiliate of the relevant Seller nor any
Person acting on its behalf, has retained any advisor, broker, investment banker
or financial advisor in connection with this Agreement or any transaction
contemplated hereby for which the Buyer or GNB or any Subsidiary may be liable.
ARTICLE 5.
REPRESENTATIONS AND WARRANTIES REGARDING GNB
The Sellers represent and warrant to the Buyer as follows:
SECTION 5.1. Organization.
------------
Each Group Company has been duly incorporated and validly exists under the
jurisdiction listed in Schedule 1 (in relation to GNB) or Schedule 2 (in
relation to the Subsidiaries). The Sellers have delivered to the Buyer complete
and correct copies of each Group Company's certificate of incorporation,
charter, by-laws or other organizational documents of each Group Company,
including all modifications or changes duly made and a
11
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copy of its memorandum and articles of association as currently in force. None
of the Group Companies are in violation of any provision of their respective
memorandum or articles of association and each has all requisite corporate power
and authority to hold its properties under lease, to own or lease its assets and
to carry on its business as currently conducted and to operate the properties
and assets now being operated by it.
SECTION 5.2. Share Capital.
-------------
All the Shares of GNB are owned by the Sellers and all the issued
shares in each of the Subsidiaries are legally and owned by GNB except as
otherwise set forth in Schedule 2. The Shares (and all of the issued shares in
each Subsidiary) comprise the whole of the issued and allotted share capital of
GNB and each Subsidiary and have been properly and validly issued, are fully
paid or credited as fully paid and have not been issued in violation of any pre-
emptive or other rights arising under statue, contract or otherwise. GNB has no
outstanding subscriptions, options, warrants, rights, agreements or other
commitments granting to any Person any interest in or right to acquire any of
their its securities, including, without limitation, the Shares, or any interest
therein. GNB has not issued any instrument or security convertible into, or
exchangeable for, the Shares or other shares, and there is no agreement or
understanding to which GNB or the Seller is a party or by which either of them
is bound with respect to the voting of the Shares. GNB is under no obligation,
whether contingent or otherwise, to issue or repurchase any of its Shares or to
make any dividend or distribution payments based on its revenues, profits or net
income.
SECTION 5.3. Subsidiaries and Investments.
----------------------------
GNB has no subsidiaries other than the Subsidiaries and none of the
Subsidiaries have any subsidiaries. With the exception of GNB's ownership of the
Shares, no Group Company owns, directly or indirectly, any stocks, shares, bonds
or securities or any equity or other proprietary interest in any Person.
SECTION 5.4. Absence of Conflicts.
--------------------
The execution and completion of this Agreement and the Seller
Ancillary Agreements, and the transactions contemplated or provided for in any
of them, will not:
(a) conflict with, result in a breach of the terms, conditions or
provisions or constitute a default, an event of default or an event creating
rights of acceleration, termination or cancellation, or result in the
termination of, or result in the creation or imposition of any Encumbrance upon
the Shares or any assets of GNB (or upon any of the shares held by GNB in the
Subsidiaries) under:
(i) any term or provision of the articles of association of any
Group Company; or
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(ii) any note, instrument, contract, agreement, mortgage, indenture,
lease, license or franchise to which any Group Company is a party or by
which it or any of its assets is bound;
(iii) any Court Order; or
(iv) any Requirements of Law;
except for any of the foregoing which, individually or in the aggregate, is or
are not likely to have a Material Adverse Effect or will not or is not likely to
hinder or impair the exchange and completion of this Agreement or any of the
transactions contemplated or provided for hereby and thereby; or
(b) require the approval, consent, authorization or act of, or the making
by any Group Company of, any declaration, notification, filing or registration
with any Person, except for any of the foregoing which, individually or in the
aggregate, is or are not likely to have a Material Adverse Effect or materially
hinder or impair the consummation of the transactions contemplated hereby and
thereby.
SECTION 5.5. No Violation or Litigation.
--------------------------
(a) Each Group Company has complied and is in compliance with all Court
Orders and Requirements of Law which are applicable to it and its business,
except for such Requirements of Law as to which noncompliance is not likely to
have a Material Adverse Effect; and
(b) there is no Action pending or, to the Knowledge of the Sellers,
threatened, against any Group Company or any of their assets and there has not
been, to the Knowledge of the Sellers, any claim asserted by any Person that
could lead to an Action and no Group Company nor any of their assets is subject
to any currently pending Court Order. To the Knowledge of the Sellers, there is
no Action pending or threatened against any officer or director of any Group
Company arising out of his or her service as an officer or director of any Group
Company.
SECTION 5.6. Operations Since June 30, 1999.
------------------------------
Except as reflected in the March 31, 2000 Balance Sheet, since June 30,
1999:
(a) there has been no material adverse change in the business, operations,
assets, or financial condition of any Group Company. The termination of any
Intercompany Agreement not listed on Schedule 6 will not have a Material Adverse
Effect;
(b) Except as reflected in the March 31, 2000 Balance Sheet, each Group
Company has conducted its business in the ordinary course and has not:
(i) made any material change in operations;
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(ii) made any capital expenditure or entered into any contract or
commitment in excess of the capital expenditures disclosed in the "Fiscal Year
2000 Open Sanction Summary" attached to Schedule 5.7(B) the Principal US
Agreement;
(iii) sold, leased (as lessor), transferred or otherwise disposed of, or
imposed or suffered to be imposed any Encumbrance on, any of the assets, except
for inventory and other personal or real property sold, leased or otherwise
disposed of for fair value in the ordinary course of business consistent with
past practice and except for Permitted Encumbrances (as defined in the Principal
US Agreement);
(iv) cancelled any debts owed to or claims held (including the settlement
of any Action) other than in the ordinary course of business consistent with
past practice;
(v) created, incurred or assumed, or agreed to create, incur or assume,
any indebtedness for borrowed money or entered into, as lessee, any capitalized
lease obligations or guaranteed any such indebtedness or leases of others or
made any loans other than in the ordinary course of business consistent with
past practice;
(vi) written off as uncollectible or accelerated or delayed collection of
notes or amounts receivable in advance of or beyond their regular due dates or
the dates when the same would have been collected other than in the ordinary
course of business consistent with past practice;
(vii) delayed or accelerated payment of any accounts payable or other
liabilities beyond or in advance of their due date or the date when such
liabilities would have been paid other than in the ordinary course of business
consistent with past practice;
(viii) made any distribution of assets (including payments of cash) to any
of its Affiliates (not including the Seller or any of its Subsidiaries) other
than pursuant to agreements entered into in the ordinary course of business
consistent with past practice or declared or paid any distributions (provided
that Sellers shall have the right to remove and retain all cash held by GNB or
any Subsidiary) or redeemed, reclassified or purchased or otherwise acquired any
shares of its capital stock or authorised or issued any shares of its capital
stock or any option, warrant or other right to purchase or acquire any such
shares; or
(ix) entered into, or amended, any employment, severance or similar
agreement or arrangement or made any increases in the wages, bonuses, and
benefits of its employees (other than in the ordinary course of business
consistent with past practice and in accordance with applicable labour law
requirements);
(x) waived any rights or settled any claims, except for such waivers or
settlements granted or entered into in the ordinary course of business;
(xi) made any change to its method of accounting;
14
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(xii) suffered or incurred any damage, destruction, fire, explosion,
accident, flood or other casualty loss or act of God (whether or not
covered by insurance) to any material operating asset or group of operating
assets;
(xiii) entered into or amended any purchase and sale contract outside
the ordinary course of business;
(xiv) suffered any amendments, termination, suspension or revocation
of, any Governmental Permit;
(xv) adopted an Employee Plan or amended or modified any already
existing Employee Plan;
(xvi) amended its articles of association;
(xvii) manufactured inventory in excess of its expected needs; or
(xviii) where applicable, agreed to do any of the foregoing.
SECTION 5.7. Returns, Elections and Appeals.
------------------------------
(a) Each Group Company has properly and within the requisite periods made
all Tax Returns which at any time it has been liable to make or provide for any
purposes of Tax.
(b) Each Group Company has duly and within the requisite periods made or
given all elections, claims, notices and which are assumed to have been made or
given in computing the charge or provision for that company (if any) for Tax
in, or in preparing the Financial Statements.
(c) Each Group Company has duly and within the requisite periods accounted
for or paid all Tax which it is liable to account for or pay.
(d) No appeal by any Group Company is currently outstanding against any
assessment or other demand in respect of any Tax.
(e) Except as set forth on Schedule 5.7, no deficiency or proposed
adjustment (which has not settled or otherwise resolved) for any amount of Tax
has been proposed, asserted or assessed by any taxing authority against GNB or
its Subsidiaries.
(f) Except as set forth on Schedule 5.7, there is no action, suit, taxing
authority proceeding or audit now in progress, pending or, to the Knowledge of
Sellers, threatened against or with respect to GNB or its Subsidiaries.
(g) Except as set forth on Schedule 5.7, no claim has ever been made by a
taxing authority in a jurisdiction where GNB or its Subsidiaries, respectively,
do not file Tax Returns that such entity is or may be subject to Taxes assessed
by such jurisdiction.
15
<PAGE>
(h) Except as set forth on Schedule 5.7, GNB and its Subsidiaries will not
be result of a change in method of accounting for a taxable period ending on or
prior to the Closing Date, to include any adjustment in taxable income for any
taxable period (or portion thereof) ending after the Closing Date, (B) as a
result of any Requirement of Law relating to taxation matters to include any
item of income in, or exclude any item of deduction from, taxable income for any
taxable period (or portion thereof) ending after the Closing Date, (C) as a
result of any Requirement Law relating to taxation matters, to include any item
of income in taxable income for any taxable period (or portion thereof) ending
after the Closing Date or (D) any installment sale made or prepaid income
attributable to a taxable period ending on or prior to the Closing Date.
(i) Except as set forth on Schedule 5.7, GNB and its Subsidiaries have no
obligation or liability for the payment of Taxes of any other Person, but not
limited to the following, a liability of GNB or its Subsidiaries for the payment
of any Tax arising (A) as a result of being (or ceasing to be) a member of any
Affiliated Group (or being included (or required to be included) in any Tax
Return relating thereto), (B) as a result from any expressed or implied
obligation to indemnify another person, and (C) as a result from GNB or its
Subsidiaries succeeding to the Tax liability of any other person as a successor,
transferee or otherwise.
Section 5.8. Title to Assets.
---------------
GNB is the exclusive and absolute owner of and has good title to; or a
valid leasehold interest to, all of the personal property of GNB and the Group
Companies reflected in the June 30, 1999 Balance Sheet (other than the property
of GNB and the Group Companies disposed of since the date of the June 30, 1999
Balance Sheet in the ordinary course of business for fair value) in the amounts
and categories reflected therein, and all personal property of GNB and the Group
Companies acquired after the date of the June 30, 1999 Balance Sheet, free and
clear of all Encumbrances, except for: (a) Permitted Encumbrances; (b) the lien
of current taxes not yet due and payable and (c) other exceptions disclosed in
Schedule 5.8. Except as disclosed in Schedule 5.8, the personal property of GNB
------------ ------------
that is utilized in the operation of GNB's business is usable in the ordinary
course of GNB's business and conforms to all applicable statutes, ordinances and
regulations relating to its construction, use and operation, except where such
nonconformity is not likely to have a Material Adverse Effect.
Section 5.9. Real Properties.
---------------
(a) the Real Properties shown in Schedule 3 comprise all the premises and
land owned, leased, occupied or used by each Group Company;
(b) Part II of Schedule 3 contains details of the material terms of each
material lease or sublease or similar agreement under which a Group Company is
lessee or sublessee of, or holds or occupies, the Real Properties;
(c) there is no other Person in possession or occupation of any of the
Real Properties without proper authority;
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<PAGE>
(d) to the Knowledge of the Sellers there is no material subsisting breach
nor any material non-observance on the part of any Group Company of any
covenant, condition or agreement contained in the lease under which each Group
Company occupies the Property other than relating to repair, maintenance and
decoration and no landlord has refused to accept rent or made any complaint or
objection concerning the covenants.
Section 5.10. Assets.
------
Schedule 4 contains a list of all machinery, equipment, and vehicles owned
by GNB and each of the Subsidiaries having an original cost equal to or in
excess of the Minimum Asset Value (the "Principal Assets").
Section 5.11. Asset Leases.
------------
The Disclosure Letter contains a brief description of each lease or other
agreement or right, whether written or oral, (including in each case the annual
rental, the expiration date thereof and a brief description of the property
covered) under which each Group Company is lessee of, or holds or operates, any
machinery, equipment, or vehicle owned by a third party, except those which are
terminable by the relevant Group Company without cost or penalty on 30 days' or
less notice or which provide for annual rentals of less than the Contractual
Minimum.
Section 5.12. Licenses.
--------
All material licenses, consents, authorizations, permits, orders, warrants,
confirmations, permissions, certificates, approvals and authorities ("Licenses")
necessary for the carrying on of the Business and operations of each Group
Company have been obtained and are being complied with except to the extent that
non-compliance is not likely to have a Material Adverse Effect. No written
notice of the suspension, cancellation, refusal, modification or revocation of
any such License has been received by any Group Company and, to the Knowledge of
the Sellers, there is no basis for the issuance of such notice except as a
result of the consummation of the transactions contemplated hereby or except as
is not likely to have a Material Adverse Effect. Notwithstanding the foregoing,
Licenses required under the Environmental Laws are addressed solely in Section
5.21(b).
Section 5.13. Intellectual Property.
---------------------
(a) Except as set out in Schedule 5 there are no material patents, patent
applications, trade marks or trade mark registrations, service marks or service
mark registrations, trade names, Internet domain names, corporate names or any
applications to register any of the foregoing, copyrights, licenses to or from
any Person in relation thereto, (the "Intellectual Property") used by GNB or
otherwise relating to the business of each Group Company as presently carried
on;
17
<PAGE>
(b) Each item constituting part of the Intellectual Property has been, to
the extent indicated in Schedule 5, duly registered, filed or issued in the name
of the relevant Group Company, as the case may be and such registrations,
filings and issuances remain in full force and effect;
(c) Each Group Company owns and possesses all right, title and interest in
and to the Intellectual Property set against its name in Schedule 5, and has not
received written notice of any claim by any Person contesting the validity,
enforceability, use, or ownership of any such Intellectual Property, patent
disclosures or inventions or asserting that any Subsidiary is infringing the
intellectual property of others. Schedule 5 sets forth all technology (including
Intellectual Property) owned by third parties and used by each Group Company. To
the Knowledge of the Sellers, no Person is infringing the rights of any Group
Company with respect to any Intellectual Property.
Section 5.14. Employees, etc.
--------------
(a) the Disclosure Letter contains details of:
(i) the aggregate number of employees employed by each Group
Company;
(ii) the name, date of commencement of service, temporary or
permanent status, period of service, location, salary and benefits package,
grade and age of each employee;
(iii) the terms of the contract of employment of each employee with a
current annual salary or benefit package in excess of the Salary Minimum;
and
(iv) the forms of all consultancy or similar arrangements involving
payments in excess of the Consultancy Minimum per annum;
(b) there are no proposals to terminate the employment of any employees of
any Group Company and there are no arrangements (whether contractual or
otherwise) to vary or amend their terms of employment (whether to their
detriment or benefit).
(c) Each Group Company has in relation to each of its employees (and, so far
as relevant, to each of its former employees) complied with:
(i) obligations imposed on it by all statutes regulations and codes
of conduct and practice relevant to the relations between it and its
employees or any trade union or employee representatives and has maintained
current adequate and suitable records regarding the service and terms and
conditions of employment of each of its employees;
(ii) all collective agreements recognition agreements and customs and
practices for the time being dealing with such relations or the conditions
of service of its employees; and
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(iii) all relevant orders and awards made under any relevant statute
regulation or code of conduct and practice affecting the conditions of
service of its employees.
Section 5.15. Trade Disputes.
--------------
No Group Company is involved in any industrial or trade dispute or any
dispute or negotiation with any trade union or other body representing any of
the employees.
SECTION 5.16. Payments on Termination.
-----------------------
(a) no liability has been or may be incurred by any Group Company for
breach of any contract of employment or consultancy with any employee or
consultant including, without limitation, redundancy payments, protective
awards, compensation for wrongful dismissal or unfair dismissal or for failure
to comply with any order for the reinstatement or re-engagement of any employee;
and
(b) No Group Company has made or agreed to make any payment or provided or
agreed to provide any benefit to any employee or former employee or any
dependent of any such employees or former employee in connection with the
proposed termination or suspension of employment or variation of any contract of
employment of any such employee or former employee.
Section 5.17. Claims.
------
No liability has been or, to the Knowledge of the Sellers may be,
incurred by any Group Company for breach of any contract of employment or
consultancy with any employee or consultant: including without limitation,
redundancy payments, protective awards, compensation for wrongful or unfair
dismissal or failure to comply with any order for reinstatement.
Section 5.18. Pensions.
--------
No Group Company makes, nor has any ever made, payments to any scheme or
schemes not required by law for providing retirement, death, disability or life
assurance benefits to its employees. No proposal has been announced to
establish any scheme for providing any such benefits, and no Group Company
provides any such benefits.
Sectiom 5.19. Commercial Contracts.
--------------------
No Group Company is party to or bound by:
19
<PAGE>
(a) any consignment, distributor, dealer, manufacturer's representative,
sales agency, advertising representative or advertising or public relations
contract or agreement which is reasonably anticipated by that Company to involve
the payment of more than the Contractual Minimum during its current fiscal year;
(b) any contract, agreement or commitment regarding the sale or other
disposition of products or services by the relevant Group Company, or for the
purchase of raw materials, products or services, which is reasonably anticipated
by that Company to involve the receipt or payment of more than the Contractual
Minimum during its current fiscal year;
(c) any guarantee or indemnification agreement for the benefit of any Person
made or given outside of the ordinary course of business;
(d) any contract, agreement or commitment which provides for the incurrence
by a Group Company of indebtedness for borrowed money or capitalized lease
obligations;
(e) any partnership, consortium or joint venture agreement or has been a
member of any unincorporated association;
(f) any Tax sharing or Tax Allocation agreement;
(g) any agreement, contract or commitment relating to capital expenditures of
an amount or value in excess of the Contractual Minimum;
(h) any agreement that restricts or purports to restrict the business
activity of GNB or limits GNB's ability to engage in any line of business or
compete with any Person;
(i) any material license or software or other intellectual property; or
(j) any agreement that was not entered into in the ordinary course of GNB's
business consistent with past practice and that involves annual payments in
excess of the Contractual Minimum.
Section 5.20. Status of Contracts.
-------------------
Each of the leases, contracts and other agreements of each Group Company
disclosed in the Disclosure Letter with respect to Section 5.19 in Schedule 3
(collectively, the "GNB Agreements") constitutes a legal, valid and binding
obligation of GNB (subject to bankruptcy, insolvency, reorganisation, moratorium
and similar laws of general application relating to or affecting creditors'
rights and to general equity principles) and is in full force and effect and GNB
is not, nor to the Knowledge of the Sellers, alleged to be, in material breach
of or material default under, any of the GNB Agreements nor, to the Knowledge of
the Sellers, is any other party thereto in such breach or default and, to the
Knowledge of the Sellers, no event has occurred which the notice or lapse of
time would constitute such a breach or default or permit termination,
modification or acceleration of any of the GNB Agreements.
20
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Section 5.21. Environmental Matters.
---------------------
Notwithstanding any other provision of this Agreement, this Section 5.21
contains the only representations or warranties of the Sellers with respect to
Environmental Law or Environmental Matters in relation to any Group Company, and
no other statement in this Agreement, in any of the Sellers' Ancillary
Agreements or in any other document or information delivered or given to or
received by or on behalf of the Buyer in connection with the transactions
contemplated by this Agreement shall be deemed to be a representation or
warranty relating to Environmental Law or Environmental Matters in relation to
any Group Company:
(a) Each Group Company is in compliance with all applicable Environmental
Laws except for such noncompliance as is not likely to have a Material Adverse
Effect.
(b) Each Group Company owns, holds or possesses all material Governmental
Permits required under Environmental Laws necessary for the occupation and use
of the Real Properties and the operation of its business substantially as
currently conducted. Each Group Company is in compliance, and has for the past
three (3) years complied, with all Governmental Permits except for such
noncompliance as is not likely to have a Material Adverse Effect. The Sellers
shall make commercially reasonable efforts to transfer or cause to be
transferred to the Buyer all such Governmental Permits at the Closing, including
(i) giving notice to federal, state or local regulatory agencies with respect to
the change in ownership or control or responsible officials at the Real
Properties, (ii) completing and submitting notices of termination, and (iii) to
the extent not transferred by the Closing Date, shall cooperate fully with the
Buyer in obtaining the transfer of such Government Permits as promptly
thereafter as possible.
(c) Each Group Company is not subject to any pending or, to the Knowledge of
the Sellers Regarding Environmental Matters, threatened with investigation by,
order from, claim by, statutory request for information from or continuing
agreement with any Person respecting: (i) any violation of Environmental Law or
Governmental Permits, (ii) any Remedial Action, or (iii) any claim of Losses and
Expenses, in each case, arising from the release of Hazardous Materials or the
presence of any Hazardous Material on, in, at or beneath any of the Real
Properties or the migration of any Hazardous Material onto or from the Real
Properties.
(d) No Group Company is subject to any pending or, to the Knowledge of the
Sellers Regarding Environmental Matters, threatened judicial or administrative
investigation, proceeding, order, notice of violation, judgment, decree or
settlement with any continuing obligation alleging or relating to a violation of
or liability under any Environmental Law or Governmental Permit.
(e) No Group Company has received any notice under any Environmental Law to
the effect that it is or may be liable to any Person as a result of the
generation, storage, transportation, Release, arrangement for disposal or
disposal of any Hazardous Material on, at or in any Real Properties.
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(f) To the Knowledge of the Sellers Regarding Environmental Matters, there
are no underground storage tanks (whether active or abandoned) located at, in or
beneath the Real Properties.
(g) To the Knowledge of the Sellers Regarding Environmental Matters, as of
the Closing Date there is no condition existing on the premises constituting the
Real Properties that will give rise to any liability of any Group Company under
any Environmental Law.
(h) Sellers have made available to Buyer true and correct copies of all
material environmental audits and consultant's reports relating to the past and
current operations, properties and facilities of GNB and each Subsidiary, or any
of their respective predecessors, which are in its possession or under its
reasonable control.
(i) To the Knowledge of the Sellers Regarding Environmental Matters, the
sites identified on Schedule 5.21(I) constitute, and as such Schedule is updated
by Seller from time to time in its sole discretion prior to the Closing Date,
will constitute all PRP Sites as of the Closing Date.
(j) No group Company has not reported a Release pursuant to an Environmental
Law or filed a notice with respect to the contamination of land or the
generation of hazardous wastes that is required to be filed pursuant to an
Environmental Law, and, to the Knowledge of the Seller Regarding Environmental
Matters, there has not been any disposal by any Group Company or Release of any
Hazardous Materials on, at, in or beneath any Real Properties.
(k) Notwithstanding any other provision of this Agreement, no representations
and warranties are made or shall be deemed to apply to the PRP Sites.
Section 5.22. Bank Accounts, Guarantees and Powers.
------------------------------------
The Disclosure Letter lists all accounts, directors' resolutions authorizing
borrowing or deposit boxes maintained by each Group Company at any bank or other
financial institution and the names of the persons authorized to effect
transactions in such accounts and pursuant to such resolutions and with access
to such boxes.
Section 5.23. Accounts and Records.
--------------------
All the accounts, books, ledgers and financial and other material records of
the Business have been maintained accurately and in accordance with generally
accepted accounting practices.
Section 5.24. Insurance.
---------
The Seller has, and at all times has had, valid insurance coverage in respect
of the Business against all risks normally insured against by persons in the
same industry, underwritten
22
<PAGE>
by one or more well-established and reputable insurers or adequately capitalised
Affiliates. The Disclosure Letter contains a list of all insurance policies
maintained by or on behalf of each Group Company on its respective Real
Properties, assets, business or personnel specifying:
(i) the insurer;
(ii) the amount of the coverage;
(iii) the type of insurance;
(iv) the policy number; and
(v) any currently pending claims thereunder.
No Group Company has failed to give any notice or present any claim under any
insurance policy in due and timely fashion. All premiums due under the policies
listed in the Disclosure Letter have been paid or accrued for on the Financial
Statements and all such policies are in full force and effect and no notice of
disallowance of any claim under any insurance policy, whether or not currently
in effect, has been received by any Group Company. Other than (i) claims
properly made against any Group Company in the ordinary course of business
pursuant to insurance programs written on a retrospective rating basis, (ii)
claims made as a result of premium audits relating to expired insurance
policies, (iii) deductible claims relating to losses that are incurred but not
reported, or losses that are known but not finally resolved, no Group Company
has any liability for or exposure to any premium expenses for expired policies
and there are no current claims by any Group Company under any such policy as to
which coverage has been questioned, denied or disputed by the underwriters of
such policies.
Section 5.25. Product Warranties.
------------------
Details of all of unexpired, express product warranties with respect to any
product manufactured or sold or that it has heretobefore manufactured or sold
are set out in the Disclosure Letter. Except as disclosed, the relevant Company
has not received written notice of any claim, and to the Knowledge of the
Sellers there are no threatened claims against any Group Company based on any
product warranty (except claims outstanding as of June 30, 1999), not exceeding
the Product Warranty Level.
Section 5.26. No Misrepresentation.
--------------------
To the Knowledge of the Sellers, the representations and warranties of the
Sellers contained in this Agreement, the Disclosure Letter and the certificates
and other instruments delivered by the Sellers pursuant hereto, do not contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements contained herein or therein not misleading.
23
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Section 5.27. Powers of Attorney.
------------------
As of Closing, there will not be any outstanding powers of attorney executed
on behalf of GNB or any Subsidiary other than with respect to the filing of
taxes, customs and similar matters and intellectual property registrations.
ARTICLE 6.
REPRESENTATIONS AND WARRANTIES REGARDING THE BUYER
The Buyer represents and warrants to the Sellers as follows:
Section 6.1. Organization.
------------
The Buyer has been duly incorporated and validly exists under the laws of
Delaware, USA.
Section 6.2. Power and Authority.
-------------------
The Buyer has the legal right and full corporate power, authority and approval
to execute and deliver this Agreement and the Buyer Ancillary Agreements and to
perform its obligations hereunder and thereunder and to own and lease its
property and conduct its operations as currently conducted. The Buyer's
execution, delivery and performance of this Agreement has been duly authorized
and approved by all necessary corporate action.
Section 6.3. Agreement Binding.
-----------------
This Agreement and the Ancillary Agreements have been duly executed and
delivered by the Buyer, and assuming due authorization, execution and delivery
by the Sellers, are the legal, valid and binding obligations of the Buyer
enforceable in accordance with their respective terms, subject to the general
principle of equity and except as enforceability may be limited by applicable
bankruptcy, insolvency, fraudulent transfer, reorganisation, moratorium or other
similar laws of general application relating to creditors' rights generally.
Section 6.4. Absence of Conflicts.
--------------------
The execution, delivery and performance of this Agreement and the Buyer
Ancillary Agreements and the performance of the Buyer's obligations hereunder
and thereunder will not:
(a) conflict with, result in a breach of the terms, conditions or provisions
of, or constitute a default, an event of default or an event creating rights of
acceleration, termination or
24
<PAGE>
cancellation, or result in termination of or result in the creation or
imposition of any Encumbrance under:
(i) any term or provision of the memorandum or articles of association of
the Buyer (or like constitutional documents);
(ii) any note, instrument, contract, agreement, mortgage, indenture, lease,
license, franchise, permit or other commitment to which the Buyer is a party
or by which it or any of its assets are bound;
(iii) any Court Order;
(iv) any Requirements of Law;
except in each case for any of the foregoing which, individually or in the
aggregate is or are not likely to have a material adverse effect on the Buyer or
its business taken as a whole or hinder or impair the completion of the
transactions contemplated hereby; or
(b) require the approval, consent, authorization or act of, or the making by
the Buyer of any declaration, notification, filing or registration with, any
Person, except, in each case, for any of the foregoing which, individually or in
the aggregate, if not taken, is or are not likely to have a material adverse
effect on the Buyer or its business taken as a whole or materially hinder or
impair the consummation of the transactions contemplated hereby.
Section 6.5. No Litigation.
-------------
There is no Action pending or, to the Knowledge of the Buyer, threatened,
which questions the legality or propriety of the transactions contemplated by
this Agreement the Buyer Ancillary Agreements or which would impair the
contemplation of the transactions contemplated hereby, and there has not been,
to the knowledge of the Buyer, any claim asserted by any Person that could lead
to such an Action.
Section 6.6. Investment Representation.
-------------------------
The Buyer is acquiring the Shares for investment and not with a view to the
distribution thereof or dividing all or any part of its interest therein with
any other person.
Section 6.7. No Advisor.
----------
Neither the Buyer nor any Person acting on its behalf has retained any
advisor, broker, investment banker or financial advisor in connection with this
Agreement or any transaction contemplated hereby for which the Sellers may be
liable.
25
<PAGE>
Section 6.8. No Misrepresentation.
--------------------
To the knowledge of Buyer, the representations and warranties of Buyer
contained in this Agreement and the certificates and other instruments delivered
by Buyer pursuant hereto do not include any untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements made
not misleading.
ARTICLE 7.
ACTION PRIOR TO THE CLOSING DATE
The Buyer and the Sellers covenant and agree to take the following actions
between the date hereof and the Closing Date:
Section 7.1. Preserve Accuracy of Representations and Warranties.
---------------------------------------------------
The Buyer and the Sellers shall, and the Sellers shall procure that each Group
Company shall, refrain from taking any action that would render any
representation or warranty contained in this Agreement inaccurate as of the
Closing Date. The Buyer and the Sellers shall promptly notify the other of any
Action, investigation, or other proceeding, that shall be instituted or
threatened against such party or in the case of Sellers, against GNB, to
restrain, prohibit or otherwise challenge the legality of any transaction
contemplated by this Agreement.
Section 7.2. Notification of Changes.
-----------------------
Each of the Sellers and the Buyer shall promptly notify the other of any event
that causes any representation or warranty given by such party in Article 4, 5,
or 6 to become untrue.
Section 7.3. Governmental Approvals.
----------------------
During the period prior to the Closing Date, the Sellers and the Buyer shall,
and the Sellers shall cause each Group Company to act diligently and reasonably,
and shall cooperate with each other, to secure any consents and approvals of any
Governmental Body required to be obtained in order to effect the completion of
the transactions contemplated by this Agreement and preserve for the benefit of
GNB its rights under permits and agreements.
Section 7.4. Operations Prior to the Closing Date.
------------------------------------
(a) During the period prior to the Closing Date, the Sellers shall cause GNB
and each of the Subsidiaries to operate and carry on its operations only in the
ordinary course and substantially as operated prior to the date hereof.
26
<PAGE>
(b) Notwithstanding Section 7.4(a), except as expressly provided for in this
Agreement, or with the prior written consent of the Buyer, the Sellers shall not
during the Period ending on the Closing Date take and shall not cause GNB or any
of the Subsidiaries to take any of the actions set out in Section 5.6(b);
provided, however, notwithstanding anything to the contrary herein, Sellers will
not make, and since 9 May 2000 have not made any capital expenditure in excess
of the local currency equivalent of US$250,000 (other than as permitted by
Section 7.3(b) of the Principal US Agreement) without the prior written approval
of Buyer.
Section 7.5. Intercompany Agreements.
-----------------------
All the Intercompany Agreements and intercompany accounts payable and
receivable, except for those set out in Schedule 6, shall be terminated or
canceled at Closing.
Section 7.6. General.
-------
Each of the parties will use its reasonable best efforts to take all action
and to do all things necessary, proper, or advisable in order to consummate and
make effective the transactions contemplated by this Agreement (including
satisfaction, but not waiver, of the closing conditions set forth below).
Section 7.7. Preservation of Business.
------------------------
Each of the parties shall, and Seller shall cause GNB and each Group Company
to, use reasonable best efforts to keep their businesses and properties
substantially intact, including their present operations, physical facilities,
working conditions and relationships with lessors, licensors, suppliers,
customers and employees.
ARTICLE 8.
CONDITIONS TO CLOSING
Section 8.1. Buyer.
-----
The obligations of Buyer under this Agreement shall, at the election of the
Buyer, be subject to the satisfaction, on or prior to the Closing Date, of each
of the following conditions:
(a) No Misrepresentation or Breach of Obligations or Agreements.
Seller shall have complied in all material respects with its covenants
and agreements herein and in the Coordinating Agreement.
27
<PAGE>
(b) No Breach of Representation or Warranty.
Each of the representations and warranties of the Seller contained in
this Agreement and each of the Seller Ancillary Agreements shall be true
and correct in all material respects on the Closing Date as though made
on the Closing Date (except with respect to those representations and
warranties that speak as to a particular date or time, which only need to
be true and correct as of such date or time), except for changes therein
specifically permitted by this Agreement or resulting from any
transaction expressly consented to in writing by the Buyer; and there
shall have been delivered to the Buyer a closing certificate in a form
reasonably satisfactory to the Buyer to such effect, dated the Closing
Date, signed by the Chairman or Managing Director of the Seller.
(c) Closing Documents.
The Buyer shall have received from the Sellers the agreements and closing
documents provided for in Section 3.2.
(d) Necessary Approvals.
The Seller and the Buyer shall have received all approvals and actions of
or by all Governmental Bodies and any other Person which are necessary to
complete the transactions contemplated hereby and by the ROW Agreements
and preserve for the benefit of GNB its rights under the GNB Agreements
which are material to the operation of the Business.
The Buyer acknowledges and agrees that it shall be the Buyer's obligation
to seek such approvals and actions and to issue all notifications.
(e) No Suit.
No Action by and Governmental Body shall be pending or threatened
questioning the legality of this Agreement or the consummation of the
transactions contemplated hereby in whole or in part.
(f) Principal US Agreement.
The transactions contemplated by the Principal US Agreement shall have
been completed simultaneously with the Closing.
(g) No Material Adverse Change.
On the Closing Date, there shall not be a Material Adverse Effect.
28
<PAGE>
(h) Coordinating Agreement.
All conditions to Exide Corporation's obligations set forth in Sections
5.5, 5.6 and 5.7(a) of the Coordinating Agreement shall have been
satisfied.
Notwithstanding the failure of any one or more of the foregoing
conditions, the Buyer may, at its option, proceed with the Closing
without satisfaction, in whole or in part, of any one or more of such
conditions and without written waiver; provided however, that in so
proceeding with the Closing, and notwithstanding any other provision of
this Agreement, the Buyer shall be deemed to have waived any such failure
and any rights or remedies it may have against the Sellers by reason of
such failure.
Section 8.2. Sellers.
-------
The obligations of the Sellers under this Agreement shall, at the option of
the Sellers, be subject to the satisfaction, on or prior to the Closing Date, of
each of the following conditions:
(a) No Breach of Covenants and Agreements.
Buyer shall have complied in all material respects with its covenants and
agreements herein and in the Coordinating Agreement.
(b) No Breach of Representations and Warranties.
Each of the representations and warranties of the Buyer contained in this
Agreement and the Buyer Ancillary Agreements shall be true and correct in
all material respects on the Closing Date as though made on the Closing
Date (except with respect to those representations and warranties that
speak as to a particular date or time, which only need to be true and
correct as of such date or time), except for changes therein specifically
permitted by this Agreement or resulting from any transaction expressly
consented to in writing by the Seller; and there shall have been
delivered to the Seller a closing certificate in a form reasonably
satisfactory to the Seller to such effect, dated the Closing Date and
signed by the President or Vice President of the Buyer.
(c) Closing Documents.
The Sellers shall have received from Buyer the agreements and documents
contemplated by Section 3.3(b), (c), (d) and (e).
(d) Payment of Closing Date Cash Payment.
The Buyer shall have tendered payment of the Purchase Price.
29
<PAGE>
(e) Necessary Approvals.
The Seller and the Buyer shall have received all approvals and actions
of or by all Governmental Bodies and any other Person which are
necessary to consummate the transactions contemplated hereby and by
the ROW Agreements and preserve for the benefit of Buyer its rights
under agreements which are material to the operation of its business.
The Buyer acknowledges and agrees that it shall be the Buyer's
obligation to seek such approvals and actions and to issue all
notifications.
(f) No Suit.
No Action by any Governmental Body shall be pending or threatened
questioning the legality of this Agreement or the consummation of the
transactions contemplated hereby in whole or in part.
(g) Principal US Agreement.
The transactions contemplated by the Principal US Agreement shall have
been completed simultaneously with the Closing.
(h) No Material Adverse Change.
On the Closing Date, there shall have been no event, occurrence or
condition (other than as a result of general economic conditions or
events affecting the automotive and industrial battery business as a
whole) which has, or could reasonably be expected to have, a material
adverse effect on the financial condition, assets, results or
operations, businesses, or operations of Buyer taken as a whole.
(i) Coordinating Agreement.
All conditions to Pacific Dunlop Holdings (USA) Inc.'s obligations set
forth in Sections 5.5 and 5.7(b) of the Coordinating Agreement shall
have been satisfied.
Notwithstanding the failure of any one or more of the foregoing conditions,
the Sellers may, at their option, proceed with the Closing without satisfaction,
in whole or in part, of any one or more of such conditions and without written
waiver; provided however, that in so proceeding with the Closing, and
notwithstanding any other provision of this Agreement, the Sellers shall be
deemed to have waived any such failure and any rights or remedies they may have
against the Buyer by reason of such failure.
30
<PAGE>
ARTICLE 9.
TERMINATION
Section 9.1. Termination.
-----------
Notwithstanding anything contained in this Agreement to the contrary, this
Agreement may be terminated at any time prior to the Closing Date:
(a) by the mutual written consent of the Buyer and the Sellers;
(b) by Buyer or Seller if the Closing shall not have occurred on or before
December 31, 2000 unless: (i) all conditions to Closing have previously been
satisfied or waived, and (ii) the Closing has not then occurred solely because
the date for Closing specified in Section 3.1 has not yet occurred and unless
such failure to close is due primarily to the breach by the party seeking
termination of its agreements, representations or warranties contained herein;
(c) by Buyer in the event of any breaches in any material respect by
Seller of Seller's agreements, covenants, representations or warranties
contained herein, and which Seller has failed to remedy or cure within twenty
one (21) days after receipt of notice from Buyer requesting that such breaches
be remedied or cured;
(d) by the Sellers in the event of any breaches in any material respect by
the Buyer of the Buyer's agreements, covenants, representations or warranties
contained herein, which the Buyer has failed to remedy or cure within twenty one
(21) days after receipt of notice from the Sellers requesting that such breaches
be remedied or cured; or
(e) by the Buyer or the Sellers if a Court Order shall have been made or a
Governmental Body shall have issued a decree or ruling or taken any other action
permanently restraining, enjoining or otherwise prohibiting the completion of
the transactions contemplated hereby.
Section 9.2. Effect of Termination.
---------------------
In the event that this Agreement shall be terminated pursuant to this
Section 9, all further obligations of the parties under this Agreement (other
than Sections 11.2, 11.8 and 11.11) and the Coordinating Agreement (other than
Sections 5.2, 5.3 and 5.4) shall be terminated without further liability of any
party to the other, provided that nothing herein shall relieve either party from
liability for its willful breach of this Agreement.
Section 9.3. Notice of Termination.
---------------------
Any party desiring to terminate this Agreement pursuant to Section 9.1
shall give written notice of such termination to the other parties to this
Agreement.
31
<PAGE>
ARTICLE 10.
EXCLUSIVITY OF REMEDY
Section 10.1. Indemnification by the Sellers.
------------------------------
The Sellers' sole and exclusive indemnification obligations under this
Agreement are set forth in the Coordinating Agreement.
Section 10.2. Indemnification by the Buyer
----------------------------
The Buyer's sole and exclusive indemnification obligations under this
Agreement are set forth in the Coordinating Agreement.
Section 10.3. Exclusivity of Remedy.
---------------------
Except as provided in Section 9.2, with respect to any breach by either
party of its representations, warranties, covenants, or agreements in this
Agreement or the respective Buyer or Seller Ancillary Agreements, or the ROW
Agreements and the transactions contemplated hereby and thereby, the sole and
exclusive remedy of the other party (in contract, tort, for contribution, under
Requirements of Law, or otherwise) shall be the indemnification provided in the
Coordinating Agreement. In view of this exclusivity of remedy provision, the
Buyer and the Sellers covenant and agree for themselves and their respective
Affiliates that they will not bring, maintain, join or prosecute any Action or
other proceeding against the other or its Affiliates for breach of this
Agreement or indemnity therefor except as provided in the Coordinating
Agreement.
ARTICLE 11.
GENERAL PROVISIONS
Section 11.1. Notices.
-------
Any notice, request, instruction or other document to be given hereunder
shall be in writing and: (a) delivered personally; (b) sent by first class pre-
paid post (airmail if overseas); (c) sent by reputable overnight couriers; or
(d) sent by facsimile, according to the instructions set forth below.
Such notices shall be sent to the following addresses and/or facsimile
numbers and shall be deemed given: (x) if delivered personally, at the time
delivered; (y) if sent by reputable overnight courier, at the time sent; or (z)
if transmitted by facsimile, at the time when receipt is confirmed by the
sending facsimile machine.
32
<PAGE>
If to the First or Second Seller, to:
Pacific Dunlop Holdings (USA) Inc.
6121 Lakeside Drive
Suite 200
Reno, Nevada 89511
Attention: President
Facsimile: 702-824-4626
with a copy to:
Gardner, Carton & Douglas
321 N. Clark Street
Suite 3400
Chicago Illinois 60610
Attention: Mr. Robert J. Wilczek
Facsimile: 312-644-3381
If to the Buyer, to:
c/o Exide Corporation
2901 Hubbard Road
Ann Arbor, Michigan 48105
Attention: General Counsel
Facsimile: 734-827-2575
with copy to:
Kirkland & Ellis
200 East Randolph Drive
Chicago, Illinois 60601
Attention: Mr. Carter W. Emerson, P.C.
Facsimile: 312-861-2200
or to such other address as such party may indicate by a notice defined to
the other parties in accordance with the provisions of this Section.
Section 11.2. Confidential Information.
------------------------
(a) Each party agrees that it will treat in confidence all documents,
materials and other information which it shall have obtained regarding any of
the other parties and/or the businesses of the other parties during the course
of the negotiations leading to the completion of the transactions contemplated
hereby (whether obtained before or after the date of this Agreement), the
investigation provided for herein and the preparation of this Agreement and
other related documents ("Confidential Information"), and, in the event the
transactions
33
<PAGE>
contemplated hereby shall not be completed, each party will destroy or return to
the relevant party all copies of non-public Confidential Information which have
been furnished in connection therewith, as the relevant party may specify.
Confidential Information shall not be communicated to any third person (other
than the parties' respective counsel, accountants, financial advisors or
environmental consultants). No party shall use any Confidential Information in
any manner whatsoever except solely for the purpose of evaluating the proposed
transaction. Notwithstanding the foregoing, after the Closing, the Buyer may use
or disclose any Confidential Information relating to any Group Company. The
Seller shall not at any time after the Closing disclose any Confidential
Information relating to any Group Company.
(b) The obligation of each party to treat Confidential Information in
confidence shall not apply to any Confidential Information which:
(i) is or becomes available to such party from a source other than
such party;
(ii) is or becomes available to the public other than as a result
of disclosure by another party or its agents;
(iii) is required to be disclosed under applicable law or judicial
process, but only to the extent it must be disclosed; or
(iv) as to which such party reasonably deems disclosure necessary
to obtain any of the consents or approvals contemplated hereby.
Section 11.3. No Public Announcement.
----------------------
Neither the Buyer nor the Sellers shall, without the approval of the other
parties, issue any press release or other public announcement concerning this
Agreement or the transactions contemplated by this Agreement. Notwithstanding
the foregoing, any party may issue a press release or other public announcement
concerning this Agreement or the transactions contemplated by it to the extent
that such party or its Affiliates shall be so obligated by law, or to comply
with accounting or disclosure obligations of the Securities and Exchange
Commission, New York Stock Exchange or the Australian Stock Exchange provided
that such party shall be obligated to give the other party prior notice of such
press release or other public announcement if prior notice is commercially
feasible.
Section 11.4. Entire Agreement; Amendments.
----------------------------
This Agreement, the Disclosure Letter, the Buyer Ancillary Agreements and
the Sellers' Ancillary Agreements, and the Coordinating Agreement, the Principal
US Agreement, the ROW Agreements and the Exhibits and Schedules referred to
herein and therein contain the entire understanding of the parties hereto with
regard to the subject matter herein or therein and supersede all prior written
or oral agreements, understandings or letters of intent between or among any of
the parties hereto. This Agreement shall not be amended, modified or
34
<PAGE>
supplemented except by a written instrument signed by an authorized
representative of each of the parties hereto.
Section 11.5. Successors and Assigns.
----------------------
(a) The rights of each party under this Agreement and the Coordinating
Agreement shall not be assignable without the written consent of the other
party; provided, however, that no such assignment shall relieve the assigning
party from any of its duties or obligations under this Agreement or the
Coordinating Agreement, and provided further, however, that upon written notice
to Seller, Buyer may assign this Agreement to an Affiliate of Buyer without the
consent of Seller.
(b) This Agreement shall be binding upon and enure to the benefit of the
parties hereto and their successors and permitted assigns. Nothing in this
Agreement, expressed or implied, is intended or shall be construed to confer
upon any Person other than the parties and successors and assigns permitted by
this Section 11.5 any right, remedy, benefit or claim under or by reason of this
Agreement.
(c) Interpretation.
(i) Article titles and headings to Sections herein are inserted for
convenience of reference only and are not intended to be part of or to
affect the meaning or interpretation of this Agreement. The Schedules and
Exhibits referred to herein shall be construed with and as an integral part
of this Agreement to the same extent as if they were set forth herein.
(ii) This Agreement, the Disclosure Letter and the Schedules and
Exhibits hereto have been mutually prepared, negotiated and drafted by each
of the party hereto and thereto. The parties agree that the terms of this
Agreement shall be construed and interpreted against each party in the same
manner and that no such provisions shall be construed or interpreted more
strictly against one party on the assumption that an instrument is to be
construed more strictly against the party which drafted the agreement.
Section 11.6. Interpretation.
--------------
(a) Article titles and headings to Sections herein are inserted for
convenience of reference only and are not intended to be part of or to affect
the meaning or interpretation of this Agreement. The Schedules and Exhibits
referred to herein shall be construed with and as an integral part of this
Agreement to the same extent as if they were set forth herein.
(b) This Agreement, the Disclosure Letter and the Schedules and Exhibits
hereto have been mutually prepared, negotiated and drafted by each of the
parties hereto and thereto. The parties agree that the terms of this Agreement
shall be construed and interpreted against each party in the same manner and
that no such provisions shall be construed or interpreted more
35
<PAGE>
strictly against one party on the assumption that an instrument is to be
construed more strictly against the party which drafted the agreement.
Section 11.7. Waivers.
-------
Any term or provision of this Agreement may be waived, or the time for its
performance may be extended, by the party or parties entitled to the benefit
thereof. Any such waiver shall be validly and sufficiently authorized for
purposes of this Agreement if, as to any party, it is authorized in writing by
an authorized representative of such party. Subject to Sections 8.1 and 8.2,
the failure of any party hereto to enforce at any time any term or provision of
this Agreement shall not be construed to be a waiver of such term or provision,
nor in any way to affect the validity of this Agreement or any part hereof or
the right of any party thereafter to enforce each and every such term or
provision. No waiver of any breach of this Agreement shall be held to
constitute a waiver of any other or subsequent breach.
Section 11.8. Expenses.
--------
Subject to the provisions of the Coordinating Agreement or any ROW
Agreement, regardless of whether the transactions contemplated in this Agreement
are consummated, each party hereto will pay its own costs and expenses incident
to the negotiation, preparation and performance of this Agreement, including the
fees, expenses and disbursements of its counsel, financial advisors and
accountants. Neither GNB nor any Group Company has not borne and will not bear
any such costs of expenses.
Section 11.9. Partial Invalidity.
------------------
Wherever possible, each term or provision hereof shall be interpreted in
such manner as to be effective and valid under applicable law, but in case any
one or more of the terms or provisions contained herein shall, for any reason,
be held to be invalid, illegal or unenforceable in any respect, such provision
shall be ineffective to the extent, but only to the extent, of such invalidity,
illegality or unenforceability without invalidating the remainder of such term
or provision or terms or provisions or any other terms or provisions hereof,
unless such a construction would be unreasonable.
Section 11.10. Execution in Counterparts.
-------------------------
This Agreement may be executed in one or more counterparts, each of which
shall be considered an original instrument and shall become binding when one or
more counterparts have been signed by each of the parties hereto and delivered
to each of the Sellers and the Buyer.
36
<PAGE>
Section 11.11. Governing Law.
-------------
This Agreement shall be governed by and construed in accordance with the
internal laws of the State of Illinois, U.S.A., without giving effect to any
choice of laws provisions which may direct the application of the laws of
another jurisdiction.
Section 11.12. Further Assurances and Cooperation.
----------------------------------
From and after the date of this Agreement, upon the request of either the
Sellers or the Buyer or any of their respective Affiliates, the other parties
and their respective Affiliates shall execute and deliver such instruments,
documents or other writings as may be reasonably necessary or desirable to
confirm and carry out and to effectuate fully the intent and purposes of this
Agreement. After the Closing, on reasonable advance notice, the Buyer shall
cause each Group Company to provide the Sellers, each Seller's Affiliates and
any advisor retained by the Sellers or their respective Affiliates with
reasonable access to the management and properties, and books, records, and
documents (which were in existence on the Closing) of each Group Company, during
normal business hours and in a manner which does not unreasonably interfere with
GNB, for any reasonable purpose including, but not limited to, the fulfillment
of the Sellers' responsibilities under Section 4.1(a) of the Coordinating
Agreement, the enforcement of the Sellers' and their respective Affiliates'
rights under Article 2 of the Coordinating Agreement and clause (iii) of Section
4.2(a) of the Coordinating Agreement. The Seller, the Sellers' Affiliates, and
any advisor retained by the Sellers or their respective Affiliates shall be
entitled to make copies of such books, records and documents at their expense.
If the Buyer shall desire at any time to dispose of any such books, records or
documents, the Buyer shall, prior to such disposition, give the Sellers a
reasonable opportunity to segregate and remove such books, records and documents
as the Seller may select. The obligations of the Buyer pursuant to this Section
11.12 shall survive the Closing indefinitely.
Section 11.13. No Reliance.
-----------
The provisions of this Agreement are intended for the sole benefit of the
parties hereto and shall not inure to the benefit of any other person, other
than successors and permitted assigns of the Buyer and the Sellers, whether as
third party or otherwise.
Section 11.14. Disclosure Letter
-----------------
The Disclosure Letter is hereby incorporated by reference into and made a
part of this Agreement. The inclusion of any item in the Disclosure Letter is
intended to qualify the representations and warranties contained in this
Agreement, and to set forth other information required by this Agreement.
Disclosure of information in any paragraph of the Disclosure Letter shall be
deemed to be a disclosure with respect to every Section of this Agreement
notwithstanding the presence or absence of a cross-reference to the Disclosure
Letter under other
37
<PAGE>
Sections of this Agreement if the meaning of such disclosure in the context of
such other Section is reasonably ascertainable. Disclosure of information in the
Disclosure Letter shall not be deemed to be an admission by the Seller that such
information is material for the purposes of this Agreement.
Section 11.15. Joint and Several Liability.
---------------------------
The rights and obligations of the First Seller and the Second Seller under
this agreement shall be joint and several save that the Sellers' Warranties in
Section 4 shall be given severally by each Seller in relation to itself only.
38
<PAGE>
IN WITNESS whereof the parties hereto have caused this Agreement to be
executed the day and the year first above written.
FIRST SELLER:
P.D. INTERNATIONAL PTY LIMITED
By its duly appointed attorney:
_______________________________
Name: Martin M. Hudson
Title: Attorney in Fact
SECOND SELLER:
PACIFIC DUNLOP HOLDINGS (EUROPE) LTD.
By its duly appointed attorney:
_______________________________
Name: Martin M. Hudson
Title: Attorney in Fact
BUYER:
EXIDE HOLDING EUROPE
_______________________________
Name: Denis Porges
Title: Chairman
39
<PAGE>
SCHEDULE 1
Particulars of GNB Technologies N.V.
------------------------------------
Country of Incorporation: Belgium
Date and Place of Incorporation: 31 July 1997 - 9300 Aalst
Registered Number: 60616
Registered Office: Wijngaardveld 34, 9300 Aalst
Directors: Rolf Fehndrich
Thomas Minner
VAT Number: BE 461 252519
Accounting Reference Date: 30 June
Auditors: KPMG
Salary Minimum: BEF 1,500,000
Minimum Asset Value: BEF 3,600,000
Consultancy Minimum: BEF 600,000
Contractual Minimum: BEF 3,600,000
Product Warranty Level: BEF 7,300,000
Authorised Share Capital: BEF 46,000,000
Issued and Fully Paid Up Share Capital: BEF 46,000,000
Shareholders: Number of Shares
Pacific Dunlop International Pty Ltd 65
Pacific Dunlop (Holdings) Ltd 35
<PAGE>
SCHEDULE 2
Particulars of The Subsidiaries
-------------------------------
GNB Technologies Oy
-------------------
Country of Incorporation: Finland
Date and Place of Incorporation: 18 September 1997 - Helsinki
Registered Number: 722.244
Registered Office: Konsakoulakuja 1, Helsinki
Directors: Rolf Fehndrich
Yves Steenlandt
VAT Number: Not yet granted
Accounting Reference Date: 30 June
Auditors: None appointed yet
Salary Minimum: FIM 220,000
Minimum Asset Value: FIM 535,000
Consultancy Minimum: FIM 89,000
Contractual Minimum: FIM 535,000
Product Warranty Level: FIM 1,070,000
Authorised Share Capital: FIM 500,000
Issued and Fully Paid Up Share Capital: FIM 500,000
2
<PAGE>
SCHEDULE 2
Particulars of the Subsidiaries
-------------------------------
GNB Technologies SA
-------------------
Country of Incorporation: France
Date and Place of Incorporation: 22 September 1997 - Paris
Registered Number: Douai B 413 846 825
Registered Office: 312 Rue Joliot Curie, ZI Dorignies,
59500 Douai
Directors: Rolf Fehndrich
Gerard Dollet
VAT Number: FR 45413846825
Accounting Reference Date: 30 June
Auditors: KPMG
Salary Minimum: FRF 244,000
Minimum Asset Value: FRF 590,000
Consultancy Minimum: FRF 98,000
Contractual Minimum: FRF 590,000
Product Warranty Level: FRF 1,180,000
Authorised Share Capital: FRF 2,300,000
Issued and Fully Paid Up Share Capital: FRF 2,300,000
3
<PAGE>
SCHEDULE 2
Particulars of the Subsidiaries
-------------------------------
GNB Technologies S.r.l.
-----------------------
Country of Incorporation: Italy
Date and Place of Incorporation: 15 January 1998 - Milan
Registered Number: 1549418
Registered Office: Via Gracco Spaziani 41, Verona
Directors: Rolf Fehndrich
VAT Number: 12336470153
Accounting Reference Date: 30 June
Auditors: None
Salary Minimum: ITL 72,000,000
Minimum Asset Value: ITL 174,000,000
Consultancy Minimum: ITL 29,000,000
Contractual Minimum: ITL 174,000,000
Product Warranty Level: ITL 348,000,000
Authorised Share Capital: ITL 170,000
Issued and Fully Paid Up Share Capital: ITL 170,000
4
<PAGE>
SCHEDULE 2
Particulars of the Subsidiaries
-------------------------------
GNB Technologies GmbH
---------------------
<TABLE>
<S> <C>
Country of Incorporation: Germany
Date and Place of Incorporation: 23 July 1996 - Munich; moved to Hannover 29
November 1996
Registered Number: HRB 56076 since 3 March 1997
Registered Office: Ringelnatzweg 7, 30419 Hannover
Directors: Rolf Fehndrich
VAT Number: DE 185100445
Accounting Reference Date: 30 June
Auditors: KPMG
Salary Minimum: DEM 73,000
Minimum Asset Value: DEM 176,000
Consultancy Minimum: DEM 29,000
Contractual Minimum: DEM 176,000
Product Warranty Level: DEM 352,000
Authorised Share Capital: DEM 50,000
Issued and Fully Paid Up Share Capital: DEM 50,000
</TABLE>
5
<PAGE>
SCHEDULE 3
The Real Properties
-------------------
Part I
------
1. 312, Rue Joliot Curie, ZI Dorignies, 59500 Douai, France.
2. Wijngaardveld 34, 9300 Aalst, Belgium.
3. Metsann Eidonkuja 10, 02130 Espoo, Finland.
4. Via Gracco Spaziani 41, Verona, Italy.
5. Odenwaldstra(BETA)e 3, 63263 Neu-Isenburg, Germany.
Part II
-------
1. Capitalized lease of the above premises dated 30 March 1998 between GNB
Technologies S.A. and Batinorest S.A. and Societe de Development Regional
du Nord et du Pas-de Calais and SMAEZI expiring on 30 November 2010 at a
credited sum of FF 7,200,000.
2. Lease of the above premises dated 16 March 1993 as amended by a lease dated
30 November 1995 and a lease of 1 November 1996 between Ansell Edmont
Europe N.V. and Universal Express N.V., and further amended by an undated
lease entered into, following formation of GNB Technologies N.V., by GNB
Technologies N.V. and Universal Express N.V. at a rent of BF 92,000 per
month and expiring on 31 October 2005 or by earlier termination at the end
of year 3 or 6 by six months' written notice from either party.
3. Lease of room in office hotel at the above premises dated 1 January 1997
between Libella Oy and Oy GNB Technologies AB until further notice at a
rent of FIM 5324 plus VAT (22%) per month, terminable by three months'
written notice to be given before 31 December of each year by either party.
4. Lease of room in office hotel at the above premises dated 30 June 1998
between GNB Technologies s.r.l. and Giquattro s.r.l. at a rent of ITL
1,170,000 plus VAT per month, for an initial period of six months ending 31
December 1998 with automatic renewal for consecutive periods of six months'
each unless terminated by 30 days written notice expiring on the renewal
date.
5. Lease of room in office hotel at the above premises dated 16 April 1998 and
beginning on 15 June 1998 between GNB Technologies GmbH and Inter Offices
Burodienst GmbH at
6
<PAGE>
a rent of DEM 2,240 plus VAT (16%) per month, terminable by three months'
written notice expiring at the end of the calendar month.
7
<PAGE>
SCHEDULE 4
Principal Assets
----------------
Nothing to disclose.
8
<PAGE>
SCHEDULE 5
Intellectual Property
---------------------
The Group Companies sell products manufactured by their U.S. Affiliate, GNB
Industrial Battery Company. All trademarks, patent rights and other Intellectual
Property necessary for the Group Companies to acquire and/or sell these products
are the subject of an implied license from GNB Industrial Battery Company, which
is responsible for acquiring and maintaining appropriate registrations with
respect thereto.
9
<PAGE>
SCHEDULE 6
Surviving Intercompany Agreements
---------------------------------
1. Commissionaire Agreement between GNB and GNB Germany dated February 24,
1998.
2. Commissionaire Agreement between GNB and GNB Technologies Limited dated
February 26, 1998.
3. Commissionaire Agreement between GNB and GNB Italy dated February 26, 1998.
4. Commissionaire Agreement between GNB and GNB Finland dated February 26,
1998.
5. Commissionaire Agreement between GNB and GNB France dated February 26,
1998.
6. Commissionaire Agreement between GNB France and GNB Germany (undated).
7. Commissionaire Agreement between GNB France and GNB Finland dated February
26, 1998.
8. Commissionaire Agreement between GNB France and GNB Italy dated February
26, 1998.
9. Commissionaire Agreement between GNB France and GNB Technologies Limited
dated February 26, 1998.
10
<PAGE>
STOCK PURCHASE AGREEMENT
WITH RESPECT TO GNB TECHNOLOGIES LIMITED
Dated as of 28 June 2000
between
Pacific Dunlop Holdings (Europe) Ltd., as Seller,
and
Exide Holding Europe, as Buyer.
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<S> <C>
ARTICLE 1. DEFINITIONS............................................ 1
Section 1.1. Definitions........................................ 1
ARTICLE 2. SALE AND PURCHASE...................................... 6
Section 2.1. Sale and Purchase of the Shares.................... 6
Section 2.2. Purchase Price..................................... 6
ARTICLE 3. CLOSING................................................ 6
Section 3.1. Closing : time and location........................ 6
Section 3.2. Documents to be Delivered to the Buyer at Closing.. 7
Section 3.3. Seller Obligations Closing......................... 7
Section 3.4. Buyer's Obligations at Closing..................... 8
Section 3.5. Form of Documents.................................. 8
Section 3.6. Post-Closing Matters............................... 8
ARTICLE 4. REPRESENTATIONS AND WARRANTIES REGARDING THE SELLER.... 9
Section 4.1. Organisation....................................... 9
Section 4.2. Power and Authority................................ 9
Section 4.3. Agreement Binding.................................. 9
Section 4.4. Absence of Conflicts............................... 10
Section 4.5. No Litigation...................................... 10
Section 4.6. Title to Shares.................................... 10
Section 4.7. No Advisor......................................... 11
ARTICLE 5. REPRESENTATIONS AND WARRANTIES REGARDING GNB........... 11
Section 5.1. Organisation....................................... 11
Section 5.2. Share Capital...................................... 11
Section 5.3. Subsidiaries and Investments....................... 12
Section 5.4. Absence of Conflicts............................... 12
Section 5.5. No Violation or Litigation......................... 12
Section 5.6. Operations Since June 30, 1999..................... 13
Section 5.7. Returns, Elections and Appeals..................... 14
Section 5.8. Title to Assets.................................... 16
Section 5.9. Real Property...................................... 16
Section 5.10. Assets............................................. 16
Section 5.11. Asset Leases....................................... 16
Section 5.12. Licences........................................... 17
Section 5.13. Intellectual Property.............................. 17
Section 5.14. Employees, etc..................................... 17
Section 5.15. Trade Disputes..................................... 18
Section 5.16. Payments on Termination............................ 18
Section 5.17. Claims............................................. 19
Section 5.18. Pensions........................................... 19
Section 5.19. Commercial Contracts............................... 19
Section 5.20. Status of Contracts................................ 20
Section 5.21. Environmental Matters.............................. 20
Section 5.22. Bank Accounts, Guarantees and Powers............... 21
</TABLE>
i
<PAGE>
<TABLE>
<S> <C>
Section 5.23. Accounts and Records................................... 22
Section 5.24. Insurance.............................................. 22
Section 5.25. Product Warranties..................................... 22
Section 5.26. No Misrepresentation................................... 23
Section 5.27. Sufficiency of Assets.................................. 23
Section 5.28. Powers of Attorney..................................... 23
ARTICLE 6. REPRESENTATIONS AND WARRANTIES REGARDING THE BUYER......... 23
Section 6.1. Organisation........................................... 23
Section 6.2. Power and Authority.................................... 23
Section 6.3. Agreement Binding...................................... 23
Section 6.4. Absence of Conflicts................................... 23
Section 6.5. No Litigation.......................................... 24
Section 6.6. Investment Representation.............................. 24
Section 6.7. No Advisor............................................. 24
Section 6.8. No Misrepresentation................................... 24
ARTICLE 7. ACTION PRIOR TO THE CLOSING DATE........................... 25
Section 7.1. Preserve Accuracy of Representations and Warranties.... 25
Section 7.2. Notification of Changes................................ 25
Section 7.3. Governmental Approvals................................. 25
Section 7.4. Operations Prior to the Closing Date................... 25
Section 7.5. Intercompany Agreements................................ 26
Section 7.6. General................................................ 26
Section 7.7. Preservation of Business............................... 26
ARTICLE 8. CONDITIONS TO CLOSING...................................... 26
Section 8.1. Buyer.................................................. 26
Section 8.2. Seller................................................. 27
ARTICLE 9. TERMINATION................................................ 29
Section 9.1. Termination............................................ 29
Section 9.2. Effect of Termination.................................. 29
Section 9.3. Notice of Termination.................................. 29
ARTICLE 10. EXCLUSIVITY OF REMEDY...................................... 30
Section 10.1. Indemnification by the Seller.......................... 30
Section 10.2. Indemnification by the Buyer........................... 30
Section 10.3. Exclusivity of Remedy.................................. 30
ARTICLE 11. GENERAL PROVISIONS......................................... 30
Section 11.1. Notices................................................ 30
Section 11.2. Confidential Information............................... 32
Section 11.3. No Public Announcement................................. 33
Section 11.4. Entire Agreement; Amendments........................... 33
Section 11.5. Successors and Assigns................................. 33
Section 11.6. Interpretation......................................... 33
Section 11.7. Waivers................................................ 34
Section 11.8. Expenses............................................... 34
Section 11.9. Partial Invalidity..................................... 34
Section 11.10. Execution in Counterparts.............................. 34
Section 11.11. Governing Law.......................................... 35
</TABLE>
ii
<PAGE>
<TABLE>
<S> <C>
Section 11.12. Further Assurances and Cooperation................. 35
Section 11.13. No Reliance........................................ 35
Section 11.14. Insurance Matters.................................. 35
Section 11.15. Disclosure Letter.................................. 36
</TABLE>
SCHEDULES
1 Particulars of GNB
2 The Real Property
3 Principal Assets
4 Intellectual Property
5 Surviving Intercompany Agreements
iii
<PAGE>
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT dated as of 28 June 2000 (the "Agreement") is
executed by and among PACIFIC DUNLOP HOLDINGS (EUROPE) LIMITED, a company
incorporated in England and Wales under company number 1458684 (the "Seller"),
whose registered office is at Ansell House, 119 Ewell Road, Surbiton, Surrey,
KT6 6AL, and Exide Holding Europe, a company incorporated in France (the
"Buyer").
WHEREAS:
A. The Seller owns the entire issued share capital of GNB (as defined in
this Agreement).
B. The Buyer desires to purchase from the Seller, and the Seller desires
to sell to the Buyer, the entire issued share capital of GNB on the terms and
subject to the conditions in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, the Seller and the Buyer agree as follows:
ARTICLE 1.
DEFINITIONS
Section 1.1. Definitions. In this Agreement, unless the context otherwise
-----------
requires, the following terms have the meanings specified or referred to in this
Section 1.1 and shall be equally applicable to both the singular and plural
-----------
forms. Any agreement referred to below shall mean such agreement as amended,
supplemented and modified from time to time to the extent permitted by the
applicable provisions thereof and by this Agreement.
"Action" means any lawsuit, arbitration, or regulatory, governmental or
other proceeding or investigation whether at law or in equity.
"Adjoining Properties" shall mean all sites or locations other than the
Real Property or the PRP Sites to which Contaminants have migrated from the Real
Property through air, soil, surface water or groundwater.
"Affiliate" means, with respect to any Person, any other Person which
directly or indirectly controls, is controlled by or is under common control
with such Person.
"Agreement" has the meaning specified in the first paragraph of this
Agreement.
1
<PAGE>
"Business" means: (i) the marketing of starting-lighting-ignition
automotive and specialty batteries and supplying original equipment
manufacturers and replacement market customers with batteries for passenger
cars, light and heavy-duty trucks, golf carts, motorcycles, garden tractors and
marine use and related activities; and (ii) the marketing of batteries and
allied products, parts and service for industrial applications; in each case, as
conducted by GNB at the Real Property immediately prior to the Closing Date.
"Business Day" means a day other than Saturday, Sunday or a day on which
United States national banks are closed.
"the Buyer" has the meaning specified in the first paragraph of this
Agreement.
"the Buyer Ancillary Agreements" means all agreements, instruments and
documents being or to be executed and delivered by the Buyer under this
Agreement.
"Closing" has the meaning specified in Section 3.1.
-----------
"Closing Date" has the meaning specified in Section 3.1.
-----------
"Companies Act" means the Companies Act 1985 of the United Kingdom, as
amended as of the Closing Date.
"Confidential Information" has the meaning specified in Section 11.2.
------------
"Coordinating Agreement" means that certain coordinating agreement dated 9
May 2000 between Exide Corporation, a Delaware corporation, and Pacific Dunlop
Holdings (USA) Inc., a Delaware corporation, as amended and supplemented from
time to time.
"Court Order" means any judgement, order, award or decree of any foreign,
federal, state, or local court or tribunal or governmental agency and any award
in any arbitration proceeding in any jurisdiction.
"Disclosure Letter" means the letter dated 12 June 2000 the Buyer, as
modified pursuant to Section 5.7 of the Coordinating Agreement.
"Employees" has the meaning specified in Section 5.18(a).
---------------
"Employee Plan" has the meaning specified in the Principal US Agreement.
"Encumbrance" means any lien, charge, security interest, mortgage, pledge,
power of sale, easement, encroachment, covenant, restriction on transfer or
other restriction on or defect in title or other encumbrances.
"Environmental Laws" means all applicable statutory, international, treaty,
conventions and local laws, regulations, codes of practice, circulars and
guidance notes relating to pollution or human health or the environment (as
defined in Section 1(2) of the Environmental Protection Act 1990 of the United
Kingdom) (including ambient air, surface water, ground water, tidal water and
the foreshore between high and low tide, land surface or sub-surface strata),
including,
2
<PAGE>
without limitation, those relating to Environmental Matters or otherwise
relating to the manufacture, possessing, distribution, use, processing,
treatment, storage, disposal, transport or handling of Hazardous Materials
currently in effect applicable to the operations of the Business.
"Environmental Matters" means waste, land including contaminated land,
aquatic environment, discharges, emissions, noise and vibration, heat, light and
radiation, dangerous, hazardous or toxic substances and materials, nuisance and
health and safety.
"Expenses" means any and all reasonable expenses incurred in connection
with investigating, defending or asserting any Action or overtly threatened
Action (including court filing fees, court costs, arbitration fees or costs,
witness fees, and reasonable fees and disbursements of legal counsel,
investigators, expert witnesses, accountants and other professionals).
"Financial Statements" has the meaning specified in the Coordinating
Agreement.
"FRS" means Financial reporting standards issued by the Accounting
Standards Board.
"GNB" means GNB Technologies Limited a company incorporated in England and
Wales under company number 3396707 whose registered office is at 51 Eastcheap,
London EC3M 1JP.
"GNB Agreements" has the meaning specified in Section 5.20.
------------
"GPP" has the meaning specified in Section 5.18(d).
---------------
"Governmental Body" means any foreign, United Kingdom, European Community,
European Union, United States, state, or local governmental authority, agency or
regulatory body.
"Governmental Permit" has the meaning specified in the Principal US
Agreement.
"Harm" means harm defined in section 1(4) of the Environmental Protection
Act 1990 of the United Kingdom.
"Hazardous Materials" means chemicals, pollutants, contaminants, waste,
petroleum, petroleum hydro-carbon products, explosives, radioactive substances,
dangerous, hazardous or toxic substances and materials including the substances
prescribed in schedules 4, 5 and 6 of the Environmental Protection (Prescribed
Processes and Substances) Regulations 1991 of the United Kingdom or any
statutory modification thereof and other substances possessing any of the
hazardous properties listed in part II of Schedule 2 of the Special Waste
Regulations 1996 of the United Kingdom capable of polluting land, water of air
or which causes Harm.
"ICTA 1988" means the Income and Corporation Taxes Act 1988 of the United
Kingdom, as amended as of the Closing Date.
"Insurance Policies" means the insurance policies of GNB referred to in
Section 11.14.
-------------
3
<PAGE>
"Intellectual Property" has the meaning specified in Section 5.13(a).
---------------
"Intercompany Agreements" means agreements between GNB or a Subsidiary and
an Affiliate of GNB other than GNB and any Subsidiary.
"June 30, 1999 Balance Sheet" has the meaning specified in the Coordinating
Agreement, including the notes to such balance sheet.
"KPMG" means KPMG LLP or its successor.
"Knowledge of the Seller" or similar phrases means matters actually known
to Thomas Minner, Thomas Smith, Thomas O'Hare, Mitchell Bregman, Barbara
Hatcher, Rolf Fehndrich, Bart de Keyser or Jeff Kostos.
"Knowledge of the Seller Regarding Environmental Matters" or similar
phrases means matters actually known to Rolf Fehndrich or Barbara Hatcher.
"Licences" has the meaning specified in Section 5.12.
------------
"Losses" means all losses, obligations, liabilities, settlement payments,
awards, judgements, fines, assessments, penalties, and damages.
"March 31, 2000 Balance Sheet" has the meaning specified in the
Coordinating Agreement, including the notes to such balance sheet.
"Material Adverse Effect" means any event, occurrence or condition (other
than as a result of general economic conditions or events or conditions
affecting the automotive and industrial battery industry as a whole) which has,
or could reasonably be expected to have, a material adverse effect on the
financial condition, assets, results of operations, Business, or operations of
GNB, taken as a whole.
"Person" means any individual, corporation, partnership, limited liability
company or corporation, joint venture, association, trust, unincorporated
organisation, or Governmental Body.
"Principal US Agreement" means the Stock Purchase Agreement With Respect To
Pacific Dunlop GNB Corporation dated May 9, 2000 between Pacific Dunlop Holdings
(USA) Inc., as Seller; and Exide Corporation, as Buyer, as amended and
supplemented from time to time.
"PRP Sites" shall mean all sites (other than the Real Property and the
Adjoining Properties) with respect to which GNB, a Subsidiary, or any of their
successors or assignees have or may have liability under any Environmental Law.
"Purchase Price" has the meaning specified in Section 2.2.
-----------
4
<PAGE>
"Real Property" means leasehold property held by GNB, brief details of
which are set out in Schedule 2.
"Release" includes any and all spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaking, dumping,
disposing, and any other means by which a substance may be introduced into or
travel through the environment.
"Remedial Action" shall include all actions required by a Court Order or
otherwise by a Governmental Body to: (i) clean up, remove, remediate, contain,
treat, monitor, assess, evaluate or in any other way address Hazardous
Materials; (ii) prevent the Release or threatened Release of Hazardous
Materials; or (iii) investigate and determine if a remedial response is needed
and to design such a response and post-remedial investigation, monitoring,
operation and maintenance.
"Requirements of Law" means any applicable law, regulation, bylaw, code or
ordinance of any Governmental Body currently in effect.
"ROW Agreements" has the meaning specified in Section 5.5(e) of the
Coordinating Agreement.
"Schemes" has the meaning specified in Section 5.18(a).
---------------
"The Seller" has the meaning specified in the first paragraph of this
Agreement.
"The Seller Ancillary Agreements" means all agreements, instruments and
documents being or to be executed and delivered by the Seller under this
Agreement.
"Shares" means the 239,644 fully paid issued ordinary shares of (pound)1
each in the share capital of GNB constituting its entire issued share capital.
"SSAP" means a Statement of standard accounting practice adopted by the
Accounting Standards Board.
"Subsidiary" shall have the meaning ascribed to it in sections 736 and 736A
of the Companies Act.
"Tax Authority" means any governmental, federal, state, provincial, local
governmental or other, fiscal, tax, revenue, customs duties or excise authority
body or official whether of the United Kingdom or elsewhere in the world.
"Tax" means any and all forms of taxes, levies, imposts, contributions,
duties and charges and all withholdings or deductions in respect thereof, in the
nature of and corresponding to Tax imposed by any Tax Authority acting as such
whether directly or primarily chargeable against, recoverable from or
attributable to GNB or any other person, and all fines, penalties, charges,
costs and interest relating thereto and "Taxation" shall be construed
accordingly.
"Tax Return" means any return, report notice, computation, or similar
statement required to be filed with respect to any Tax (including any attached
schedules), including,
5
<PAGE>
without limitation, any information return, claim for refund, amended return and
declaration of estimated Tax.
ARTICLE 2.
SALE AND PURCHASE
Section 2.1. Sale and Purchase of the Shares.
-------------------------------
(a) On the terms and subject to the conditions of this Agreement, on the
Closing Date, the Seller shall sell, transfer, assign, convey and deliver to the
Buyer, and the Buyer shall purchase from the Seller, the Shares free and clear
from all Encumbrances together with all rights and benefits attaching or
accruing to such Shares at Closing.
(b) Title to beneficial ownership of, and any risk attaching to the Shares
shall pass on the Closing and the Buyer shall, from the Closing Date, be
entitled to exercise all rights attached or accrued to the Shares including,
without limitation, the right to receive all dividends, distributions or any
return of capital made or paid by GNB on or after the Closing Date.
(c) The Buyer shall not be obliged to complete the purchase of any of the
Shares unless the purchase of all the Shares is completed simultaneously.
Section 2.2. Purchase Price.
--------------
The purchase price (the "Purchase Price") shall be equal to One Million
Seven Hundred Seventy Nine Thousand United States Dollars (US$1,779,000). At the
Closing, the Buyer shall pay the Purchase Price to the Seller by wire transfer
of immediately available funds to such bank account as the Seller shall direct
in writing. After Closing, the Purchase Price shall be adjusted pursuant to
Article 2 of the Coordinating Agreement.
ARTICLE 3.
CLOSING
Section 3.1. Closing: time and location.
--------------------------
Completion of the sale and purchase of the Shares (the "Closing") shall
take place at 10:00 a.m. Chicago time on the last Business Day of the month in
which the last of the conditions specified in Article 8 is satisfied or waived
at the offices of at Gardner, Carton & Douglas at 321 North Clark Street,
Chicago, Illinois, or at such other time or place as shall be agreed upon by the
Seller and the Buyer. Notwithstanding the foregoing, if the date upon which the
last of the conditions specified in Article 8 is satisfied or waived is five (5)
or fewer Business Days before the last day of the month, then the Closing shall
be consummated on the fifth (5th) Business Day following the date upon which the
last of such conditions was satisfied or waived, or such other date as may be
agreed upon by Buyer and Seller. The time and date on which the Closing is
completed is referred to herein as the "Closing Date". The Closing shall be
effective as of close of business on the Closing Date.
6
<PAGE>
Section 3.2. Documents to be Delivered to the Buyer at Closing.
-------------------------------------------------
At Closing, the Seller shall deliver to the Buyer or as the Buyer may
direct:
(a) a duly executed and completed transfer of the Shares in favour of the
Buyer or as the Buyer may direct together with the relative share certificates
(or an indemnity in a form reasonably satisfactory to the Buyer in respect of
any share certificates which are missing) and any power of attorney under which
such transfer has been executed;
(b) duly executed transfers of any of the Shares held by nominees in
favour of the Buyer or as the Buyer may direct;
(c) duly executed counterparts of the Seller Ancillary Agreements;
(d) a closing certificate of the Seller in a form reasonably satisfactory
to the Buyer certifying as to the accuracy of the Seller's representations and
warranties at and as of the Closing and that the Seller has performed and
complied with all of the terms, provisions and conditions to be performed and
complied with by the Seller at or before the Closing;
(e) a certificate of the Company Secretary or an Assistant Company
Secretary of the Seller in a form reasonably satisfactory to the Buyer dated the
Closing Date, certifying as to: (i) the Seller's articles of association, (ii)
the passing of resolutions of the Seller's board of directors, authorising the
execution and performance of this Agreement, the Seller Ancillary Agreements,
and the transactions contemplated hereby; and (iii) evidence of due appointment
and signatures of its officers executing this Agreement and any Seller Ancillary
Agreement;
(f) the written resignations of their respective offices executed as a
deed by each of the directors and the company secretary as may be required to
resign by the Buyer effective as of the Closing Date;
(g) the certificate of incorporation and any certificates of incorporation
on change of name, the share register, share certificate books (with any
unissued share certificates), all minute books and other statutory books (which
shall be written up to but not including the Closing Date), and the common seal
of GNB;
(h) the resignation of the auditors of GNB in accordance with section 392
of the Companies Act confirming that they have no outstanding claims of any kind
against GNB and containing a statement complying with section 394(1) of the
Companies Act; and
(i) such other certificates and documents as the Buyer or its Counsel may
reasonably request.
Section 3.3. Seller Obligations Closing
--------------------------
At the Closing, the Seller shall be obligated to:
(a) cause those persons nominated by the Buyer who have duly consented to
act as Directors of GNB, to be validly appointed as additional directors and the
person nominated by
7
<PAGE>
the Buyer who has duly consented to act as secretary of GNB to be validly
appointed as company secretary of GNB; and
(b) on such appointments referred to in section 3.3(a) being made, cause
the persons referred to in section 3.2(f) to cease to be directors and the
company secretary of GNB.
Section 3.4. Buyer's Obligations at Closing.
------------------------------
Upon completion of all the matters referred to in Section 3.2 (and only
-----------
upon such completion) the Buyer shall be obliged to deliver to the Seller:
(a) duly executed counterparts of the Buyer Ancillary Agreements;
(b) a closing certificate of the Buyer in a form reasonably satisfactory
to the Seller certifying as to the accuracy of the Buyer's representations and
warranties at and as of the Closing and that Buyer has performed and complied
with all of the terms, provisions and conditions to be performed and complied
with by the Buyer at or before the Closing;
(c) a certificate of the Company Secretary or an Assistant Company
Secretary of the Buyer in a form reasonably satisfactory to the Seller, dated
the Closing Date, certifying as to: (i) the Buyer's articles of association (or
other like constitutional document), (ii) the passing of resolutions of the
Buyer's board of directors, authorising the execution and performance of this
Agreement, the Buyer Ancillary Agreements, and the transactions contemplated
hereby; and (iii) evidence of due appointment and signatures of its officers
executing this Agreement and any Buyer Ancillary Agreement;
(d) the written consent of each of the persons named in Section 3.3(a)
--------------
to serve as director or company secretary, as the case may be; and
(e) such other certificates and documents as the Seller or its Counsel may
reasonably request.
Section 3.5. Form of Documents.
-----------------
The documents and instruments referred to in Sections 3.2 and 3.4 shall be
------------ ---
satisfactory as to form to counsel for the party to whom they are delivered.
Section 3.6. Post-Closing Matters.
--------------------
(a) The Seller hereby declares that for so long as it remains the
registered holder of any of the Shares after Closing it will:
(i) hold the Shares and the dividends and other distributions of
profits or surplus or other assets declared, paid or made in respect of
them after Closing and all rights arising out of or in connection with them
in trust for the Buyer and its successors in title; and
8
<PAGE>
(ii) deal with and dispose of the Shares and all such dividends,
distributions and rights as are described in Section 3.6(a)(i) as the Buyer
or any such successor may direct.
(b)
(i) The Seller hereby appoints the Buyer as its lawful attorney for
the purpose of receiving notices of and attending and voting at all
meetings of the members of GNB from Closing to the date on which the Buyer
or its nominee is entered in the register of members of GNB as the holder
of the Shares.
(ii) For such purpose the Seller hereby authorises:
(A) GNB to send any notices in respect of its holding
of Shares to the Buyer; and
(B) the Buyer to complete in such manner as it thinks fit and to
return proxy cards, consents to short notice and any other
document required to be signed by it in its capacity as a
member.
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES REGARDING THE SELLER
The Seller represents and warrants to the Buyer as follows:
Section 4.1. Organisation.
------------
The Seller has been duly incorporated and validly exists under the laws of
England.
Section 4.2. Power and Authority.
-------------------
The Seller has the full corporate power and authority to execute and
deliver this Agreement and the Seller Ancillary Agreements and to perform its
obligations hereunder and thereunder. The Seller's execution, delivery and
performance of this Agreement and each of the Seller Ancillary Agreements has
been duly authorised and approved by all necessary corporate action.
Section 4.3. Agreement Binding.
-----------------
This Agreement and each of the Seller Ancillary Agreements has been duly
executed and delivered by the Seller and, assuming due authorisation, execution
and delivery by the Buyer, is the legal, valid and binding obligation of the
Seller enforceable against the Seller in accordance with their respective terms,
subject to general principles of equity and except as enforceability may be
limited by applicable bankruptcy, insolvency, fraudulent transfer,
reorganisation, moratorium or other similar laws of general application relating
to creditors' rights generally.
9
<PAGE>
Section 4.4. Absence of Conflicts.
--------------------
The execution, delivery and performance of this Agreement and the Seller
Ancillary Agreements and the performance of the Seller's obligations hereunder
and thereunder will not:
(a) conflict with, result in a breach of the terms, conditions or
provisions of, or constitute a default, an event of default or an event creating
rights of acceleration, termination or cancellation, or result in the
termination or result in the creation, imposition or crystallisation of any
Encumbrance upon the Shares or any assets of GNB under:
(i) any term or provision of the memorandum or articles of
association of the Seller; or
(ii) any note, instrument, contract, agreement, mortgage, indenture,
lease, license or franchise to which the Seller or any Affiliate of Seller
is a party or by which it or any of its assets is bound; or
(iii) any Court Order; or
(iv) any Requirements of Law;
except for any of the foregoing which, individually or in the aggregate is or
are not likely to have a Material Adverse Effect or hinder or impair the
completion of the transactions contemplated hereby; or
(b) require the approval, consent, authorisation or act of, or the making
by the Seller or any Affiliate of Seller of any declaration, notification,
filing or registration with any Person, except for any of the foregoing which,
individually or in the aggregate, if not taken, is or are not likely to have a
Material Adverse Effect, or materially hinder or impair the consummation of the
transactions contemplated hereby.
Section 4.5. No Litigation.
-------------
There is no Action pending or, to the Knowledge of the Seller, threatened,
which challenges the legality or propriety of the transactions contemplated by
this Agreement or the Seller Ancillary Agreements or which impairs the
completion of the transactions contemplated hereby or thereby.
Section 4.6. Title to Shares.
---------------
The Seller is the sole legal and beneficial owner of the Shares and such
Shares are free and clear of all Encumbrances, and the Seller has full right and
power to vote and dispose of such Shares as contemplated herein. The Seller is
not a party to any option, warrant, purchase right, or other contract or
commitment that could require the Seller to sell, transfer, or otherwise dispose
of any of the Shares (other than this Agreement). The Seller is not a party to
any voting trust, proxy, or other agreement or understanding with respect to the
voting of any of the Shares.
10
<PAGE>
Section 4.7. No Advisor.
----------
Neither the Seller nor any Affiliate of Seller nor any Person acting on its
or their behalf, has retained any advisor, broker, investment banker or
financial advisor in connection with this Agreement or any transaction
contemplated hereby for which the Buyer or GNB may be liable.
ARTICLE 5.
REPRESENTATIONS AND WARRANTIES REGARDING GNB
The Seller represents and warrants to the Buyer as follows:
Section 5.1. Organisation.
------------
(a) GNB is a private company limited by shares and has been duly
incorporated and validly exists under the laws of England and Wales. The Seller
has delivered to the Buyer complete and correct copies of GNB's certificate of
incorporation and certificate(s) of incorporation on change of name and a copy
of its memorandum and articles of association as currently in force. GNB is not
in violation of any provision of its memorandum or articles of association and
GNB has all requisite corporate power and authority to hold its property under
lease, to own or lease its assets and to carry on its business as currently
conducted and to operate the property and assets now being operated by it. The
particulars of GNB are set forth in Schedule 1.
(b) All filings required by law to be made by GNB have been properly made
and all registers and minute books required by law to be kept by GNB have been
properly written up and such registers and minute books contain an accurate and
complete record of the matters which should be dealt with therein and GNB has
not received any application or request for rectification of its statutory
registers or any notice or allegation that any of them is incorrect.
Section 5.2. Share Capital.
-------------
The authorised share capital of GNB consists of 250,000 ordinary shares of
(pound)1 each of which 239,644 have been issued. All the Shares are legally and
beneficially owned by the Seller. The Shares comprise the whole of the issued
and allotted share capital of GNB and have been properly and validly issued, are
fully paid or credited as fully paid and have not been issued in violation of
any pre-emptive or other rights arising under statute, contract or otherwise.
GNB has no outstanding subscriptions, options, warrants, rights, agreements or
other commitments granting to any Person any interest in or right to acquire any
of their its securities, including, without limitation, the Shares, or any
interest therein. GNB has not issued any instrument or security convertible
into, or exchangeable for, the Shares or other shares, and there is no agreement
or understanding to which GNB or the Seller is a party or by which either of
them is bound with respect to the voting of the Shares. GNB is under no
obligation, whether contingent or otherwise, to issue or repurchase any of its
Shares or to make any dividend or distribution payments based on its revenues,
profits or net income.
11
<PAGE>
Section 5.3. Subsidiaries and Investments.
----------------------------
GNB has no Subsidiaries. GNB does not own, directly or indirectly, any
stocks, shares, bonds or securities or any equity or other proprietary interest
in any Person.
Section 5.4. Absence of Conflicts.
--------------------
The execution and completion of this Agreement and the Seller Ancillary
Agreements, and the transactions contemplated or provided for in any of them,
will not:
(a) conflict with, result in a breach of the terms, conditions or
provisions of, or constitute a default, an event of default or an event creating
rights of acceleration, termination or cancellation, or result in the
termination of, or result in the creation, imposition or crystallisation of any
Encumbrance upon the Shares or any assets of GNB under:
(i) any term or provision of the memorandum or articles of
association of GNB; or
(ii) any note, instrument, contract, agreement, mortgage, indenture,
lease, licence or franchise to which GNB is a party or by which it or any
of its assets is bound;
(iii) any Court Order; or
(iv) any Requirements of Law;
except for any of the foregoing which, individually or in the aggregate, is
or are not likely to have a Material Adverse Effect or will not or is not
likely to hinder or impair the exchange and completion of this Agreement or
any of the transactions contemplated or provided for hereby and thereby; or
(b) require the approval, consent, authorisation or act of, or the making
by GNB of, any declaration, notification, filing or registration with any
Person, except for any of the foregoing which, individually or in the aggregate,
is or are not likely to have a Material Adverse Effect or materially hinder or
impair the consummation of the transactions contemplated hereby and thereby.
Section 5.5. No Violation or Litigation.
--------------------------
(a) GNB has complied and is in compliance with all Court Orders and
Requirements of Law which are applicable to GNB and its business, except for
such Requirements of Law as to which noncompliance is not likely to have a
Material Adverse Effect; and
(b) there is no Action pending or, to the Knowledge of the Seller,
threatened, against GNB or any of its assets and there has not been, to the
Knowledge of the Seller, any claim asserted by any Person that could lead to an
Action and neither GNB nor any of its assets is subject to any currently pending
Court Order. To the Knowledge of the Seller, there is no Action pending or
threatened against any officer or director of GNB arising out of his or her
service as an officer or director of GNB.
12
<PAGE>
Section 5.6. Operations Since June 30, 1999.
------------------------------
Except as reflected in the March 31, 2000 Balance Sheet, since June 30,
1999:
(a) there has been no material adverse change in the business, operations,
assets, or financial condition of GNB taken as a whole. The termination of any
Intercompany Agreement not listed in Schedule 5 will not have a Material Adverse
----------
Effect;
(b) Except as reflected in the March 31, 2000 Balance Sheet, GNB has
conducted its business in the ordinary course and has not:
(i) made any material change in operations;
(ii) made any capital expenditure or entered into any contract or
commitment in excess of the capital expenditures disclosed in the "Fiscal
Year 2000 Open Sanction Summary" attached to Schedule 5.7(B) of the
---------------
Principal US Agreement;
(iii) sold, leased (as lessor), assigned, transferred or otherwise
disposed of, or imposed or suffered to be imposed any Encumbrance on, any
of the assets, except for inventory and other personal or real property
sold, leased or otherwise disposed of for fair value in the ordinary course
of business consistent with past practice and except for Permitted
Encumbrances (as defined in the Principal US Agreement);
(iv) cancelled any debts owed to or claims held (including the
settlement of any Action) other than in the ordinary course of business
consistent with past practice;
(v) created, incurred or assumed, or agreed to create, incur or
assume, any indebtedness for borrowed money or entered into, as lessee, any
lease obligations which are subject to SSAP 21 or FRS 5 or guaranteed any
such indebtedness or leases of others or made any loans other than in the
ordinary course of business consistent with past practice;
(vi) written off as uncollectible or accelerated or delayed
collection of notes or amounts receivable in advance of or beyond their
regular due dates or the dates when the same would have been collected
other than in the ordinary course of business consistent with past
practice;
(vii) delayed or accelerated payment of any accounts payable or other
liabilities beyond or in advance of their due date or the date when such
liabilities would have been paid other than in the ordinary course of
business consistent with past practice;
(viii) made any distribution of assets (including payments of cash) to
any of its Affiliates (not including the Seller or any of its Subsidiaries)
other than pursuant to agreements entered into in the ordinary course of
business consistent with past practice or declared or paid any
distributions (provided that Seller shall have the right to remove and
retain all cash held by GNB) or redeemed, reclassified or purchased or
otherwise acquired any shares of its capital stock or authorised or issued
any shares of its capital stock or any option, warrant or other right to
purchase or acquire any such shares; or
13
<PAGE>
(ix) entered into, or amended, any employment, severance or similar
agreement or arrangement or made any increases in the wages, bonuses, and
benefits of its employees (other than any increases made in the ordinary
course of business consistent with past practice);
(x) waived any rights or settled any claims, except for such
waivers or settlements granted or entered into in the ordinary course of
business;
(xi) made any change to its method of accounting;
(xii) suffered or incurred any damage, destruction, fire, explosion,
accident, flood or other casualty loss or act of God (whether or not
covered by insurance) to any material operating asset or group of operating
assets;
(xiii) entered into or amended any purchase and sale contract outside
the ordinary course of business;
(xiv) suffered any amendments, termination, suspension or revocation
of, any Governmental Permit;
(xv) adopted an Employee Plan or amended or modified any already
existing Employee Plan;
(xvi) amended its articles of association;
(xvii) manufactured inventory in excess of its expected needs; or
(xviii) where applicable, agreed to do any of the foregoing.
Section 5.7. Returns, Elections and Appeals.
------------------------------
(a) GNB has properly and within the requisite periods made all proper
returns which at any time it has been liable to make or provide for any purposes
of Tax.
(b) GNB has duly and within the requisite periods made or given all
elections, claims, notices and which are assumed to have been made or given in
computing the charge or provision for GNB (if any) for Tax in, or in preparing
the Financial Statements.
(c) GNB has duly and within the requisite periods accounted for or paid
all Tax which it is liable to account for or pay.
(d) No appeal is currently outstanding against any assessment or other
demand in respect of any Tax.
(e) PAYE and National Insurance. GNB has properly operated the PAYE and
National Insurance contributions systems by making such deductions as are
required by law from all payments made or deemed to be or treated as made by it
or on its behalf, and by duly accounting to the United Kingdom Inland Revenue
for all sums so deducted and for all other
14
<PAGE>
amounts for which it is required to account under the PAYE and National
Insurance contributions systems.
(f) Valued Added Tax Act of 1994 ("VATA 1994"). The Company is registered
for the purposes of the VATA 1994 and has made, given, obtained and kept full,
complete and up to date records, invoices and other documents appropriate or
required for those purposes and is not in arrears with any payments or returns
due and has not been required by the Commission of Customs & Excise to give
security under Paragraph 4 of Schedule 1 VATA 1994.
(g) All Taxes payable upon the importation of goods and all excise duties
payable to HM Customs & Excise payable in respect of any assets (including
trading stock) imported, owned or used by GNB have been paid in full.
(h) Except as set forth in the Disclosure Letter, no deficiency or
proposed adjustment (which has not settled or otherwise resolved) for any amount
of Tax has been proposed, asserted or assessed by any taxing authority against
GNB or its Subsidiaries.
(i) Except as set forth in the Disclosure Letter, there is no action,
suit, taxing authority proceeding or audit now in progress, pending or, to the
Knowledge of Seller, threatened against or with respect to GNB or its
Subsidiaries.
(j) Except as set forth in the Disclosure Letter, no claim has ever been
made by a taxing authority in a jurisdiction where GNB or its Subsidiaries,
respectively, do not file Tax Returns that such entity is or may be subject to
Taxes assessed by such jurisdiction.
(k) Except as set forth in the Disclosure Letter, GNB and its Subsidiaries
will not be required (A) as a result of a change in method of accounting for a
taxable period ending on or prior to the Closing Date, to include any adjustment
in taxable income for any taxable period (or portion thereof) ending after the
Closing Date, (B) as a result of any Requirement of Law relating to taxation
matters to include any item of income in, or exclude any item of deduction from,
taxable income for any taxable period (or portion thereof) ending after the
Closing Date, (C) as a result of any Requirement Law relating to taxation
matters, to include any item of income in taxable income for any taxable period
(or portion thereof) ending after the Closing Date or (D) any installment sale
made or prepaid income attributable to a taxable period ending on or prior to
the Closing Date.
(l) Except as set forth in the Disclosure Letter, GNB and its Subsidiaries
have no obligation or liability for the payment of Taxes of any other Person,
including, but not limited to the following, a liability of GNB or its
Subsidiaries for the payment of any Tax arising (A) as a result of being (or
ceasing to be) a member of any Affiliated Group (or being included (or required
to be included) in any Tax Return relating thereto), (B) as a result from any
expressed or implied obligation to indemnify another person, and (C) as a result
from GNB or its Subsidiaries succeeding to the Tax liability of any other person
as a successor, transferee or otherwise.
Section 5.8. Title to Assets.
---------------
GNB is the exclusive and absolute owner of and has good title to, or a
valid leasehold interest to, all of the personal property in the United Kingdom
reflected in the June 30, 1999 Balance Sheet (other than the property in the
United Kingdom disposed of since the date of the June 30, 1999
15
<PAGE>
Balance Sheet in the ordinary course of business for fair value) in the amounts
and categories reflected therein, and all personal property in India acquired
after the date of the June 30, 1999 Balance Sheet, free and clear of all
Encumbrances, except for: (a) Permitted Encumbrances; (b) the lien of current
taxes not yet due and payable and (c) other exceptions disclosed in Schedule
--------
5.8. Except as disclosed in Schedule 5.8, the personal property of GNB that is
--- ------------
utilized in the operation of GNB's business is usable in the ordinary course of
GNB's business and conforms to all applicable statutes, ordinances and
regulations relating to its construction, use and operation, except where such
nonconformity is not likely to have a Material Adverse Effect.
Section 5.9. Real Property.
-------------
(a) the Real Property shown in Schedule 2 comprise all the premises and
land owned, leased, occupied or used by GNB;
(b) Part II of Schedule 2 contains details of the material terms of each
material lease, sublease or similar agreement under which GNB is lessee or
sublessee of, or holds or occupies, the Real Property;
(c) there is no other Person in possession or occupation of the Real
Property without GNB's, or other proper authority;
(d) to the Knowledge of the Seller there is no material subsisting breach
nor any material non-observance on the part of GNB of any covenant, condition or
agreement contained in the lease under which GNB occupies the Real Property and
no landlord has refused to accept rent or made any complaint or objection
concerning the covenants.
Section 5.10. Assets.
------
Schedule 3 contains a list of all machinery, equipment, and vehicles owned
----------
by GNB having an original cost of (pound)67,000 or more (the "Principal
Assets").
Section 5.11. Asset Leases.
------------
The Disclosure Letter contains a brief description of each lease or other
agreement or right, whether written or oral, (including in each case the annual
rental, the expiration date thereof and a brief description of the property
covered) under which GNB is lessee of, or holds or operates, any machinery,
equipment, or vehicle owned by a third party, except those which are terminable
by GNB without cost or penalty on 30 days' or less notice or which provide for
annual rentals of less than (pound)67,000.
Section 5.12. Licences.
--------
All material licences, consents, authorisations, permits, orders, warrants,
confirmations, permissions, certificates, approvals and authorities ("Licences")
necessary for the carrying on of the Business and operations of GNB have been
obtained and are being complied with except to the extent that non-compliance is
not likely to have a Material Adverse Effect. No written notice of the
suspension, cancellation, refusal, modification or revocation of any such
Licence has been received by GNB and, to the Knowledge of Seller, there is no
basis for the issuance of such
16
<PAGE>
notice except as a result of the consummation of the transactions contemplated
hereby or except as is not likely to have a Material Adverse Effect.
Notwithstanding the foregoing, Licenses required under the Environmental Laws
are addressed solely in Section 5.21(b).
---------------
Section 5.13. Intellectual Property.
---------------------
(a) Except as set out in Schedule 4 there are no material patents, patent
applications, trade marks or trade mark registrations, service marks or service
mark registrations, trade names, Internet domain names, corporate names, or any
applications to register any of the foregoing, copyrights, licences to or from
any Person in relation thereto (the "Intellectual Property"), used by GNB or
otherwise relating to the business of GNB as presently carried on;
(b) each item constituting part of the Intellectual Property has been, to
the extent indicated in Schedule 4, duly registered, filed or issued, as the
----------
case may be and such registrations, filings and issuances remain in full force
and effect;
(c) GNB owns and possesses all right, title and interest in and to the
Intellectual Property, and GNB has not received written notice of any claim by
any Person contesting the validity, enforceability, use, or ownership of any
Intellectual Property, patent disclosures or inventions or asserting that GNB is
infringing the intellectual property rights of others. Schedule 4 sets forth all
technology (including Intellectual Property) owned by third parties and used by
GNB. To the Knowledge of the Seller, no Person is infringing the rights of GNB
with respect to any Intellectual Property. GNB uses all reasonable efforts to
protect its trade secrets.
Section 5.14. Employees, etc.
---------------
(a) the Disclosure Letter contains details of:
(i) the aggregate number of employees employed by GNB;
(ii) the name, date of commencement of service, temporary or
permanent status, period of service, location, salary and benefits package,
grade and age of each employee;
(iii) the terms of the contract of employment of each employee earning
more than(pound)25,000 per annum; and
(iv) the forms of all consultancy or similar arrangements involving
payments in excess of(pound)10,000 per annum;
(b) there are no proposals to terminate the employment of any employees of
GNB and there are no arrangements (whether contractual or otherwise) to vary or
amend their terms of employment (whether to their detriment or benefit).
(c) GNB has in relation to each of its employees (and, so far as relevant,
to each of its former employees) complied with:
(i) obligations imposed on it by all statutes regulations and codes
of conduct and practice relevant to the relations between it and its
employees or any trade union or
17
<PAGE>
employee representatives and has maintained current adequate and suitable
records regarding the service and terms and conditions of employment of
each of its employees;
(ii) all collective agreements recognition agreements and customs and
practices for the time being dealing with such relations or the conditions
of service of its employees; and
(iii) all relevant orders and awards made under any relevant statute
regulation or code of conduct and practice affecting the conditions of
service of its employees.
Section 5.15. Trade Disputes.
--------------
No trade union or other body is recognised by GNB for collective bargaining
as representing any of the employees. GNB is not involved in any industrial or
trade dispute or any dispute or negotiation with any trade union or other body
representing any of the employees.
Section 5.16. Payments on Termination.
-----------------------
(a) no liability has been or may be incurred by GNB for breach of any
contract of employment or consultancy with any employee or consultant including,
without limitation, redundancy payments, protective awards, compensation for
wrongful dismissal or unfair dismissal or for failure to comply with any order
for the reinstatement or re-engagement of any employee; and
(b) GNB has not made or agreed to make any payment or provided or agreed
to provide any benefit to any employee or former employee or any dependent of
any such employees or former employee in connection with the proposed
termination or suspension of employment or variation of any contract of
employment of any such employee or former employee.
Section 5.17. Claims.
------
No liability has been or, to the Knowledge of the Seller may be, incurred
by GNB for breach of any contract of employment or consultancy with any employee
or consultant: including without limitation, redundancy payments, protective
awards, compensation for wrongful or unfair dismissal or failure to comply with
any order for reinstatement.
Section 5.18. Pensions.
--------
(a) The Disclosure Letter contains details of all retirement, death,
accident, disability or sickness benefit schemes (the "Schemes") in operation
for the benefit of any of GNB's current or former employees or directors
(together for the purposes of this Section 5.18 referred to as the "Employees")
------------
or for the benefit of the dependants of any such Employees;
(b) Other than the Schemes referred to above, there are not nor have there
ever been any other arrangements, agreements, customs or practices (whether
legally enforceable or not) for providing pensions or other benefits on, or in
anticipation of, the retirement, death, accident,
18
<PAGE>
disability or sickness of the Employees, nor has GNB agreed or announced any
proposal to enter into or establish any such arrangement, agreement, custom or
practice;
(c) To the Knowledge of the Seller, the Schemes have been administered in
accordance with all relevant legislation and with the trusts powers and
provisions of the Schemes; and
(d) In relation to the group personal pension ("GPP"), all contributions
which have been requested have been paid up to date and in relation to the
Schemes other than the GPP, all insurance premiums requested by the relevant
insurance company in order to provide the benefits under such Schemes have been
paid up to date.
Section 5.19. Commercial Contracts.
--------------------
GNB is not a party to or bound by:
(a) any consignment, distributor, dealer, manufacturer's representative,
sales agency, advertising representative or advertising or public relations
contract or agreement which is reasonably anticipated by GNB to involve the
payment of more than (pound)67,000 per year;
(b) any contract, agreement or commitment regarding the sale or other
disposition of products or services by GNB, or for the purchase of raw
materials, products or services by GNB, which is reasonably anticipated by GNB
to involve the receipt or payment of more than (pound)67,000 per year;
(c) any guarantee or indemnification agreement for the benefit of any
Person made or given outside of the ordinary course of business;
(d) any contract, agreement or commitment which provides for the
incurrence by GNB of indebtedness for borrowed money or capitalized lease
obligations;
(e) any partnership, consortium or joint venture agreement or has been a
member of any unincorporated association;
(f) any Tax sharing or Tax allocation agreement;
(g) any agreement, contract or commitment relating to capital expenditures
of an amount or value in excess of(pound)67,000;
(h) any agreement that restricts or purports to restrict the business
activity of GNB or limits GNB's ability to engage in any line of business or
compete with any Person;
(i) any material license of software or other intellectual property; or
(j) any agreement that was not entered into in the ordinary course of
GNB's business consistent with past practice and that involves annual payments
in excess of (pound)67,000.
19
<PAGE>
Section 5.20. Status of Contracts.
-------------------
Each of the leases, contracts and other agreements of GNB disclosed in the
Disclosure Letter (collectively, the "GNB Agreements") constitutes a legal,
valid and binding obligation of GNB (subject to bankruptcy, insolvency,
reorganisation, moratorium and similar laws of general application relating to
or affecting creditors' rights and to general equity principles) and is in full
force and effect and GNB is not, nor to the Knowledge of the Seller, alleged to
be, in material breach of or material default under, any of the GNB Agreements
nor, to the Knowledge of Seller, is any other party thereto in such breach or
default and, to the Knowledge of the Seller, no event has occurred which the
notice or lapse of time would constitute such a breach or default or permit
termination, modification or acceleration of any of the GNB Agreements.
Section 5.21. Environmental Matters.
---------------------
Notwithstanding any other provision of this Agreement, this Section 5.21
------------
contains the only representations or warranties of the Seller with respect to
Environmental Law or Environmental Matters in relation to GNB, and no other
statement in this Agreement, in any of the Seller Ancillary Agreements or in any
other document or information delivered or given to or received by or on behalf
of the Buyer in connection with the transactions contemplated by this Agreement
shall be deemed to be a representation or warranty relating to Environmental Law
or Environmental Matters in relation to GNB:
(a) GNB is in compliance with all applicable Environmental Laws except for
such noncompliance as is not likely to have a Material Adverse Effect.
(b) GNB owns, holds or possesses all material Governmental Permits
required under Environmental Laws necessary for the occupation and use of the
Properties and the operation of its business substantially as currently
conducted. GNB is in compliance, and has for the past three (3) years complied,
with all Governmental Permits except for such noncompliance as is not likely to
have a Material Adverse Effect. The Seller shall make commercially reasonable
efforts to transfer or cause to be transferred to the Buyer all such
Governmental Permits at the Closing, including (i) giving notice to federal,
state or local regulatory agencies with respect to the change in ownership or
control or responsible officials at the Properties, (ii) completing and
submitting notices of termination, and (iii) to the extent not transferred by
the Closing Date, shall cooperate fully with the Buyer in obtaining the transfer
of such Government Permits as promptly thereafter as possible.
(c) GNB is not subject to any pending or, to the Knowledge of the Seller
Regarding Environmental Matters, threatened with investigation by, order from,
claim by, statutory request for information from, or continuing agreement with
any Person respecting: (i) any violation of Environmental Law or Governmental
Permits, (ii) any Remedial Action, or (iii) any claim of Losses and Expenses, in
each case arising from the release of Hazardous Materials or the presence of any
Hazardous Material on, in, at or beneath any of the Real Property or the
migration of any Hazardous Material onto or from the Real Property.
(d) GNB is not subject to any pending or, to the Knowledge of the Seller
Regarding Environmental Matters, threatened judicial or administrative
investigation, proceeding, order,
20
<PAGE>
notice of violation, judgment, decree or settlement with any continuing
obligation alleging or relating to a violation of or liability under any
Environmental Law or Governmental Permit.
(e) GNB has not received any notice under any Environmental Law to the
effect that it is or may be liable to any Person as a result of the generation,
storage, transportation, Release, arrangement for disposal or disposal of any
Hazardous Material on, at, or in any Real Property.
(f) GNB has not reported a Release pursuant to an Environmental Law or
filed a notice with respect to the contamination of land or the generation of
hazardous wastes that is required to be filed pursuant to an Environmental Law,
and, to the Knowledge of the Seller Regarding Environmental Matters, there has
not been any disposal by GNB or Release of any Hazardous Materials on, at, in or
beneath any Leased Real Property.
(g) To the Knowledge of the Seller Regarding Environmental Matters, there
are no underground storage tanks (whether active or abandoned) located at, in or
beneath the Properties.
(h) To the Knowledge of the Seller Regarding Environmental Matters, as of
the Closing Date there is no condition existing on the premises constituting the
Properties that will give rise to any liability of GNB under any Environmental
Law.
(i) Seller has made available to Buyer true and correct copies of all
material environmental audits and consultant's reports relating to the past and
current operations, properties and facilities of GNB or any of their respective
predecessors, which are in its possession or under its reasonable control.
(j) To the Knowledge of the Seller Regarding Environmental Matters, the
sites identified in the Disclosure Letter constitute, and as the Disclosure
Letter is updated by Seller from time to time in its sole discretion prior to
the Closing Date, will constitute all PRP Sites as of the Closing Date.
(k) Notwithstanding any other provision of this Agreement, no
representations and warranties are made or shall be deemed to apply to the PRP
Sites.
Section 5.22. Bank Accounts, Guarantees and Powers.
------------------------------------
The Disclosure Letter lists all accounts, directors' resolutions
authorising borrowing or deposit boxes maintained by GNB at any bank or other
financial institution and the names of the persons authorised to effect
transactions in such accounts and pursuant to such resolutions and with access
to such boxes.
Section 5.23. Accounts and Records.
--------------------
All the accounts, books, ledgers and financial and other material records
of the Business have been maintained accurately and in accordance with
generally accepted accounting practices.
21
<PAGE>
Section 5.24. Insurance.
---------
The Seller has, and at all times has had, valid insurance coverage in
respect of the Business against all risk normally insured against by persons in
the same industry, underwritten by one or more well-established and reputable
insurers or adequately capitalised Affiliates. The Disclosure Letter contains a
list of all insurance policies maintained by or on behalf of GNB on the
Properties, assets, business or personnel specifying:
(i) the insurer;
(ii) the amount of the coverage;
(iii) the type of insurance;
(iv) the policy number; and
(v) any currently pending claims thereunder.
GNB has not failed to give any notice or present any claim under any
insurance policy in due and timely fashion. All premiums due under the policies
listed in the Disclosure Letter have been paid or accrued for on the Financial
Statements and all such policies are in full force and effect and no notice of
disallowance of any claim under any insurance policy, whether or not currently
in effect, has been received by GNB. Other than (i) claims properly made against
GNB in the ordinary course of business pursuant to insurance programs written on
a retrospective rating basis, (ii) claims made as a result of premium audits
relating to expired insurance policies, (iii) deductible claims relating to
losses that are incurred but not reported, or losses that are known but not
finally resolved, GNB has no liability for or exposure to any premium expenses
for expired policies and there are no current claims by GNB under any such
policy as to which coverage has been questioned, denied or disputed by the
underwriters of such policies.
Section 5.25. Product Warranties.
------------------
(a) Details of all of GNB's unexpired, express product warranties with
respect to any product that it manufactures or sells or that it has heretofore
manufactured or sold are set out in the Disclosure Letter. Except as disclosed,
GNB has not received written notice of any claim, and to the Knowledge of the
Seller there are no threatened claims against GNB based on any product warranty
(except claims outstanding as of June 30, 1999, not exceeding the UK equivalent
of US$200,000).
(b) GNB has not received a prohibition notice, a notice to warn, or a
suspension notice under the Consumer Protection Act of 1987 of the United
Kingdom.
Section 5.26. No Misrepresentation.
--------------------
To the Knowledge of the Seller, the representations and warranties of the
Seller contained in this Agreement, the Disclosure Letter and the certificates
and other instruments delivered by
22
<PAGE>
the Seller pursuant hereto, do not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements contained
herein or therein not misleading.
Section 5.27. Sufficiency of Assets. GNB owns or leases or has the right to
---------------------
use all Real Property, buildings, machinery, equipment, intellectual property
and other assets necessary for the conduct of the Business.
Section 5.28. Powers of Attorney. As of Closing, there will not be any
------------------
outstanding powers of attorney executed on behalf of GNB other than with respect
to the filing of taxes, customs and similar matters and intellectual property
registrations.
ARTICLE 6.
REPRESENTATIONS AND WARRANTIES REGARDING THE BUYER
The Buyer represents and warrants to the Seller as follows:
Section 6.1. Organisation.
------------
The Buyer has been duly incorporated and validly exists under the laws of
France.
Section 6.2. Power and Authority.
-------------------
The Buyer has the legal right and full corporate power, authority and
approval to execute and deliver this Agreement and the Buyer Ancillary
Agreements and to perform its obligations hereunder and thereunder and to own
and lease its property and conduct its operations as currently conducted. The
Buyer's execution, delivery and performance of this Agreement has been duly
authorised and approved by all necessary corporate action.
Section 6.3. Agreement Binding.
-----------------
This Agreement and the Ancillary Agreements have been duly executed and
delivered by the Buyer, and assuming due authorisation, execution and delivery
by the Seller, are the legal, valid and binding obligations of the Buyer
enforceable in accordance with their respective terms, subject to the general
principle of equity and except as enforceability may be limited by applicable
bankruptcy, insolvency, fraudulent transfer, reorganisation, moratorium or other
similar laws of general application relating to creditors' rights generally.
Section 6.4. Absence of Conflicts.
--------------------
The execution, delivery and performance of this Agreement and the Buyer
Ancillary Agreements and the performance of the Buyer's obligations hereunder
and thereunder will not:
(a) conflict with, result in a breach of the terms, conditions or
provisions of, or constitute a default, an event of default or an event creating
rights of acceleration, termination or cancellation, or result in termination of
or result in the creation or imposition of any Encumbrance under:
23
<PAGE>
(i) any term or provision of the memorandum or articles of
association of the Buyer (or like constitutional documents);
(ii) any note, instrument, contract, agreement, mortgage, indenture
lease, license, franchise, permit or other commitment to which the Buyer is
a party or by which it or any of its assets are bound;
(iii) any Court Order;
(iv) any Requirements of Law;
except in each case, for any of the foregoing which, individually or in the
aggregate is or are not likely to have a material adverse effect on the Buyer or
its business taken as a whole or hinder or impair the completion of the
transactions contemplated hereby; or
(b) require the approval, consent, authorisation or act of, or the making
by the Buyer of any declaration, notification, filing or registration with, any
Person, except, in each case, for any of the foregoing which, individually or in
the aggregate, if not taken, is or are not likely to have a material adverse
effect on the Buyer or its business taken as a whole or materially hinder or
impair the consummation of the transactions contemplated hereby.
Section 6.5. No Litigation.
-------------
There is no Action pending or, to the knowledge of the Buyer, threatened,
which questions the legality or propriety of the transactions contemplated by
this Agreement the Buyer Ancillary Agreements or which would impair the
contemplation of the transactions contemplated hereby, and there has not been,
to the knowledge of the Buyer, any claim asserted by any Person that could lead
to such an Action.
Section 6.6. Investment Representation.
-------------------------
The Buyer is acquiring the Shares for investment and not with a view to the
distribution thereof or dividing all or any part of its interest therein with
any other person.
Section 6.7. No Advisor.
----------
Neither the Buyer nor any Person acting on its behalf has retained any
advisor, broker, investment banker or financial advisor in connection with this
Agreement or any transaction contemplated hereby for which the Seller may be
liable.
Section 6.8. No Misrepresentation. To the knowledge of Buyer, the
--------------------
representations and warranties of Buyer contained in this Agreement and the
certificates and other instruments delivered by Buyer pursuant hereto do not
include any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements made not misleading.
24
<PAGE>
ARTICLE 7.
ACTION PRIOR TO THE CLOSING DATE
The Buyer and the Seller covenant and agree to take the following actions
between the date hereof and the Closing Date:
Section 7.1. Preserve Accuracy of Representations and Warranties.
---------------------------------------------------
The Buyer and the Seller shall, and the Seller shall procure that GNB
shall, refrain from taking any action that would render any representation or
warranty contained in this Agreement inaccurate as of the Closing Date. The
Buyer and the Seller shall promptly notify the other of any Action,
investigation, or other proceeding, that shall be instituted or threatened
against such party or in the case of Seller, against GNB, to restrain, prohibit
or otherwise challenge the legality of any transaction contemplated by this
Agreement.
Section 7.2. Notification of Changes.
-----------------------
Each of the Seller and the Buyer shall promptly notify the other of any
event that causes any representation or warranty given by such party in Article
4,5, or 6 to become untrue.
Section 7.3. Governmental Approvals.
----------------------
During the period prior to the Closing Date, the Seller and the Buyer
shall, and the Seller shall cause GNB, to act diligently and reasonably, and
shall cooperate with each other, to secure any consents and approvals of any
Governmental Body required to be obtained in order to effect the completion of
the transactions contemplated by this Agreement and preserve for the benefit of
GNB its rights under permits and agreements.
Section 7.4. Operations Prior to the Closing Date.
------------------------------------
(a) During the period prior to the Closing Date, the Seller shall
cause GNB to operate and carry on its operations only in the ordinary
course and substantially as operated prior to the date hereof.
(b) Notwithstanding Section 7.4(a), except as expressly provided for
--------------
in this Agreement, or with the prior written consent of the Buyer, the
Seller shall not during the Period ending on the Closing Date take and
shall not cause GNB to take any of the actions set out in Section 5.6(b);
provided however, notwithstanding anything to the contrary herein, Seller
will not make, and since 9 May 2000 has not made, any capital expenditure
in excess of the local currency equivalent of US$250,000 (other than as
permitted by Section 7.3(b) of the Principal US Agreement) without the
prior written approval of Buyer.
Section 7.5. Intercompany Agreements.
-----------------------
All the Intercompany Agreements and intercompany accounts payable and
receivable, except for those set out in Schedule 5, shall be terminated or
canceled at Closing.
25
<PAGE>
Section 7.6. General. Each of the parties will use its reasonable best
-------
efforts to take all action and to do all things necessary, proper, or advisable
in order to consummate and make effective the transactions contemplated by this
Agreement (including satisfaction, but not waiver, of the closing conditions set
forth below).
Section 7.7. Preservation of Business. Each of the parties shall, and
------------------------
Seller shall cause GNB to, use reasonable best efforts to keep their businesses
and properties substantially intact, including their present operations,
physical facilities, working conditions and relationships with lessors,
licensors, suppliers, customers and employees.
ARTICLE 8.
CONDITIONS TO CLOSING
Section 8.1. Buyer.
-----
The obligations of Buyer under this Agreement shall, at the election of the
Buyer, be subject to the satisfaction, on or prior to the Closing Date, of each
of the following conditions:
(a) No Misrepresentation or Breach of Obligations or Agreements.
-----------------------------------------------------------
Seller shall have complied in all material respects with its covenants and
agreements herein and in the Coordinating Agreement.
(b) No Breach of Representation or Warranty.
---------------------------------------
Each of the representations and warranties of the Seller contained in this
Agreement and each of the Seller Ancillary Agreements shall be true and correct
in all material respects on the Closing Date as though made on the Closing Date
(except with respect to those representations and warranties that speak as to a
particular date or time, which only need to be true and correct as of such date
or time), except for changes therein specifically permitted by this Agreement or
resulting from any transaction expressly consented to in writing by the Buyer;
and there shall have been delivered to the Buyer a closing certificate in a form
reasonably satisfactory to the Buyer to such effect, dated the Closing Date,
signed by the Chairman or Managing Director of the Seller;
(c) Closing Documents.
-----------------
The Buyer shall have received from the Seller the agreements and
closing documents provided for in Section 3.2;
-----------
(d) Necessary Approvals.
-------------------
The Seller and the Buyer shall have received all approvals and actions of
or by all Governmental Bodies and any other Person which are necessary to
complete the transactions
26
<PAGE>
contemplated hereby and by the ROW Agreements and preserve for the benefit of
GNB its rights under the GNB Agreements which are material to the operation of
the Business;
(e) No Suit.
-------
No Action by any Governmental Body shall be pending or threatened
questioning the legality of this Agreement or the consummation of the
transactions contemplated hereby in whole or in part;
27
<PAGE>
(f) Principal US Agreement.
----------------------
The transactions contemplated by the Principal US Agreement shall have been
completed simultaneously with the Closing.
(g) No Material Adverse Change. On the Closing Date, there shall not be a
--------------------------
Material Adverse Effect.
(h) Coordinating Agreement. All conditions to Exide Corporation's
----------------------
obligations set forth in Sections 5.5, 5.6 and 5.7(a) of the Coordinating
Agreement shall have been satisfied.
Notwithstanding the failure of any one or more of the foregoing conditions,
the Buyer may, at its option, proceed with the Closing without satisfaction, in
whole or in part, of any one or more of such conditions and without written
waiver; provided however, that in so proceeding with the Closing, and
notwithstanding any other provision of this Agreement, the Buyer shall be deemed
to have waived any such failure and any rights or remedies it may have against
the Seller by reason of such failure.
Section 8.2. Seller.
------
The obligations of Seller under this Agreement shall, at the option of the
Seller, be subject to the satisfaction, on or prior to the Closing Date, of each
of the following conditions:
(a) No Breach of Covenants and Agreements.
-------------------------------------
Buyer shall have complied in all material respects with its covenants and
agreements herein and in the Coordinating Agreement;
(b) No Breach of Representations and Warranties.
-------------------------------------------
Each of the representations and warranties of the Buyer contained in this
Agreement and the Buyer Ancillary Agreements shall be true and correct in all
material respects on the Closing Date as though made on the Closing Date (except
with respect to those representations and warranties that speak as to a
particular date or time, which only need to be true and correct as of such date
or time), except for changes therein specifically permitted by this Agreement or
resulting from any transaction expressly consented to in writing by the Seller;
and there shall have been delivered to Seller a closing certificate in a form
reasonably satisfactory to Seller to such effect, dated the Closing Date and
signed by the President or a Vice President of the Buyer;
(c) Closing Documents.
-----------------
The Seller shall have received from Buyer the agreements and documents
contemplated by Section 3.4;
-----------
(d) Payment of Closing Date Cash Payment.
------------------------------------
The Buyer shall have tendered payment of the Purchase Price;
28
<PAGE>
(e) Necessary Approvals.
-------------------
Seller and Buyer shall have received all approvals and actions of or by all
Governmental Bodies and any other Person which are necessary to consummate the
transactions contemplated hereby and by the ROW Agreements and preserve for the
benefit of Buyer its rights under agreements which are material to the operation
of its business;
(f) No Suit.
-------
No Action by any Governmental Body shall be pending or threatened
questioning the legality of this Agreement or the consummation of the
transactions contemplated hereby in whole or in part; and
(g) Principal US Agreement.
----------------------
The transactions contemplated by the Principal US Agreement shall have been
completed simultaneously with the Closing.
(h) No Material Adverse Change. On the Closing Date, there shall have been
--------------------------
no event, occurrence or condition (other than as a result of general economic
conditions or events affecting the automotive and industrial battery business as
a whole) which has, or could reasonably be expected to have, a material adverse
effect on the financial condition, assets, results or operations, businesses, or
operations of Buyer taken as a whole.
(i) Coordinating Agreement. All conditions to Pacific Dunlop Holdings
-----------------------
(USA) Inc.'s obligations set forth in Sections 5.5 and 5.7(b) of the
Coordinating Agreement shall have been satisfied.
Notwithstanding the failure of any one or more of the foregoing conditions,
the Seller may, at its option, proceed with the Closing without satisfaction, in
whole or in part, of any one or more of such conditions and without written
waiver; provided however, that in so proceeding with the Closing, and
notwithstanding any other provision of this Agreement, the Seller shall be
deemed to have waived any such failure and any rights or remedies it may have
against the Buyer by reason of such failure.
ARTICLE 9.
TERMINATION
Section 9.1. Termination.
-----------
Notwithstanding anything contained in this Agreement to the contrary, this
Agreement may be terminated at any time prior to the Closing Date:
(a) by the mutual written consent of the Buyer and the Seller;
(b) by the Buyer or the Seller if the Closing shall not have occurred on
or before December 31, 2000 unless: (i) all conditions to Closing have
previously been satisfied or waived,
29
<PAGE>
and (ii) the Closing has not then occurred solely because the date for Closing
specified in Section 3.1 has not yet occurred and unless such failure to close
-----------
is due primarily to the breach by the party seeking termination of its
agreements, representations or warranties contained herein;
(c) by the Buyer in the event of any breaches in any material respect by
the Seller of the Seller's agreements, covenants, representations or warranties
contained herein, and which Seller has failed to remedy or cure within twenty
one (21) days after receipt of notice from the Buyer requesting that such
breaches be remedied or cured;
(d) by the Seller in the event of any breaches in any material respect by
the Buyer of the Buyer's agreements, covenants, representations or warranties
contained herein, which the Buyer has failed to remedy or cure within twenty one
(21) days after receipt of notice from the Seller requesting that such breaches
be remedied or cured; or
(e) by the Buyer or the Seller if a Court Order shall have been made or a
Governmental Body shall have issued a decree or ruling or taken any other action
permanently restraining, enjoining or otherwise prohibiting the completion of
the transactions contemplated hereby.
Section 9.2. Effect of Termination.
---------------------
In the event that this Agreement shall be terminated pursuant to this
Section 9, all further obligations of the parties under this Agreement (other
---------
than Sections 11.2, 11.8 and 11.11) and under the Coordinating Agreement (other
------------- ---- -----
than Sections 5.2, 5.3 and 5.4) shall be terminated without further liability of
------------ --- ---
any party to the other, provided that nothing herein shall relieve either party
from liability for its wilful breach of this Agreement.
Section 9.3. Notice of Termination.
---------------------
Any party desiring to terminate this Agreement pursuant to Section 9.1
-----------
shall give written notice of such termination to the other parties to this
Agreement.
ARTICLE 10.
EXCLUSIVITY OF REMEDY
Section 10.1. Indemnification by the Seller.
-----------------------------
The Seller's sole and exclusive indemnification obligations under this
Agreement are set forth in the Coordinating Agreement.
Section 10.2. Indemnification by the Buyer.
----------------------------
The Buyer's sole and exclusive indemnification obligations under this
Agreement are set forth in the Coordinating Agreement.
30
<PAGE>
Section 10.3. Exclusivity of Remedy.
---------------------
Except as provided in Section 9.2, with respect to any breach by either
-----------
party of its representations, warranties, covenants, or agreements in this
Agreement or the respective Buyer or Seller Ancillary Agreements, or the ROW
Agreements and the transactions contemplated hereby and thereby, the sole and
exclusive remedy of the other party (in contract, tort, for contribution, under
Requirements of Law, or otherwise) shall be the indemnification provided in the
Coordinating Agreement. In view of this exclusivity of remedy provision, the
Buyer and the Seller covenant and agree for themselves and their respective
Affiliates that they will not bring, maintain, join or prosecute any Action or
other proceeding against the other or its Affiliates for breach of this
Agreement or indemnity therefor except as provided in the Coordinating
Agreement.
ARTICLE 11.
GENERAL PROVISIONS
Section 11.1. Notices.
-------
Any notice, request, instruction or other document to be given hereunder
shall be in writing and: (a) delivered personally; (b) sent by reputable
overnight couriers; or (c) sent by facsimile, according to the instructions set
forth below.
Such notices shall be sent to the following addresses and/or facsimile
numbers and shall be deemed given: (x) if delivered personally, at the time
delivered; (y) if sent by reputable overnight courier, at the time sent; or (z)
if transmitted by facsimile, at the time when receipt is confirmed by the
sending facsimile machine.
If to Seller, to:
Pacific Dunlop Holdings (USA) Inc.
6121 Lakeside Drive
Suite 200
Reno, Nevada 89511
U.S.A.
Attention: President
Facsimile: 702-824-4626
31
<PAGE>
with a copy to:
Gardner, Carton & Douglas
321 N. Clark Street
Suite 3400
Chicago Illinois 60610
U.S.A.
Attention: Mr. Robert J. Wilczek
Facsimile: 312-644-3381
If to Buyer, to:
c/o Exide Corporation
2901 Hubbard Road
Ann Arbor, Michigan 48105
U.S.A.
Attention: General Counsel
Facsimile: 734-827-2575
with copies to:
Wragge & Co.
55 Colmore Row
Birmingham
England B3 2AS
England
Attention: Mr. Andrew Mason
Facsimile: 011 44 121 214 1099
and
Kirkland & Ellis
200 East Randolph Drive
Chicago, Illinois 60601
U.S.A.
Attention: Mr. Carter W. Emerson, P.C.
Facsimile: 312-861-2200
or to such other address as such party may indicate by a notice delivered to the
other party in accordance with the provisions of this Section 11.1.
Section 11.2. Confidential Information.
------------------------
(a) Each party agrees that it will treat in confidence all documents,
materials and other information which it shall have obtained regarding any of
the other parties and/or the businesses of the other parties during the course
of the negotiations leading to the completion of the transactions contemplated
hereby (whether obtained before or after the date of this
32
<PAGE>
Agreement), the investigation provided for herein and the preparation of this
Agreement and other related documents ("Confidential Information"), and, in the
event the transactions contemplated hereby shall not be completed, each party
will destroy or return to the relevant party all copies of non-public
Confidential Information which have been furnished in connection therewith, as
the relevant party may specify. Confidential Information shall not be
communicated to any third person (other than the parties' respective counsel,
accountants, financial advisors or environmental consultants). No party shall
use any Confidential Information in any manner whatsoever except solely for the
purpose of evaluating the proposed transaction. Notwithstanding the foregoing,
after the Closing, the Buyer may use or disclose any Confidential Information
relating to GNB. The Seller shall not at any time after the Closing disclose any
Confidential Information relating to GNB.
(b) The obligation of each party to treat Confidential Information in
confidence shall not apply to any Confidential Information which:
(i) is or becomes available to such party from a source other than
such party;
(ii) is or becomes available to the public other than as a result of
disclosure by another party or its agents;
(iii) is required to be disclosed under applicable law or judicial
process, but only to the extent it must be disclosed; or
(iv) as to which such party reasonably deems disclosure necessary to
obtain any of the consents or approvals contemplated hereby.
Section 11.3. No Public Announcement.
----------------------
Neither the Buyer nor the Seller shall, without the approval of the other
party, issue any press release or other public announcement concerning this
Agreement or the transactions contemplated by this Agreement. Notwithstanding
the foregoing, either party may issue a press release or other public
announcement concerning this Agreement or the transactions contemplated by it to
the extent that such party or its Affiliates shall be so obligated by law, or to
comply with accounting or disclosure obligations of the U.S. Securities and
Exchange Commission, New York Stock Exchange or the Australian Stock Exchange
provided that such party shall be obligated to give the other party prior notice
of such press release or other public announcement if prior notice is
commercially feasible.
Section 11.4. Entire Agreement; Amendments.
----------------------------
This Agreement, the Disclosure Letter, the Buyer Ancillary Agreements, the
Seller Ancillary Agreements, the Coordinating Agreement, the Principal US
Agreement, the ROW Agreements and the Exhibits and Schedules referred to herein
and therein contain the entire understanding of the parties hereto with regard
to the subject matter herein or therein and supersede all prior written or oral
agreements, understandings or letters of intent between or among any of the
parties hereto. This Agreement shall not be amended, modified or
33
<PAGE>
supplemented except by a written instrument signed by an authorised
representative of each of the parties hereto.
Section 11.5. Successors and Assigns.
----------------------
(a) The rights of each party under this Agreement and the Coordinating
Agreement shall not be assignable without the written consent of the other
party, provided, however, that no such assignment shall relieve the assigning
party from any of its duties or obligations under this Agreement or the
Coordinating Agreement, and provided further, however, that upon written notice
to Seller, Buyer may assign this Agreement to an Affiliate of Buyer without the
consent of Seller.
(b) This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their successors and permitted assigns. Nothing in this
Agreement, expressed or implied, is intended or shall be construed to confer
upon any Person other than the parties and successors and assigns permitted by
this Section 11.5 any right, remedy, benefit or claim under or by reason of this
------------
Agreement.
Section 11.6. Interpretation.
--------------
(a) Article titles and headings to Sections herein are inserted for
convenience of reference only and are not intended to be part of or to affect
the meaning or interpretation of this Agreement. The Schedules and Exhibits
referred to herein shall be construed with and as an integral part of this
Agreement to the same extent as if they were set forth herein.
(b) This Agreement, the Disclosure Letter and the Schedules and Exhibits
hereto have been mutually prepared, negotiated and drafted by each of the
parties hereto and thereto. The parties agree that the terms of this Agreement
shall be construed and interpreted against each party in the same manner and
that no such provisions shall be construed or interpreted more strictly against
one party on the assumption that an instrument is to be construed more strictly
against the party which drafted the agreement.
(c) All statutes referenced in this Agreement are statutes of the United
Kingdom, unless otherwise indicated.
Section 11.7. Waivers.
-------
Any term or provision of this Agreement may be waived, or the time for its
performance may be extended, by the party or parties entitled to the benefit
thereof. Any such waiver shall be validly and sufficiently authorised for
purposes of this Agreement if, as to any party, it is authorised in writing by
an authorised representative of such party. Subject to Sections 8.1 and 8.2, the
------------ ---
failure of any party hereto to enforce at any time any term or provision of this
Agreement shall not be construed to be a waiver of such term or provision, nor
in any way to affect the validity of this Agreement or any part hereof or the
right of any party thereafter to enforce each and every such term or provision.
No waiver of any breach of this Agreement shall be held to constitute a waiver
of any other or subsequent breach.
34
<PAGE>
Section 11.8. Expenses.
--------
Subject to the provisions of the Coordinating Agreement or any ROW
Agreement, regardless of whether the transactions contemplated in this Agreement
are consummated each party hereto will pay its own costs and expenses incident
to the negotiation, preparation and performance of this Agreement, including the
fees, expenses and disbursements of its counsel, financial advisors and
accountants. GNB has not borne and will not bear any such costs or expenses.
Section 11.9. Partial Invalidity.
------------------
Wherever possible, each term or provision hereof shall be interpreted in
such manner as to be effective and valid under applicable law, but in case any
one or more of the terms or provisions contained herein shall, for any reason,
be held to be invalid, illegal or unenforceable in any respect, such provision
shall be ineffective to the extent, but only to the extent, of such invalidity,
illegality or unenforceability without invalidating the remainder of such term
or provision or terms or provisions or any other terms or provisions hereof,
unless such a construction would be unreasonable.
Section 11.10. Execution in Counterparts.
-------------------------
This Agreement may be executed in one or more counterparts, each of which
shall be considered an original instrument and shall become binding when one or
more counterparts have been signed by each of the parties hereto and delivered
to each of the Seller and the Buyer.
Section 11.11. Governing Law.
-------------
This Agreement shall be governed by and construed in accordance with the
internal laws of the State of Illinois, without giving effect to any choice of
laws provisions which may direct the application of the laws of another
jurisdiction.
Section 11.12. Further Assurances and Cooperation.
----------------------------------
From and after the date of this Agreement, upon the request of either
Seller or Buyer or any of their respective Affiliates, the other party and its
Affiliates shall execute and deliver such instruments, documents or other
writings as may be reasonably necessary or desirable to confirm and carry out
and to effectuate fully the intent and purposes of this Agreement. After the
Closing, on reasonable advance notice, Buyer shall cause GNB to provide Seller,
Seller's Affiliates and any advisor retained by Seller or its affiliates with
reasonable access to the management and properties, and books, records, and
documents (which were in existence on the Closing) of GNB, during normal
business hours and in a manner which does not unreasonably interfere with GNB,
for any reasonable purpose including, but not limited to, the fulfilment of
Seller's responsibilities under Section 4.1(a) of the Coordinating Agreement,
the enforcement of Seller's and its Affiliates' rights under Article 2 of the
Coordinating Agreement and clause (iii) of Section 4.2(a) of the Coordinating
Agreement. As reasonably necessary, Seller, Seller's Affiliates, and any advisor
retained by Seller or its Affiliates shall be entitled to make copies of such
books, records and documents at their expense. If Buyer shall desire at any time
to dispose
35
<PAGE>
of any such books, records or documents, Buyer shall, prior to such disposition,
give Seller a reasonable opportunity to segregate and remove such books, records
and documents as Seller may select. The obligations of Buyer pursuant to this
Section 11.12 shall survive the Closing indefinitely.
-------------
Section 11.13. No Reliance.
-----------
The provisions of this Agreement are intended for the sole benefit of the
parties hereto and shall not inure to the benefit of any other person, other
than successors and permitted assigns of the Buyer and the Seller, whether as
third party or otherwise.
Section 11.14. Insurance Matters.
-----------------
(a) The Seller agrees that with respect to any occurrence-based policies
as to which GNB is name insured or named as additional insured party (the
"Insurance Policies"), it shall fully cooperate with the Buyer (at the Buyer's
expense) in taking all steps necessary to file and process any insurance claims
for any claims made after the Closing Date that relate to any acts, events or
occurrences prior to the Closing Date relating to the Business (the "Insured
Claims") that are insured under such policies. To the extent that any proceeds
relating to the Insured Claims are received by the Seller or any of the Seller's
Affiliates, the Seller agrees to pay over such proceeds promptly to the Buyer.
(b) The Buyer agrees that it shall pay any retrospective premium charge or
liability owed by the Seller under the terms of such Insurance Policies
(including amounts owed under premium audits), subject to the following
conditions:
(i) the Buyer shall only be obligated to pay such proportion of a
retrospective premium charge or liability to the extent it exclusively
relates to the Business.
(ii) the Buyer shall have the right, upon reasonable request made to
Seller, to audit any retrospective premium policies and charges thereunder,
and to object to any proposed charge on the basis of such audit (in which
case any dispute between the Seller and the Buyer (not including any
dispute between the Buyer and any insurer) shall be resolved by binding
arbitration) and
(iii) the Buyer shall not be required to pay any retrospective charge
or liability with respect to any Insurance Policies to the extent the
overall maximum premium owed by all of the insured parties thereon has
previously been paid.
(c) The Buyer acknowledges and agrees that none of the Buyer or GNB will
have, after the Closing Date, any rights under, and will not assert claims
against any insurance policies insuring or naming Pacific Chloride Inc., or any
of its predecessors or successors, as an insured or additional insured, nor will
the Buyer or GNB assert rights to any settlements of claims under such policies.
Section 11.15. Disclosure Letter.
-----------------
The Disclosure Letter is hereby incorporated by reference into and made a
part of this Agreement. The inclusion of any item in the Disclosure Letter is
intended to qualify the
36
<PAGE>
representations and warranties contained in this Agreement, and to set forth
other information required by this Agreement. Disclosure of information in any
paragraph of the Disclosure Letter shall be deemed to be a disclosure with
respect to every Section of this Agreement notwithstanding the presence or
absence of a cross-reference to the Disclosure Letter under other Sections of
this Agreement if the meaning of such disclosure in the context of such other
Section is reasonably ascertainable. Disclosure of information in the Disclosure
Letter shall not be deemed to be an admission by the Seller that such
information is material for the purposes of this Agreement.
37
<PAGE>
IN WITNESS whereof the parties hereto have executed this Agreement the day
and year first above written.
SELLER:
PACIFIC DUNLOP HOLDINGS (EUROPE) LIMITED
by its duly appointed attorney:
________________________________________
Name: Martin M. Hudson
Title: Attorney in Fact
BUYER:
EXIDE HOLDING EUROPE
by its Director duly authorised:
________________________________________
Name: Denis Porges
Title: Chairman
38
<PAGE>
SCHEDULE 1
Particulars of GNB
Country of Incorporation: England and Wales
Date of Incorporation: 27 June 1997
Registered Number: 3396707
Registered Office: 51 Eastcheap, London EC3M1JP
Directors: Rolf Fehndrich
Thomas Minner
Thomas Smith
Secretary: Barbara Ann Hatcher
VAT Number:
Accounting Reference Date: 30 June
Auditors: KPMG, 2 Cornwall Street Birmingham B32DL
Authorised Share Capital: 250,000 ordinary shares of (Pound)1 each
Issued Share Capital: 239,644
Shareholder: Pacific Dunlop Holdings (Europe) Limited
1
<PAGE>
SCHEDULE 2
The Real Property
Part I
Premises at Apex 4/40 Halifax Road Cressex Industrial Estate, High Wycombe
Part II
(1) Date of Lease: 5 May 1999
(2) Parties: Landlord - Skillbond Limited
Tenant - GNB
Sureties - GNB Technologies NV
- GNB Technologies Inc.
(3) Term: 15 years from 24 March 1999
(4) Rent: (Pounds)87,000 per annum
(5) Rent Reviews: As of 24 March in each 2004,
2009 and 2014
2
<PAGE>
SCHEDULE 3
Principal Assets
Nothing to disclose.
3
<PAGE>
SCHEDULE 4
Intellectual Property
GNB sells products manufactured by its U.S. affiliate GNB Industrial
Battery Company. All trademarks, patent rights and other Intellectual Property
necessary for GNB to acquire and sell these products are the subject of an
implied license from GNB Industrial Battery Company, which is responsible for
acquiring and maintaining appropriate registration with respect thereto.
4
<PAGE>
SCHEDULE 5
Surviving Intercompany Agreements
1. Commissionaire Agreement between GNB and GNB Technologies S.A. dated
February 26, 1998.
2. Commissionaire Agreement between GNB and GNB Technologies NV dated February
26, 1998.
5
<PAGE>
STOCK PURCHASE AGREEMENT
WITH RESPECT TO GNB TECHNOLOGIES (CHINA) LIMITED
Dated 28 June 2000
among
Pacific Dunlop Holdings (Hong Kong) Limited, as Seller
and
Exide Holding Asia Pte. Limited, as Buyer.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C>
ARTICLE 1. DEFINITIONS............................................................................ 1
Section 1.1. Definitions....................................................................... 1
ARTICLE 2. PURCHASE AND SALE...................................................................... 6
Section 2.1. Purchase and Sale of Shares....................................................... 6
Section 2.2. Purchase Price.................................................................... 6
ARTICLE 3. CLOSING................................................................................ 6
Section 3.1. Closing........................................................................... 6
Section 3.2. Documents to be Delivered to Buyer................................................ 7
Section 3.3. Documents to be Delivered to Seller............................................... 7
Section 3.4. Form of Documents................................................................. 8
Section 3.5. Post Closing Matters.............................................................. 8
ARTICLE 4. REPRESENTATIONS AND WARRANTIES REGARDING SELLER........................................ 9
Section 4.1. Organization...................................................................... 9
Section 4.2. Power and Authority; Agreement Binding............................................ 9
Section 4.3. Absence of Conflicts.............................................................. 9
Section 4.4. No Litigation..................................................................... 10
Section 4.5. Title to Shares................................................................... 10
Section 4.6. No Advisor........................................................................ 10
ARTICLE 5. REPRESENTATIONS AND WARRANTIES REGARDING GNB........................................... 10
Section 5.1. Organization...................................................................... 10
Section 5.2. Capitalization.................................................................... 10
Section 5.3. Subsidiaries and Investments...................................................... 11
Section 5.4. Absence of Conflicts.............................................................. 11
Section 5.5. No Litigation..................................................................... 11
Section 5.6. No Violation...................................................................... 11
Section 5.7. Operations Since June 30, 1999.................................................... 12
Section 5.8. Taxes............................................................................. 13
Section 5.9. Title to Assets................................................................... 15
Section 5.10. Real Property..................................................................... 15
Section 5.11. Personal Property................................................................. 15
Section 5.12. Personal Property Leases.......................................................... 15
Section 5.13. Governmental Permits.............................................................. 15
Section 5.14. Intellectual Property............................................................. 16
Section 5.15. Employee Agreements and Plans..................................................... 16
Section 5.16. Superannuation.................................................................... 17
Section 5.17. Contracts......................................................................... 17
Section 5.18. Status of Contracts............................................................... 18
Section 5.19. Environmental Matters............................................................. 18
Section 5.20. Insurance......................................................................... 20
Section 5.21. Product Warranties................................................................ 20
Section 5.22. Bank Accounts, Guarantees and Powers.............................................. 20
Section 5.23. Accounts and Records.............................................................. 20
Section 5.24. No Misrepresentation.............................................................. 20
Section 5.25. Sufficiency of Assets............................................................. 21
</TABLE>
-i-
<PAGE>
<TABLE>
<S> <C>
Section 5.26. Powers of Attorney................................................................ 21
Section 5.27. Acquisition Contracts............................................................. 21
ARTICLE 6. REPRESENTATIONS AND WARRANTIES OF BUYER................................................ 21
Section 6.1. Organization...................................................................... 21
Section 6.2. Power and Authority............................................................... 21
Section 6.3. Agreement Binding................................................................. 21
Section 6.4. Absence of Conflicts.............................................................. 22
Section 6.5. No Litigation..................................................................... 22
Section 6.6. Investment Representation......................................................... 22
Section 6.7. No Advisor........................................................................ 22
Section 6.8. No Misrepresentation.............................................................. 22
ARTICLE 7. ACTION PRIOR TO THE CLOSING DATE....................................................... 22
Section 7.1. Preserve Accuracy of Representations and Warranties............................... 23
Section 7.2. Consents and Approvals............................................................ 23
Section 7.3. Operations Prior to the Closing Date.............................................. 23
Section 7.4. Changes to Employment Conditions.................................................. 23
Section 7.5. Notification of Changes........................................................... 24
Section 7.6. Superannuation.................................................................... 24
Section 7.7. General........................................................................... 26
Section 7.8. Preservation of Business.......................................................... 26
ARTICLE 8. CONDITIONS TO CLOSING.................................................................. 26
Section 8.1. Conditions to the Obligations of the Buyer........................................ 26
Section 8.2. Conditions to the Obligations of Seller........................................... 27
ARTICLE 9. TERMINATION............................................................................ 28
Section 9.1. Termination....................................................................... 28
Section 9.2. Notice of Termination............................................................. 29
Section 9.3. Effect of Termination............................................................. 29
ARTICLE 10. EXCLUSIVITY OF REMEDY.................................................................. 29
Section 10.1. Indemnification by Seller......................................................... 29
Section 10.2. Indemnification by Buyer.......................................................... 29
Section 10.3. Exclusivity of Remedy............................................................. 29
ARTICLE 11. GENERAL PROVISIONS..................................................................... 30
Section 11.1. Notices........................................................................... 30
Section 11.2. Confidential Information.......................................................... 31
Section 11.3. No Public Announcement............................................................ 31
Section 11.4. Entire Agreement; Amendments...................................................... 32
Section 11.5. Successors and Assigns............................................................ 32
Section 11.6. Interpretation.................................................................... 32
Section 11.7. Waivers........................................................................... 32
Section 11.8. Expenses.......................................................................... 33
Section 11.9. Partial Invalidity................................................................ 33
Section 11.10. Execution in Counterparts......................................................... 33
Section 11.11. Governing Law..................................................................... 33
Section 11.12. Further Assurances and Cooperation................................................ 33
Section 11.13. No Reliance....................................................................... 34
Section 11.14. Disclosure Schedules.............................................................. 34
</TABLE>
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<PAGE>
SCHEDULES
1.1 Permitted Encumbrances
5.1 Organization
5.4 Absence of Conflicts
5.5 No Litigation
5.6 No Violation
5.7(A) Operations Since June 30, 1999
5.7(B) Operations Since June 30, 1999
5.8 Taxes
5.9 Title to Assets
5.10(A) Leased Real Property
5.11 Personal Property
5.12 Personal Property Leases
5.13(A) Governmental Permits
5.13(B) Governmental Permits
5.14(A) Intellectual Property
5.14(B) Intellectual Property
5.14(C) Intellectual Property
5.15(A) Employee Agreements and Plans
5.15(B) Employee Agreements and Plans
5.17 Contracts
5.18 Status of Contracts
5.19(A) Environmental Matters
5.19(B) Environmental Matters
5.19(C) Environmental Matters
5.19(D) Environmental Matters
5.19(E) Environmental Matters
5.19(F) Environmental Matters
5.20 Insurance
5.21 Product Warranties
5.22 Bank Accounts
7.3(B) Operations Prior to Closing Date
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<PAGE>
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT, dated 28 June 2000 (the "Agreement") is
executed by and among PACIFIC DUNLOP HOLDINGS (HONG KONG) LIMITED, a corporation
incorporated under the laws of Hong Kong ("Seller"); and EXIDE HOLDING ASIA PTE.
LIMITED, a corporation incorporated under the laws of Singapore and whose
registered number is 200005013E ("Buyer").
WHEREAS, Seller beneficially owns all of the outstanding shares of capital
stock of GNB Technologies (China) Ltd., a company incorporated under the laws of
Hong Kong ("GNB");
WHEREAS, Buyer desires to purchase from Seller, and Seller desires to sell
to Buyer, all of the outstanding shares of GNB all on the terms and subject to
the conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth Seller and Buyer agree as follows:
ARTICLE 1.
DEFINITIONS
Section 1.1. Definitions. In this Agreement, the following terms have the
-----------
meanings specified or referred to in this Section 1.1 and shall be equally
-----------
applicable to both the singular and plural forms. Any agreement referred to
below shall mean such agreement as amended, supplemented and modified from time
to time to the extent permitted by the applicable provisions thereof and by this
Agreement.
"Acquisition Contracts" means the Business Sale Agreement effective
May 1, 2000 between Pacific Dunlop (Asia) Ltd. as seller and GNB as buyer,
pursuant to which GNB acquired the Business and the Assignment Agreement dated
June 13, 2000 between Pacific Dunlop Holdings (China) Co. Ltd. as assignor and
GNB as assignee, pursuant to which GNB or the Subsidiary became entitled to
certain leases and employment contracts relative to the conduct of the Business
in the PRC.
"Action" means any lawsuit, arbitration, or regulatory governmental or
other proceeding or investigation whether at law or in equity.
"Adjoining Properties" shall mean all sites or locations other than
the Leased Real Property or the PRP Sites to which Contaminants have migrated
from the Leased Real Property through air, soil, surface water or groundwater.
"Affiliate" means, with respect to any Person, any other Person which
directly or indirectly controls, is controlled by or is under common control
with such Person.
-1-
<PAGE>
"Agreement" has the meaning specified in the first paragraph of this
Agreement.
"Benefit Entitlement" means the value of an Existing Member's
entitlement to benefits under the Provident Fund determined in accordance with
its Governing Rules.
"Business" means the distribution and sale of automotive and
industrial batteries and related activities in Hong Kong and the PRC as
conducted by the sellers and/or the assignor named in each of the Acquisition
Contracts, GNB and/or the Subsidiary or any of these immediately prior to the
Closing Date.
"Business Day" means a day other than Saturday, Sunday or a day on
which United States national banks are closed.
"Buyer" has the meaning specified in the first paragraph of this
Agreement.
"Buyer Ancillary Agreements" means all agreements, instruments and
documents being or required to be executed and delivered by Buyer under this
Agreement.
"Closing" has the meaning specified in Section 3.1.
-----------
"Closing Date" has the meaning specified in Section 3.1.
-----------
"Confidential Information" has the meaning specified in Section 11.2.
------------
"Contaminant" means a solid, liquid, gas, odour, heat, sound,
vibration, radiation or substance which makes or may make the Leased Real
Property or the surrounding Environment:
(a) unsafe or unfit for habitation or occupation by persons or
animals;
(b) degraded in its capacity to support plant life;
(c) otherwise Environmentally degraded; or
(d) not comply with any Environmental Law.
"Coordinating Agreement" means that certain Coordinating Agreement
dated May 9, 2000 between Pacific Dunlop Holdings (USA) Inc. and Exide
Corporation, as amended and supplemented from time to time.
"Court Order" means any judgment, order, award or decree of any
foreign, federal, state, or local court, tribunal or governmental agency and any
award in any arbitration proceeding.
"Disclosure Schedules" means the Disclosure Schedules dated 13 June
2000, as modified pursuant to Section 5.7 of the Coordinating Agreement.
-----------
"Employment Benefit" means all wages, salary, remuneration,
compensation and benefits payable by Seller to, or on behalf of or in respect
of, the employees of Seller.
-2-
<PAGE>
"Employee Leave Benefit" means annual leave and sick leave.
"Encumbrance" means any lien, charge, security interest, mortgage,
pledge, power of sale, easement, encroachment, covenant, restriction on transfer
or other restriction on or defect in title or other encumbrances.
"Environment" means the physical factors of the surroundings of human
beings including, without limitation, the land, air, waters, atmosphere,
climate, sound, odours, taste and the biological factors of those surroundings
such as plants, animals and other forms of life.
"Environmental Law" means all Requirements of Law relating to
pollution or the regulation and protection of human health or the environment,
including, without limitation, those regarding or relating to emissions,
discharges, Releases or threatened Releases of Contaminants or otherwise
relating to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport, or handling of Contaminants.
"Existing Member" means an employee of GNB who is a member of the
Provident Fund on the Closing Date.
"Expenses" means any and all reasonable expenses incurred in
connection with investigating, defending or asserting any Action or overtly
threatened Action (including court filing fees, court costs, arbitration fees or
costs, witness fees, and reasonable fees and disbursements of legal counsel,
investigators, expert witnesses, accountants and other professionals).
"Final Closing Date Balance Sheet" has the meaning specified in the
Coordinating Agreement.
"Financial Statements" has the meaning specified in the Coordinating
Agreement.
"GNB" has the meaning specified in the first page of this Agreement.
"GNB Agreements" has the meaning specified in Section 5.18.
------------
"Governing Rules" means, in relation to a superannuation fund, the
trust deed, rules or other document governing that fund.
"Governmental Body" means any foreign, federal, state, or local
governmental authority, agency, or regulatory body including any such authority,
agency, or body in Hong Kong.
"Governmental Permits" has the meaning specified in Section 5.13(a).
---------------
"Hong Kong" means the Hong Kong Special Administrative Region of the
PRC.
"Intellectual Property" has the meaning specified in Section 5.14(a).
---------------
-3-
<PAGE>
"June 30, 1999 Balance Sheet" has the meaning specified in the
Coordinating Agreement, including the notes to such balance sheet.
"Knowledge of the Seller" or similar phrases means matters actually
known to Thomas Minner, Thomas Smith, Thomas O'Hare, Mitchell Bregman, Barbara
Hatcher, Ivan Peng or SC Chan.
"Knowledge of the Seller Regarding Environmental Matters" or similar
phrases means matters actually known to Barbara Hatcher, Ivan Peng or SC Chan.
"Leased Real Property" has the meaning specified in Section 5.10(b).
---------------
"Losses" means losses, obligations, liabilities, settlement payments,
awards, judgments, fines, assessments, penalties, and damages.
"March 31, 2000 Balance Sheet" has the meaning specified in the
Coordinating Agreement, including the notes to such balance sheet.
"Material Adverse Effect" means any event, occurrence or condition
(other than as a result of general economic conditions or events or conditions
affecting the automotive and industrial battery industry as a whole) which has,
or could reasonably be expected to have, a material adverse effect on the
financial condition, assets, results of operations, Business, or operations of
the Subsidiary, taken as a whole.
"New Provident Fund" means the new provident fund to be offered to
Existing Members on substantially the same terms as the Provident Fund.
"Permitted Encumbrances" means the Encumbrances specifically set forth
on Schedule 1.1 hereto.
------------
"Person" means any individual, corporation, partnership, limited
liability company or corporation, joint venture, association, joint-stock
company, trust, unincorporated organization or Governmental Body.
"PRC" means the People's Republic of China but excluding for the
purpose of this Agreement Hong Kong.
"PRP Sites" shall mean all sites (other than the Real Property and the
Adjoining Properties) with respect to which GNB, the Subsidiary, or any of their
successors or assignees have or may have liability under any Environmental Law.
"Provident Fund" means the Pacific Dunlop (Asia) Ltd. National Mutual
Provident Fund.
"Purchase Price" has the meaning specified in Section 2.2.
-----------
-4-
<PAGE>
"Release" includes any and all spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, dumping,
disposing, and any other means by which a substance may be introduced into or
travel through the Environment.
"Remedial Action" shall include all actions required by a Court Order
or otherwise by a Governmental Body to (i) clean up, remove, remediate, contain,
treat, monitor, assess, evaluate, or in any other way address Contaminants, (ii)
prevent or minimize a Release or threatened Release of Contaminants, or (iii)
investigate and determine if a remedial response is needed and to design such a
response and undertake post-remedial investigation, monitoring, operation and
maintenance.
"Requirements of Law" means any foreign, federal, state or local law,
statute, regulation, code or ordinance of any Governmental Body currently in
effect.
"ROW Agreements" has the meaning specified in the Coordinating
Agreement.
"Seller" has the meaning specified in the first paragraph of this
Agreement.
"Seller Ancillary Agreements" means all agreements, instruments and
documents being or required to be executed and delivered by the Seller under
this Agreement.
"Shares" has the meaning specified in Section 2.1.
-----------
"Subsidiary" means the wholly-owned subsidiary of GNB to be
established under the laws of the PRC and to be known as, GNB Technologies
(Shenzen) Limited.
"Tax" (and, with correlative meaning, "Taxes" and "Taxable") means any
federal, state, county, local or foreign income, alternative or add-on minimum,
gross income, gross receipts, capital gains, capital, property, sales, use,
transfer, license, excise, premium, lease, estimated, environmental,
registration, value added, stamp, real property, franchise, employment, payroll,
wage, withholding or minimum tax, ad valorem, or customs duty and any other
similar taxes or governmental charges, fees, levies, assessments or liabilities
of any kind whatsoever, whether computed on a separate or consolidated, unitary
or combined basis or in any other manner, and includes any interest, penalty or
fine, or addition to tax imposed by any Governmental Body.
"Tax Return" means any return, report or similar statement required to
be filed with respect to any Taxes (including any attached schedules),
including, without limitation, any information return, claim for refund, amended
return and declaration of estimated Tax.
"Transfer Date" means:
a. the date agreed by Seller and Buyer for this purpose, not
being earlier than the Closing Date; or
-5-
<PAGE>
b. if Buyer and Seller do not agree upon a date for the
purposes of paragraph (a) of this definition within one
month after the Closing Date, the date which is two months
after the Closing Date.
"US Agreement" means the Stock Purchase Agreement dated as of May 9,
2000 by and between Pacific Dunlop Holdings (USA) Inc. as Seller and Exide
Corporation as Buyer with respect to the sale by Seller to Buyer of all the
outstanding shares of capital stock owned by Seller in Pacific Dunlop GNB
Corporation, as amended and supplemented from time to time.
ARTICLE 2.
PURCHASE AND SALE
Section 2.1. Purchase and Sale of Shares. On the terms and subject to the
---------------------------
conditions of this Agreement, on the Closing Date, Seller shall sell, transfer,
assign, convey and deliver to Buyer, and Buyer shall purchase from Seller, the
full beneficial ownership in two (2) ordinary shares in the share capital of
GNB, constituting all of the issued and outstanding shares in the capital of GNB
(the "Shares").
Section 2.2. Purchase Price. The purchase price (the "Purchase Price")
--------------
shall be equal to One Million Six Hundred Twenty Nine Thousand United States
Dollars (US$1,629,000). At the Closing, Buyer shall pay the Purchase Price to
Seller by wire transfer of immediately available funds to such bank account as
Seller shall direct in writing. After Closing, the Purchase Price shall be
adjusted pursuant to the Coordinating Agreement.
ARTICLE 3.
CLOSING
Section 3.1. Closing. The closing of the purchase and sale of the Shares
-------
(the "Closing") shall be consummated at 10:00 a.m. Chicago time on the last
business day of the month in which the last of the conditions specified in
Article 8 is satisfied or waived, at the offices of Gardner, Carton & Douglas at
---------
321 North Clark Street, in Chicago, Illinois, or at such other time or place as
shall be agreed upon by Seller and Buyer. Notwithstanding the foregoing, if the
date upon which the last of the conditions specified in Article 8 is satisfied
---------
or waived is five (5) or fewer Business Days before the last day of the month,
then the Closing shall be consummated on the fifth (5th) Business Day following
the date upon which the last of such conditions was satisfied or waived, or such
other date as may be agreed upon by Buyer and Seller. The time and date on which
the Closing is actually held is referred to herein as the "Closing Date." The
Closing shall be effective as of the close of business on the Closing Date.
Section 3.2. Documents to be Delivered to Buyer. At the Closing, Seller
----------------------------------
shall deliver to Buyer:
(a) certificates representing the Shares, free and clear of all
Encumbrances together with duly executed instruments of transfer, bought and
sold notes and any other relevant documents in favor of Buyer (or such other
Person as Buyer may direct) in form satisfactory to Buyer;
-6-
<PAGE>
(b) a certificate of Seller in a form reasonably satisfactory to Buyer
certifying as to the accuracy of the Seller's representations and warranties at
and as of the Closing and that Seller has performed and complied with all of the
terms, provisions and conditions to be performed and complied with by Seller at
or before the Closing;
(c) a certificate of the company secretary or an assistant secretary of
Seller in a form reasonably satisfactory to Buyer, dated the Closing Date,
certifying as to: (i) Seller's Memorandum and Articles of Association; (ii) the
resolutions of Seller's board of directors, authorizing the execution and
performance of this Agreement, the Seller Ancillary Agreements, and the
transactions contemplated hereby; (iii) incumbency and signatures of its
officers executing this Agreement and any Seller Ancillary Agreement and (iv)
the appointment of Buyer's nominees to the board of directors of GNB;
(d) resignations of each of the directors and officers of GNB effective as
of the Closing Date; and
(e) such other certificates and documents as Buyer or its counsel may
reasonably request.
Section 3.3. Documents to be Delivered to Seller. At the Closing, Buyer
----------------------------------
shall, in addition to the payment under Section 2.2, deliver to Seller:
-----------
(a) a certificate of Buyer in a form reasonably satisfactory to Seller
certifying as to the accuracy of the Buyer's representations and warranties at
and as of the Closing and that Buyer has performed and complied with all of the
terms, provisions and conditions to be performed and complied with by Buyer at
or before the Closing;
(b) a certificate of the secretary or an assistant secretary of Buyer in a
form reasonably satisfactory to Seller, dated the Closing Date, certifying as
to: (i) Buyer's Memorandum and Articles of Association, (ii) the resolutions of
Buyer's board of directors, authorizing the execution and performance of this
Agreement, the Buyer Ancillary Agreements, and the transactions contemplated
hereby; and (iii) incumbency and signatures of its officers executing this
Agreement and any Buyer Ancillary Agreement; and
(c) duly executed consents to act as a director of GNB by those persons
the Buyer desires to be appointed to the Board of GNB.
(d) such other certificates and documents as Seller or its counsel may
reasonably request to effect the Closing.
Section 3.4. Form of Documents. The documents and instruments referred to
-----------------
in Sections 3.2 and 3.3 shall be satisfactory as to form to counsel for the
------------ ---
party to whom they are delivered.
Section 3.5. Post Closing Matters.
--------------------
(a) The Seller hereby declares that for so long as it remains the
registered holder of any of the Shares after Closing it will:
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<PAGE>
(i) hold the Shares and the dividends and other distributions of
profits or surplus or other assets declared, paid or made in
respect of them after Closing and all rights arising out of or in
connection with them in trust for the Buyer and its successors in
title; and
(ii) deal with and dispose of the Shares and all such dividends,
distributions and rights as are described in Section 3.5(a)(i) as
the Buyer or any such successor may direct.
(b)
(i) The Seller hereby appoints the Buyer as its lawful attorney for
the purpose of receiving notices of an attending and voting all
meetings of the members of GNB from Closing to the date on which
the Buyer or its nominee is entered in the register of members of
GNB as the holder of the Shares.
(ii) For such purpose the Seller hereby authorises:
(A) GNB to send any notices in respect of its holding of Shares
to the Buyer; and
(B) the Buyer to complete in such manner as it thinks fit and to
return proxy cards, consents to short notice and any other
document required to be signed by it in its capacity as a
member.
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES REGARDING SELLER
Seller represents and warrants to Buyer as follows:
Section 4.1. Organization. Seller is a company incorporated and validly
------------
existing under the laws of Hong Kong. Seller is not in violation of any
provision of its Memorandum and Articles of Association. Seller is duly
qualified or licensed to do business and is in good standing as a foreign
corporation in each of the jurisdictions specified in Schedule 4.1. Seller is
------------
not required in relation to the Business to be qualified or licensed to do
business as a foreign corporation in any jurisdiction other than those specified
in Schedule 4.1, except for those jurisdictions where the failure to so qualify
------------
is not likely to have a Material Adverse Effect.
Section 4.2. Power and Authority; Agreement Binding. Seller has all
--------------------------------------
requisite corporate power and authority to execute and deliver this Agreement
and the Seller Ancillary Agreements and to perform its obligations hereunder and
thereunder. Seller's execution, delivery and performance of this Agreement and
the Seller Ancillary Agreements has been duly authorized and approved by all
necessary corporate action. This Agreement has been, and the Seller Ancillary
Agreements will be, duly executed and delivered by Seller and, assuming due
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<PAGE>
authorization, execution, and delivery by Buyer, is and will be the legal, valid
and binding obligations of Seller enforceable against Seller in accordance with
their respective terms, subject to general principles of equity and except as
enforceability may be limited by applicable bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium or other similar laws of general
application relating to creditors' rights generally.
Section 4.3. Absence of Conflicts. The execution, delivery and performance
--------------------
of this Agreement and the Seller Ancillary Agreements and the consummation of
the transactions contemplated hereby and thereby, will not:
(a) conflict with, result in a breach of the terms, conditions or
provisions of, or constitute a default, an event of default or an event creating
rights of acceleration, termination or cancellation, or result in the
termination of or result in the creation or imposition or crystallisation of any
Encumbrance upon the Shares or any assets of GNB under, (i) any note,
instrument, contract, agreement, mortgage, indenture, lease, license, or
franchise to which Seller or any Affiliate of Seller is a party or by which it
or any of its assets is bound; (ii) any Court Order; or (iii) any Requirements
of Law; except for any of the foregoing which, individually or in the aggregate
is or are not likely to have a Material Adverse Effect or hinder or impair the
consummation of the transactions contemplated hereby; or
(b) require the approval, consent, authorization or act of, or the making
by Seller or any Affiliate of Seller of any declaration, notification, filing or
registration with any Person, except for any of the foregoing which,
individually or in the aggregate, if not taken, is or are not likely to have a
Material Adverse Effect.
Section 4.4. No Litigation. There is no Action pending or, to the
-------------
Knowledge of the Seller, threatened which questions the legality or propriety of
the transactions contemplated by this Agreement or the Seller Ancillary
Agreements or which would impair the consummation of the transactions
contemplated hereby or thereby.
Section 4.5. Title to Shares. Except as set forth in Schedule 4.5, Seller
--------------- ------------
has good, valid and marketable title to and beneficial ownership of the Shares,
free and clear of all Encumbrances, and has full right and power to vote and
dispose of such Shares as contemplated herein. The Seller is not a party to any
option, warrant, purchase right, or other contract or commitment that could
require the Seller to sell, transfer, or otherwise dispose of any of the Shares
(other than this Agreement). The Seller is not a party to any voting trust,
proxy, or other agreement or understanding with respect to the voting of any of
the Shares.
Section 4.6. No Advisor. Neither Seller nor any of its Affiliates nor any
----------
Person acting on its or their behalf, has retained any advisor, broker,
investment banker or financial advisor in connection with this Agreement or any
transaction contemplated hereby for which the Buyer or GNB may be liable.
ARTICLE 5.
REPRESENTATIONS AND WARRANTIES REGARDING GNB
Seller represents and warrants to Buyer as follows:
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<PAGE>
Section 5.1. Organization. GNB is a company duly incorporated, validly
------------
existing and is duly authorised under the laws of Hong Kong. Seller has
delivered to Buyer complete and correct copies of GNB's Memorandum and Articles
of Association as in effect on the date hereof, and has furnished or made
available copies of the minute books of GNB. Such Memorandum and Articles of
Association are in full force and effect. GNB is not in violation of any
provision of its Memorandum and Articles of Association. GNB is duly qualified
or licensed to do business and is in good standing as a foreign corporation in
each of the jurisdictions specified in Schedule 5.1. GNB is not required to be
------------
qualified or licensed to do business as a foreign corporation in any
jurisdiction other than those specified in Schedule 5.1, except for those
------------
jurisdictions where the failure to so qualify is not likely to have a Material
Adverse Effect or hinder or impair the ability of Seller to consummate the
transactions contemplated by this Agreement or the Seller Ancillary Agreements.
Section 5.2. Capitalization. The authorized capital of GNB consists of One
--------------
Hundred Million (100,000,000) ordinary shares of par value HK $10 each. There
are two ordinary (2) shares in the capital of GNB issued and outstanding, all of
which constitute the Shares. All of the Shares are beneficially owned by Seller.
The Shares have been duly authorized and validly issued, are fully paid and non-
assessable, and have not been issued in violation of any preemptive or other
rights under applicable law, GNB's Memorandum and Articles of Association, or
the terms of any subscription, option, warrant, right, agreement, commitment or
Court Order to which GNB is a party, or by which it is bound. GNB does not have
any outstanding subscriptions, options, warrants, rights, agreements or other
commitments granting to any Person any interest in or right to acquire any of
their securities, including, without limitation, the Shares, or any interest
therein. GNB has not issued any security convertible into, or exchangeable for,
the Shares or other capital shares, and there is no voting trust or other
agreement or understanding to which GNB or Seller is a party or by which either
of them is bound with respect to the voting of the Shares. GNB is not under any
obligation, whether contingent or otherwise, to issue or repurchase any of its
capital shares or to share or make any dividend or distribution payments based
on its revenues, profits or net income.
Section 5.3. Subsidiaries and Investments. Save that, if formed by
----------------------------
Closing, at Closing GNB will own all of the registered capital of the
Subsidiary, GNB does not own, directly or indirectly, any stocks, bonds or
securities or any equity or other proprietary interest in any Person.
Section 5.4. Absence of Conflicts. Except as set forth in Schedule 5.4, the
-------------------- ------------
execution, delivery, and performance of this Agreement and the Seller Ancillary
Agreements, and the consummation of the transactions contemplated hereby and
thereby, will not:
(a) conflict with, result in a breach of the terms, conditions or
provisions of, or constitute a default, an event of default or an event creating
rights of acceleration, termination or cancellation, or result in the
termination of, or result in the creation or imposition or crystallisation of
any Encumbrance upon the Shares or any assets of GNB under: (i) any note,
instrument, contract, agreement, mortgage, indenture, lease, license, or
franchise to which GNB is a party or by which it or its assets, are bound; (ii)
any Court Order; or (iii) any Requirements of Law; except for any of the
foregoing which, individually or in the aggregate, is or are not
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<PAGE>
likely to have a Material Adverse Effect or hinder or impair the consummation of
the transactions contemplated hereby or thereby; or
(b) require the approval, consent, authorization or act of, or the making
by GNB of any declaration, notification, filing or registration with any Person,
except for any of the foregoing which, individually or in the aggregate, is not
likely to have a Material Adverse Effect or materially hinder or impair the
consummation of the transactions contemplated hereby and thereby.
Section 5.5. No Litigation. Except as set forth in Schedule 5.5: (a) there
------------- ------------
is no Action pending or, to the Knowledge of the Seller, threatened against GNB
or any of its assets and there has not been, to the Knowledge of the Seller, any
claim asserted by any Person that could lead to an Action; and (b) neither GNB
nor any of its assets is subject to any currently pending Court Order. Except as
set forth in Schedule 5.5, to the Knowledge of the Seller, there is no Action
------------
pending or threatened against any officer or director of GNB arising out of his
or her service as an officer or director of GNB.
Section 5.6. No Violation. Except as set forth in Schedule 5.6, GNB has
------------ ------------
complied and is in compliance with all Court Orders and Requirements of Law
which are applicable to GNB or the Business, except for such Requirements of Law
as to which noncompliance is not likely to have a Material Adverse Effect.
Section 5.7. Operations Since June 30, 1999.
------------------------------
(a) Except as set forth in Schedule 5.7(A), or except as reflected in the
---------------
March 31, 2000 Balance Sheet, since June 30, 1999, there has been no material
adverse change in the business, operations, assets, or financial condition of
the Business, GNB or the Subsidiary in each case taken as a whole. The
termination of any Intercompany Agreement not listed on Schedule 7.4 will not
------------
have a Material Adverse Effect.
(b) Except as set forth in Schedule 5.7(B), or except as reflected in the
---------------
March 31, 2000 Balance Sheet, since June 30, 1999, the Business has been
conducted only in the ordinary course. Specifically, since June 30, 1999, except
as set forth in Schedule 5.7(B), none of the seller or assignor under the
----------------
Acquisition Contracts, GNB or the Subsidiary have:
(i) made any material change in operations;
(ii) made any capital expenditure or entered into any contract or
commitment therefor in excess of the capital expenditures
disclosed in the "Fiscal Year 2000 Open Sanction Summary"
attached to Schedule 5.7(B) to the US Agreement;
---------------
(iii) sold, leased (as lessor), assigned, transferred or otherwise
disposed of, or imposed or suffered to be imposed any
Encumbrance on, any of the assets, except for inventory and
other personal or real property sold, leased or otherwise
disposed of for fair value in the ordinary course of business
consistent with past practice and except for Permitted
Encumbrances;
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<PAGE>
(iv) canceled any debts owed to or claims held by it (including the
settlement of any Action) other than in the ordinary course of
business consistent with past practice;
(v) created, incurred or assumed, or agreed to create, incur or
assume, any indebtedness for borrowed money or entered into, as
lessee, any finance lease obligations as defined in AASB 1008
or guaranteed any such indebtedness or leases of others or made
any loans other than in the ordinary course of business
consistent with past practice;
(vi) written off as uncollectible or accelerated or delayed
collection of notes or accounts receivable generated by GNB in
advance of or beyond their regular due dates or the dates when
the same would have been collected other than in the ordinary
course of business consistent with past practice;
(vii) delayed or accelerated payment of any accounts payable or other
liabilities of GNB beyond or in advance of their due date or
the date when such liabilities would have been paid other than
in the ordinary course of business consistent with past
practice;
(viii) made any distribution of assets (including payments of cash) to
any of its Affiliates other than pursuant to agreements entered
into in the ordinary course of business consistent with past
practice or declared or paid any dividends (provided that
Seller shall have the right to remove and retain all cash held
by GNB or its Subsidiary), or redeemed, reclassified or
purchased or otherwise acquired any shares of its capital stock
or authorized or issued any shares of its capital stock or any
option, warrant or other right to purchase or acquire any such
shares;
(ix) entered into or, except as set forth in Schedule 5.15(A),
----------------
amended any employment, severance or similar agreement or
arrangement or made any increases in the wages, bonuses, and
benefits of its employees (other than any increases made in the
ordinary course of business consistent with past practice);
(x) waived any rights or settled any claims, except for such
waivers or settlements granted or entered into in the ordinary
course of business;
(xi) made any change in any method of accounting;
(xii) suffered or incurred any damage, destruction, fire, explosion,
accident, flood or other casualty loss or act of God (whether
or not covered by insurance) to any material operating asset or
group of operating assets;
(xiii) entered into or amended any purchase or sale contract outside
the ordinary course of business;
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<PAGE>
(xiv) suffered any amendment, termination, suspension or revocation
of, any Governmental Permit;
(xv) joined any new or amended or modified any already existing
superannuation fund applicable to its employees other than the
Provident Fund;
(xvi) amended its Memorandum and Articles of Association;
(xvii) manufactured inventory in excess of its expected needs; or
(xviii) where applicable, agreed to do any of the foregoing.
Section 5.8. Taxes. Except as set forth in Schedule 5.8:
----- ------------
(a) Seller has accurately prepared and timely filed (including all
extensions) all Tax Returns.
(b) All such Tax Returns have been prepared in compliance with applicable
Requirements of Law and filed by Seller and are true and correct and properly
reflect the Taxes due for the periods covered thereby.
(c) All Taxes due and payable by Seller have been properly paid.
(d) Seller has not waived any law or regulation fixing, or consented to
the extension of, any period of time for assessment of any Taxes which waiver or
consent is currently in effect nor been requested or been granted an extension
of time for filing any Tax Return which has not yet been filed.
(e) There are no material elections, consents or agreements with tax
authorities other than those reflected on tax forms filed with tax authorities.
(f) Except as set forth on Schedule 5.8, no deficiency or proposed
------------
adjustment (which has not settled or otherwise resolved) for any amount of Tax
has been proposed, asserted or assessed by any taxing authority against GNB or
its Subsidiary.
(g) Except as set forth on Schedule 5.8, there is no action, suit, taxing
------------
authority proceeding or audit now in progress, pending or, to the Knowledge of
Seller, threatened against or with respect to GNB or its Subsidiary.
(h) Except as set forth on Schedule 5.8, no claim has ever been made by a
------------
taxing authority in a jurisdiction where GNB or its Subsidiary, respectively, do
not file Tax Returns that such entity is or may be subject to Taxes assessed by
such jurisdiction.
(i) Except as set forth on Schedule 5.8, GNB and its Subsidiary will not
------------
be required (A) as a result of a change in method of accounting for a taxable
period ending on or prior to the Closing Date, to include any adjustment in
taxable income for any taxable period (or portion thereof) ending after the
Closing Date, (B) as a result of any Requirement of Law relating to taxation
matters to include any item of income in, or exclude any item of deduction from,
taxable
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<PAGE>
income for any taxable period (or portion thereof) ending after the Closing
Date, (C) as a result of any Requirement Law relating to taxation matters, to
include any item of income in taxableincome for any taxable period (or portion
thereof) ending after the Closing Date or (D) any installment sale made, or
prepaid income attributable to, a taxable period ending on or prior to the
Closing Date.
(j) Except as set forth on Schedule 5.8, GNB and its Subsidiary have no
------------
obligation or liability for the payment of Taxes of any other Person, including,
but not limited to the following, a liability of GNB or its Subsidiary for the
payment of any Tax arising (A) as a result of being (or ceasing to be) a member
of any Affiliated Group (or being included (or required to be included) in any
Tax Return relating thereto), (B) as a result from any expressed or implied
obligation to indemnify another person, and (C) as a result from GNB or its
Subsidiary succeeding to the Tax liability of any other person as a successor,
transferee or otherwise.
Section 5.9. Title to Assets. GNB is the exclusive and absolute owner of
---------------
and has good title to, or a valid leasehold interest to, all of its personal
property reflected in the June 30, 1999 Balance Sheet (other than property
disposed of since the date of the June 30, 1999 Balance Sheet in the ordinary
course of business consistent with past practice for fair value) in the amounts
and categories reflected therein, and all personal property acquired after the
date of the June 30, 1999 Balance Sheet, free and clear of all Encumbrances,
except for: (a) Permitted Encumbrances; (b) the lien of current taxes not yet
due and payable, and (c) other exceptions disclosed in Schedule 5.9. Except as
------------
disclosed in Schedule 5.9, the personal property of GNB is usable in the
------------
ordinary course of GNB's business and conforms to all Requirements of Law
relating to its construction, use and operation, except where such nonconformity
is not likely to have a Material Adverse Effect.
Section 5.10. Real Property.
-------------
(a) Schedule 5.10(A) sets forth a complete and accurate list, including a
----------------
brief description of the material terms of each material lease, sublease or
similar agreement under which GNB is lessee or sublessee of, or holds or
operates, any real property owned by any third Person (the "Leased Real
Property").
(b) GNB has a good and valid leasehold interest in all of the Leased Real
Property leased by it, free and clear of all Encumbrances except for Permitted
Encumbrances. The occupation, possession and use of the Leased Real Property by
GNB has not been disturbed and, to the Knowledge of the Seller, no claim has
been asserted or threatened which is adverse to the rights of GNB to the
continued occupation, possession and use of the Leased Real Property, as
currently utilized.
Section 5.11. Personal Property. Schedule 5.11 contains a list of all
----------------- -------------
machinery, equipment, and vehicles owned by GNB having an original cost of Seven
Hundred Eighty Thousand Hong Kong dollars (HK$780,000) or more.
Section 5.12. Personal Property Leases. Schedule 5.12 contains a brief
------------------------ -------------
description of each lease or other agreement or right under which GNB is lessee
of, or holds or operates, any machinery, equipment, or vehicle owned by a third
Person, except those which are terminable by
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<PAGE>
GNB without cost or penalty on 30 days' or less notice or which provide for
annual rentals of less than Seven Hundred Eighty Thousand Hong Kong dollars
(HK$780,000).
Section 5.13. Governmental Permits.
--------------------
(a) Except as disclosed in Schedule 5.13(A), GNB owns, holds or possesses
----------------
all material licenses, franchises, permits, privileges, immunities, approvals
and other authorizations from a Governmental Body which are necessary to entitle
it to own or lease, operate and use its assets and conduct its operations
substantially as currently operated (herein collectively called "Governmental
Permits"). Notwithstanding the foregoing, Governmental Permits required under
Environmental Laws are addressed solely in Section 5.19(b).
---------------
(b) Except as set forth in Schedule 5.13(B): (i) GNB has fulfilled and
----------------
performed its obligations under each of the Governmental Permits, except for
such nonfulfillment or nonperformance which is not likely to have a Material
Adverse Effect; and (ii) no written notice of cancellation, revocation,
suspension, or default or of any dispute concerning any Governmental Permit has
been received by GNB and, to the Knowledge of the Seller, there is no basis for
the issuance of such notice except as a result of the consummation of the
transactions contemplated hereby or except as is not likely to have a Material
Adverse Effect.
Section 5.14. Intellectual Property.
---------------------
(a) Except as set forth on Schedule 5.14(A), there are no material
----------------
patents, patent applications, trademarks or trademark registrations, service
marks or service mark registrations, trade names, Internet domain names,
business names, or any applications to register any of the foregoing,
copyrights, or any licenses to or from any Person with respect to any of the
foregoing, used by GNB or otherwise relating to the business substantially as
currently conducted by GNB (collectively, the "Intellectual Property").
(b) Each item constituting part of the Intellectual Property has been, to
the extent indicated in Schedule 5.14(B), duly registered, filed or issued, as
----------------
the case may be, as is indicated in Schedule 5.14(B), and such registrations,
----------------
filings and issuances remain in full force and effect. (c) Except as set forth
on Schedule 5.14(C), GNB owns and possesses all right, title and interest in and
----------------
to the Intellectual Property, and GNB has not received written notice of any
claim by any Person contesting the validity, enforceability, use, or ownership
of any Intellectual Property, patent disclosures or inventions or asserting that
GNB is infringing the intellectual property of others. Schedule 5.14(C) sets
----------------
forth all technology (including Intellectual Property) owned by third parties
and used by GNB. To the Knowledge of the Seller, except as set forth in Schedule
--------
5.14(C), no Person is infringing the rights of GNB with respect to any
-------
Intellectual Property. GNB uses all reasonable efforts to protect its trade
secrets.
Section 5.15. Employee Agreements and Plans.
-----------------------------
(a) Except as described in Schedule 5.15(A), GNB is not a party to or
----------------
bound by any collective bargaining agreement, employment agreement, severance
agreement, consulting, independent contractor or service agreement, deferred
compensation agreement, confidentiality agreement or covenant not to compete
which is material to its business.
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<PAGE>
(b) Except as set forth in Schedule 5.15(B): (i) GNB is in compliance with
----------------
all applicable Requirements of Law with respect to labor and employment,
including employment practices, terms and conditions of employment and wages,
overtime pay, and hours, except for such noncompliance as is not likely to have
a Material Adverse Effect; (ii) GNB has not engaged in any unfair labor practice
or illegally discriminated with regard to any aspect of employment on the basis
of any legally prohibited category or classification; and (iii) with respect to
employees and former employees who rendered services to, or participated in
conduct or activities in connection with GNB , GNB is not liable for any arrears
of wages, salaries or other payments.
Section 5.16. Superannuation.
--------------
(a) The superannuation schemes listed in paragraph (a) of part (1) of
Schedule 5.17 are the only employer sponsored superannuation schemes or pension
-------------
arrangements to which GNB pays contributions in respect of its employees.
(b) GNB has paid all contributions due by GNB to the Provident Fund in
respect of its employees.
(c) Except for its commitment to contribute to the Provident Fund, GNB has
no obligation, liability or duty to make any payment to any person in respect of
any superannuation, retirement benefits, pensions, annuities, life assurance
schemes or arrangements for the benefit of any of its employees.
Section 5.17. Contracts. Except as set forth in Schedule 5.17, GNB is not
--------- -------------
a party to or bound by:
(a) any consignment, distributor, dealer, manufacturer's representative,
sales agency, advertising representative or advertising or public relations
contract or agreement which is reasonably anticipated by GNB to involve the
payment of more than Seven Hundred Eighty Thousand Hong Kong Dollars
(HK$780,000) per year;
(b) any contract, agreement or commitment regarding the sale or other
disposition of products or services by GNB, or for the purchase of raw
materials, products or services by GNB, which is reasonably anticipated by GNB
to involve the receipt or payment of more than Seven Hundred Eighty Thousand
Hong Kong Dollars (HK$780,000) per year;
(c) any guarantee or indemnification agreement for the benefit of any
Person made or given outside of the ordinary course of business;
(d) any contract, agreement or commitment which provides for the
incurrence by GNB of indebtedness for borrowed money or capitalized lease
obligations;
(e) any partnership or joint venture agreement;
(f) any agreement, contract or commitment relating to capital expenditures
of an amount or value in excess of Seven Hundred Eighty Thousand Hong Kong
Dollars (HK$780,000);
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<PAGE>
(g) any agreement that restricts or purports to restrict the business
activity of GNB or limits GNB's ability to engage in any line of business or
compete with any Person; or
(h) any material license of software or other intellectual property; or
(i) any agreement that was not entered into in the ordinary course of
GNB's business consistent with past practice and that involves annual payments
in excess of Seven Hundred Eighty Thousand Hong Kong Dollars (HK$780,000).
Section 5.18. Status of Contracts. Except as set forth in Schedule 5.18
------------------- -------------
hereto: (a) each of the leases, contracts and other agreements of GNB listed in
Schedules 5.10(A), 5.12, 5.14, 5.15 and 5.17 (collectively, the "GNB
----------------- ---- ---- ---- ----
Agreements") constitutes a legal, valid and binding obligation of GNB (subject
to bankruptcy, insolvency, reorganization, moratorium and similar laws of
general application relating to or affecting creditors' rights and to general
equity principles) and is in full force and effect; and (b) GNB is not, nor, to
the Knowledge of the Seller, is it alleged to be, in material breach of, or
material default under, any of the GNB Agreements neither, to the Knowledge of
the Seller, is any other party thereto in such breach or default and, to the
Knowledge of the Seller, no event has occurred which the notice or lapse of time
would constitute such a breach or default or permit termination, modification or
acceleration of any of the GNB Agreements.
Section 5.19. Environmental Matters. Notwithstanding any other provision
---------------------
of this Agreement, this Section 5.19 contains the only representations or
------------
warranties of Seller with respect to Environmental Law or environmental matters,
and no other statement in this Agreement, in any Seller Ancillary Agreement or
in any other document or information delivered or given to or received by or on
behalf of Buyer in connection with the transactions contemplated by this
Agreement shall be deemed to be a representation or warranty relating to
Environmental Law or environmental matters.
(a) Except as set forth in Schedule 5.19(A), GNB is in compliance, and the
----------------
Business has for the past three (3) years complied, with all applicable
Environmental Laws except for such noncompliance as is not likely to have a
Material Adverse Effect.
(b) Except as set forth on Schedule 5.19(B), GNB owns, holds or possesses
----------------
all material Governmental Permits required under Environmental Laws necessary
for the occupation and use of the Leased Real Property and the operation of its
business substantially as currently conducted. All Governmental Permits required
under Environmental Laws that are currently owned, held, or possessed by GNB are
listed in Schedule 5.19(B). Except as set forth on Schedule 5.19(B), GNB is in
---------------- ----------------
compliance, and the Business has for the past three (3) years complied, with all
Governmental Permits except for such noncompliance as is not likely to have a
Material Adverse Effect. GNB shall make commercially reasonable efforts to
transfer or cause to be transferred to Buyer all such Governmental Permits at
the Closing, including:
(i) giving notice to State or local regulatory agencies of Hong Kong
with respect to the change in ownership or control or responsible
officials at the Leased Real Property;
(ii) completing and submitting notices of termination; and
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<PAGE>
(iii) with respect to Governmental Permits not transferred by the
Closing Date, co-operating fully with Buyer in obtaining the
transfer of such Governmental Permits as promptly thereafter as
possible.
(c) Except as set forth in Schedule 5.19(C), GNB is not subject to any
----------------
pending or, to the Knowledge of the Seller Regarding Environmental Matters,
threatened investigation by, order from, claim by, statutory request for
information from, or continuing agreement with any Person respecting: (i) any
violation of Environmental Law or Governmental Permits, (ii) any Remedial
Action, or (iii) any claim of Losses and Expenses, in each case arising from the
Release or threatened Release of a Contaminant or the presence of any
Contaminant on, in, at or beneath the Leased Real Property or the migration of
any Contaminant onto or from the Leased Real Property.
(d) Except as set forth in Schedule 5.19(D), GNB is not subject to any
----------------
pending or, to the Knowledge of the Seller Regarding Environmental Matters,
threatened judicial or administrative investigation, proceeding, order, notice
of violation, judgment, decree or settlement with any continuing obligation
alleging or relating to a violation of or liability under any Environmental Law
or Governmental Permits.
(e) Except as set forth in Schedule 5.19(E):
----------------
(i) Neither GNB nor the seller or assignor under the Acquisition
Contracts has reported a Release pursuant to an Environmental
Law;
(ii) Neither GNB nor the seller or assignor under the Acquisition
Contracts has filed a notice with respect to the Contamination
of land or the generation of hazardous wastes that is required
to be filed pursuant to an Environmental Law; or
(iii) to the Knowledge of the Seller Regarding Environmental Matters,
there has not been any disposal by GNB or the seller or
assignor under the Acquisition Contracts or Release of any
Contaminants on, at, in, or beneath any Leased Real Property.
(f) Except as set forth in Schedule 5.19(F), GNB has not received written
----------------
notice under any Environmental Law to the effect that it is or may be liable to
any Person as a result of the generation, storage, transportation, Release,
arrangement for disposal or disposal of any Contaminants on, at or, in any
Leased Real Property.
(g) Except as set forth in Schedule 5.19(G), to the Knowledge of the
----------------
Seller Regarding Environmental Matters, there are no underground storage tanks
(whether active or abandoned) located at, in, or beneath the Leased Real
Property.
(h) Except as disclosed in the Schedules to Section 5.19, to the
------------
Knowledge of the Seller Regarding Environmental Matters, as of the Closing Date
there is no condition existing on the premises constituting the Leased Real
Property that will give rise to any liability of GNB under any Environmental
Law.
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<PAGE>
(i) Seller has made available to Buyer true and correct copies of all
material environmental audits and consultant's reports relating to the past and
current operations, properties and facilities of GNB or any of their respective
predecessors, which are in its possession or under its reasonable control.
(j) To the Knowledge of the Seller Regarding Environmental Matters, the
sites identified the Disclosure Schedule constitute, and as the Disclosure
Letter is updated by Seller from time to time in its sole discretion prior to
the Closing Date, will constitute all PRP Sites as of the Closing Date.
(k) Notwithstanding any other provision of this Agreement, no
representations and warranties are made or shall be deemed to apply to the PRP
Sites.
Section 5.20. Insurance. Seller has, and at all times has had, valid
---------
insurance coverage in respect of the business against all risks normally insured
against by persons in the same industry, underwritten by one or more well-
established and reputable insurers or adequately capitalized Affiliates.
Schedule 5.20 contains a list of all insurance policies (specifying (i) the
-------------
insurer, (ii) the amount of the coverage, (iii) the type of insurance, (iv) the
policy number, and (v) any currently pending claims thereunder) maintained by or
on behalf of GNB on its properties, assets, business or personnel. GNB has not
failed to give any notice or present any claim under any insurance policy in due
and timely fashion. All premiums due under the policies listed on Schedule 5.20
-------------
have been paid or accrued for on the Financial Statements and all such policies
are in full force and effect and no notice of disallowance of any claim under
any insurance policy, whether or not currently in effect, has been received by
GNB. Other than (i) claims properly made against GNB in the ordinary course of
business pursuant to insurance programs written on a retrospective rating basis,
(ii) claims made as a result of premium audits relating to expired insurance
policies, (iii) deductible claims relating to losses that are incurred by not
reported, or losses that are known but not finally resolved, GNB has no
liability for or exposure to any premium expenses for expired policies and there
are no current claims by GNB under any such policy as to which coverage has been
questioned, denied or disputed by the underwriters of such policies.
Section 5.21. Product Warranties. All of GNB's unexpired, express product
------------------
warranties with respect to product that it manufactures or sells or that it has
heretofore manufactured or sold are described in Schedule 5.21. Except as set
--------------
forth in Schedule 5.21, GNB has not received written notice of any claim, and to
-------------
the Knowledge of the Seller there are no threatened claims against GNB, based on
any product warranty (except claims outstanding as of June 30, 1999, not
exceeding One Million Five Hundred Sixty Thousand Hong Kong Dollars
(HK$1,560,000) in the aggregate).
Section 5.22. Bank Accounts, Guarantees and Powers. Schedule 5.22 sets
------------------------------------ -------------
forth a list of all accounts, borrowing resolutions and deposit boxes maintained
by GNB at any bank or other financial institution and the names of the persons
authorized to effect transactions in such accounts and pursuant to such
resolutions and with access to such boxes.
Section 5.23. Accounts and Records. All the accounts, books, ledgers and
--------------------
financial and other material records of GNB have been maintained accurately and
in accordance with generally accepted accounting practices.
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<PAGE>
Section 5.24. No Misrepresentation. To the Knowledge of the Seller, the
--------------------
representations and warranties of Seller contained in this Agreement, the
Disclosure Schedules attached hereto, and the certificates and other instruments
delivered by Seller pursuant hereto, do not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
contained herein or therein not misleading.
Section 5.25. Sufficiency of Assets. GNB and the Subsidiary lease or
---------------------
have the right to use all Leased Real Property, buildings, machinery, equipment,
intellectual property and other assets necessary for the conduct of the
Business.
Section 5.26. Powers of Attorney. As of Closing, there will not be any
------------------
outstanding powers of attorney executed on behalf of GNB or its Subsidiary other
than with respect to the filing of taxes, customs and similar matters and
intellectual property registrations.
Section 5.27. Acquisition Contracts. GNB has acquired and will at
---------------------
Closing be or be entitled to become the owner, directly or indirectly of all of
the assets and liabilities relating to the Business in Hong Kong and the PRC
formerly owned or held respectively by either Pacific Dunlop (Asia) Limited or
Pacific Dunlop Holdings (China) Co. Ltd.
ARTICLE 6.
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Seller as follows.
Section 6.1. Organization. Buyer is a corporation duly organized,
------------
validly existing and is duly authorized under the laws of Singapore. Buyer is
not in violation of any of the provisions of its Memorandum and Articles of
Association. Buyer is duly qualified to do business and is in good standing as a
foreign corporation in each of the jurisdictions in which Buyer's operations
require that it qualify to transact business as a foreign corporation, except
for those jurisdictions where the failure to so qualify is not likely to have a
material adverse effect on Buyer's business or financial condition or the
ability of Buyer to lawfully consummate the transactions contemplated by this
Agreement in all material respects.
Section 6.2. Power and Authority. Buyer has the full corporate power and
-------------------
authority to execute and deliver this Agreement and the Buyer Ancillary
Agreements, to perform its obligations hereunder and thereunder, and to own and
lease its property and conduct its operations as currently conducted. Buyer's
execution, delivery and performance of this Agreement has been duly authorized
and approved by all necessary corporate action.
Section 6.3. Agreement Binding. This Agreement has been and the
-----------------
Ancillary Agreements will be duly executed and delivered by Buyer, and assuming
due authorization, execution and delivery by Seller, is and will be the legal,
valid and binding obligations of Buyer enforceable in accordance with their
respective terms, subject to general principles of equity and except as
enforceability may be limited by applicable bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium or other similar laws of general
application relating to creditors' rights generally.
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Section 6.4. Absence of Conflicts. The execution, delivery and
--------------------
performance of this Agreement and the Buyer Ancillary Agreements and the
consummation of the transactions contemplated hereby and thereby, will not:
(a) conflict with, result in a breach of the terms, conditions or
provisions of, or constitute a default, an event of default or an event creating
rights of acceleration, termination or cancellation, result in termination of or
result in the creation or imposition or crystallisation of any Encumbrance
under: (i) any term or provision of the Memorandum and Articles of Association
of Buyer, (ii) any note, instrument, contract, agreement, mortgage, indenture,
lease, license, or franchise to which Buyer is a party or by which it or any of
its assets are bound, (iii) any Court Order, or (iv) any Requirements of Law;
except in each case, for any of the foregoing which, individually or in the
aggregate, is or are not likely to have a material adverse effect on Buyer or
its business taken as a whole or hinder or impair the consummation of the
transactions contemplated hereby; or
(b) require the approval, consent, authorization or act of, or the making
by Buyer of any declaration, notification, filing or registration with, any
Person, except in each case, for any of the foregoing which, individually or in
the aggregate, if not taken, is or are not likely to have a material adverse
effect on Buyer or its business taken as a whole or materially hinder or impair
the consummation of the transactions contemplated hereby.
Section 6.5. No Litigation. There is no Action pending or, to the
-------------
knowledge of Buyer, threatened which questions the legality or propriety of the
transactions contemplated by this Agreement or the Buyer Ancillary Agreements or
which would impair the consummation of the transactions contemplated hereby, and
there has not been, to the knowledge of Buyer, any claim asserted by any Person
that could lead to such an Action.
Section 6.6. Investment Representation. Buyer is acquiring the Shares for
-------------------------
investment and not with a view to the distribution thereof or dividing all or
any part of its interest therein with any other Person.
Section 6.7. No Advisor. Neither Buyer nor any Person acting on its
----------
behalf has retained any advisor, broker, investment banker or financial advisor
in connection with this Agreement or any transaction contemplated hereby for
which Seller may be liable.
Section 6.8. No Misrepresentation. To the knowledge of Buyer, the
--------------------
representations and warranties of Buyer contained in this Agreement and the
certificates and other instruments delivered by Buyer pursuant hereto do not
include any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements made not misleading.
ARTICLE 7.
ACTION PRIOR TO THE CLOSING DATE
Buyer and Seller covenant and agree to take the following actions between
the date hereof and the Closing Date:
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Section 7.1. Preserve Accuracy of Representations and Warranties. Buyer
---------------------------------------------------
and Seller shall, and Seller shall cause GNB to, refrain from taking any action
that would render any representation or warranty contained in this Agreement
inaccurate as of the Closing Date. Buyer and Seller shall promptly notify the
other of any Action, investigation, or other proceeding, that shall be
instituted or threatened against such party or in the case of Seller, against
GNB, to restrain, prohibit or otherwise challenge the legality of any
transaction contemplated by this Agreement.
Section 7.2. Consents and Approvals.
----------------------
(a) During the period prior to the Closing Date, Seller and Buyer shall,
and Seller shall cause GNB to, act diligently and reasonably, and shall
cooperate with each other, to secure any consents and approvals of any
Governmental Body or any other Person required to be obtained in order to effect
the consummation of the transactions contemplated by this Agreement and preserve
for the benefit of GNB its rights under permits and agreements.
(b) Notwithstanding the provisions of Section 7.2(a), in the event that by
--------------
March 31, 2001 GNB shall not have entered into an assignment or new lease of the
Leased Real Property as contemplated by clauses 7.2, 7.3 or 7.4 of the
Acquisition Contract with respect to the assets formerly owned by Pacific Dunlop
(Asia) Limited (the "Current Leases") because of a failure to obtain necessary
consents, registrations or approvals, and, as a result thereof GNB is required
to enter into another lease ("the Substitute Lease") on terms less favourable
than those contained in the particular Current Lease(s) not directly replaced,
Seller shall indemnify Buyer against the difference between the economic terms
of the particular Current Lease affected for the period between the date of
commencement of the Substitute Lease and the balance of the term of that Current
Lease, provided the Company shall have used its reasonable endeavours to secure
a lease of premises of substantially similar location and condition as the
Current Lease effected, and on terms no less favourable than those available
under the particular Current Lease effected.
Section 7.3. Operations Prior to the Closing Date.
------------------------------------
(a) During the period prior to the Closing Date, Seller shall cause GNB to
operate and carry on its operations only in the ordinary course and
substantially as operated prior to the date hereof.
(b) Notwithstanding Section 7.3(a), except as set forth in Schedule7.3(B),
-------------- --------------
as expressly contemplated by this Agreement, or with the express prior consent
of Buyer, Seller shall not take and shall cause GNB not to take any of the
actions set forth in Section 5.7(b); provided, however, notwithstanding
--------------
anything to the contrary herein, Seller shall not make any capital expenditure
in excess of Hong Kong equivalent of US$250,000 (other than as permitted by
Section 7.3(b) of the US Agreement) without the prior written approval of Buyer.
Section 7.4. Changes to Employment Conditions. Seller covenants with
--------------------------------
Buyer to ensure that the warranty in Section 5.7(b)(viii) will not be breached
--------------------
in any material respect between the date of this Agreement and Closing.
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<PAGE>
Section 7.5. Notification of Changes. Each of Seller and Buyer shall
----------------------
promptly notify the other of any event that causes any representation or
warranty given by such party in Articles 4, 5 and 6 to become untrue.
-------------------
Section 7.6. Superannuation
--------------
(a) Before the Closing Date, Buyer must make all arrangements necessary to
provide superannuation benefits for each Existing Member with effect from
Closing.
(b) Within one month (or any longer period agreed between Buyer and
Seller) after the Closing Date but in any event before the Transfer Date, Buyer
must, subject to completion of all requisite registrations or applications for
exemption under the Occupational Retirement Schemes Ordinance in Hong Kong which
Buyer will use its best efforts to complete in a timely fashion, ensure that
each Existing Member is offered membership in a New Provident Fund sponsored by
the Buyer which complies with all registration and other requirements applicable
to registered schemes or exempted schemes as applicable under the Occupational
Retirement Schemes Ordinance and all other Hong Kong laws with effect from the
Closing Date on terms and conditions which provide in respect of each Existing
Member who accepts that offer:
(i) in respect of the period after the Closing Date, benefits which
are substantially the same as those provided for in respect of
the Existing Member under the Governing Rules of the Provident
Fund in force on the Closing Date; and
(ii) in the case of an Existing Member who gives the authorisation
referred to in Section 7.6(c)(ii), as from the date the Existing
------------------
Member's Benefit Entitlement under the Provident Fund is
transferred to the New Provident Fund sponsored by the Buyer, the
amount of such Benefit Entitlement adjusted to take account of
the earnings and expenses of the New Provident Fund after the
date that such entitlement is so transferred.
(c) The offer of membership referred to in Section 7.6(b) must include or
--------------
attach a form or forms acceptable to the trustee of the Provident Fund to be
completed and signed by the Existing Member under which he may elect either:
(i) that the trustee of the Provident Fund (as its only obligation in
respect of the Existing Member) provide the benefit due to the
Existing Member as of the Closing Date under the Provident Fund
upon the termination of GNB's membership of the Provident Fund;
or
(ii) in lieu of any benefit whatsoever being provided in respect of
the Existing Member under the Provident Fund, that the trustee of
the Provident Fund (as its only obligation in respect of the
Existing Member) cause his or her Benefit Entitlement to be
transferred to the New Provident Fund,
and under which the trustee of the Provident Fund is released from all
liability in respect of the Existing Member upon the provision of that
benefit or the transfer of that amount, as the case may be.
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<PAGE>
(d) Seller must use all reasonable endeavours to ensure that on or before
the day which is 10 Business Days after the later of:
(i) the Transfer Date; and
(ii) the date on which the Benefit Entitlements under the Provident
Fund have been calculated,
the trustee of the Provident Fund agrees to pay the Benefit Entitlements of such
Existing Members to the trustee of the New Provident Fund, adjusted for interest
in respect of the period between the Closing Date and the date the amount is
paid at the rate which applies under the Governing Rules of the Provident Fund
for the purpose of determining relevant benefits which become payable from the
Provident Fund during that period. The interest payable accrues from day to
day.
(e) The Benefit Entitlements and any interest payable under Section 7.6(d)
--------------
must be paid in immediately available funds except to the extent that the
trustee of the New Provident Fund agrees to accept other assets in whole or
partial satisfaction of those amounts and, to the extent that the trustee of the
Buyer's Fund agrees to accept other assets, the calculation of the relevant
amounts under this Section 7.6 shall be based on the value of those assets as
-----------
agreed between the trustees of the Provident Fund and the New Provident Fund.
(f) An Existing Member's Benefit Entitlement under the Provident Fund for
the purposes of this section shall be the total amount accumulated in respect of
him or her in accordance with the Governing Rules of the Provident Fund as at
the Closing Date.
(g) Seller must provide, and must use all reasonable endeavours to ensure
that the trustees of the Provident Fund provide, to Buyer and the New Provident
Fund any information in respect of Existing Members reasonably required by them
to give effect to this Section 7.6.
-----------
(h) Except with the consent of Buyer, as from the date of this agreement,
Seller must use all reasonable endeavours to ensure that no action is taken,
discretion exercised or omission occurs which would:
(i) alter the level of benefits or contributions in respect of
Existing Members under the Governing Rules of the Provident Fund
from the levels applicable immediately before the date of this
agreement; or
(ii) alter the level of any Existing Member's Benefit Entitlement
under the Provident Fund.
(i) Buyer must provide, and use all reasonable endeavours to ensure that
the trustee of the New Provident Fund provides to Seller and the trustees of the
Provident Fund any information reasonably required by them to give effect to
this Section 7.6.
-----------
(j) Buyer must secure in respect of Existing Members a benefit on his or
her death or total and permanent disablement while in the employ of GNB between
the Closing Date and the
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<PAGE>
date he or she accepts or declines the offer referred to in Section 7.6(b) of an
--------------
amount at least equal to the value of the insured portion of the death or total
and permanent disablement benefit which would have been payable from the
Provident Fund if the Existing Member had died or become totally and permanently
disabled on the Closing Date.
Section 7.7. General. Each of the parties will use its reasonable best
-------
efforts to take all action and to do all things necessary, proper, or advisable
in order to consummate and make effective the transactions contemplated by this
Agreement (including satisfaction, but not waiver, of the closing conditions set
forth below).
Section 7.8. Preservation of Business. Seller shall cause GNB to use
------------------------
reasonable best efforts to keep its business and properties substantially
intact, including its present operations, physical facilities, working
conditions, and relationships with lessors, licensors, suppliers, customers and
employees.
ARTICLE 8.
CONDITIONS TO CLOSING
Section 8.1. Conditions to the Obligations of the Buyer. The obligations
------------------------------------------
of Buyer under this Agreement shall, at the option of Buyer, be subject to the
satisfaction, on or prior to the Closing Date, of each of the following
conditions:
(a) No Misrepresentation or Breach of Covenants and Warranties. Seller
----------------------------------------------------------
shall have complied in all material respects with its covenants and agreements
herein and in the Coordinating Agreement. Each of the representations and
warranties of Seller contained in this Agreement and each of the Seller
Ancillary Agreements shall be true and correct in all material respects on the
Closing Date as though made on the Closing Date (except with respect to those
representations and warranties that speak as to a particular date or time, which
only need to be true and correct as of such date or time), except for changes
therein specifically permitted by this Agreement or resulting from any
transaction expressly consented to in writing by Buyer; and there shall have
been delivered to Buyer a closing certificate in a form reasonably satisfactory
to the Buyer to such effect, dated the Closing Date, signed by the Chairman or
Managing Director of Seller.
(b) Closing Documents. Buyer shall have received from Seller the closing
-----------------
documents contemplated by Section 3.2.
-----------
(c) Necessary Approvals. Seller and Buyer shall have received all
-------------------
approvals and actions of or by all Governmental Bodies and any other Person
which are necessary to consummate the transactions contemplated hereby and by
the ROW Agreements and preserve for the benefit of GNB its rights under the GNB
Agreements which are material to the operation of the Business.
(d) No Suit. No Action by any Governmental Body shall be pending or
-------
threatened questioning the legality of this Agreement or the consummation of the
transactions contemplated hereby in whole or in part.
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<PAGE>
(e) No Restraint. No Court Order shall have been issued and be in effect
------------
which restrains or prohibits any material transaction contemplated hereby.
(f) US Agreement. The transactions contemplated by the US Agreement
------------
shall have closed simultaneously with the Closing.
(g) No Material Adverse Change. On the Closing Date, there shall not be a
--------------------------
Material Adverse Effect.
(h) Coordinating Agreement. All conditions to Exide Corporation's
----------------------
obligations set forth in Sections 5.5, 5.6 and 5.7(a) of the Coordinating
Agreement shall have been satisfied.
Notwithstanding the failure of any one or more of the foregoing conditions,
Buyer may, at its option, proceed with the Closing without satisfaction, in
whole or in part, of any one or more of such conditions and without written
waiver; provided however, that in so proceeding with the Closing, and
notwithstanding any other provision of this Agreement, Buyer shall be deemed to
have waived any such failure and any rights or remedies it may have against
Seller by reason of such failure.
Section 8.2. Conditions to the Obligations of Seller. The obligations of
---------------------------------------
Seller under this Agreement shall, at the option of Seller, be subject to the
satisfaction, on or prior to the Closing Date, of each of the following
conditions:
(a) No Misrepresentation or Breach of Covenants and Warranties. Buyer
----------------------------------------------------------
shall have complied in all material respects with its covenants and agreements
herein and in the Coordinating Agreement. Each of the representations and
warranties of the Buyer contained in this Agreement and the Buyer Ancillary
Agreements shall be true and correct in all material respects on the Closing
Date as though made on the Closing Date (except with respect to those
representations and warranties that speak as to a particular date or time, which
only need to be true and correct as of such date or time), except for changes
therein specifically permitted by this Agreement or resulting from any
transaction expressly consented to in writing by Seller; and there shall have
been delivered to Seller a closing certificate in a form reasonably satisfactory
to the Seller to such effect, dated the Closing Date and signed by the President
or a Vice President of the Buyer;
(b) Closing Documents. Seller shall have received from Buyer the closing
-----------------
documents contemplated by Section 3.3.
-----------
(c) Payment of Purchase Price. Buyer shall have tendered payment of the
-------------------------
Purchase Price.
(d) Necessary Approvals. Seller and Buyer shall have received all
-------------------
approvals and actions of or by all Governmental Bodies and any other Person
which are necessary to consummate the transactions contemplated hereby and by
the ROW Agreements and preserve for the benefit of Buyer its rights under
agreements which are material to the operation of its business.
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<PAGE>
(e) No Suit. No Action by any Governmental Body shall be pending or
-------
threatened questioning the legality of this Agreement or the consummation of the
transactions contemplated hereby in whole or in part.
(f) No Restraint. No Court Order shall have been issued and be in effect
------------
which restrains or prohibits any material transaction contemplated hereby.
(g) US Agreement. The transactions contemplated by the US Agreement
------------
shall have closed simultaneously with the Closing.
(h) No Material Adverse Change. On the Closing Date, there shall have
--------------------------
been no event, occurrence or condition (other than as a result of general
economic conditions or events affecting the automotive and industrial battery
business as a whole) which has, or could reasonably be expected to have, a
material adverse effect on the financial condition, assets, results or
operations, businesses, or operations of Buyer taken as a whole.
(i) Coordinating Agreement. All conditions to Pacific Dunlop Holdings
----------------------
(USA) Inc.'s obligations set forth in Sections 5.5 and 5.7(b) of the
Coordinating Agreement shall have been satisfied.
Notwithstanding the failure of any one or more of the foregoing conditions,
Seller may, at its option, proceed with the Closing without satisfaction, in
whole or in part, of any one or more of such conditions and without written
waiver; provided however, that in so proceeding with the Closing, and
notwithstanding any other provision of this Agreement, Seller shall be deemed to
have waived any such failure and any rights or remedies it may have against
Buyer by reason of such failure.
ARTICLE 9.
TERMINATION
Section 9.1. Termination. Anything contained in this Agreement to the
-----------
contrary notwithstanding, this Agreement may be terminated at any time prior to
the Closing Date:
(a) by the mutual written consent of Buyer and Seller;
(b) by Buyer or Seller if the Closing shall not have occurred on or before
December 31, 2000 unless: (i) all conditions to Closing have previously been
satisfied or waived, and (ii) the Closing has not then occurred solely because
the date for Closing specified in Section 3.1 has not yet occurred and unless
-----------
such failure to close is due primarily to the breach by the party seeking
termination of its agreements, representations or warranties contained herein;
(c) by Buyer in the event of any breaches in any material respect by
Seller of Seller's agreements, covenants, representations or warranties
contained herein, and which Seller has failed to remedy or cure within twenty
one (21) days after receipt of notice from Buyer requesting that such breaches
be remedied or cured;
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<PAGE>
(d) by Seller in the event of any breaches in any material respect by
Buyer of Buyer's agreements, covenants, representations or warranties contained
herein, which Buyer has failed to remedy or cure within twenty one (21) days
after receipt of notice from Seller requesting that such breaches be remedied or
cured; or
(e) by Buyer or Seller if any court shall have issued a Court Order or if
any Governmental Body shall have issued a decree or ruling or taken any other
action permanently restraining, enjoining or otherwise prohibiting the
consummation of the transactions contemplated hereby.
Section 9.2. Notice of Termination. Any party desiring to terminate this
---------------------
Agreement pursuant to Section 9.1 shall give written notice of such termination
-----------
to the other parties to this Agreement.
Section 9.3. Effect of Termination. In the event that this Agreement
---------------------
shall be terminated pursuant to this Article 9, all further obligations of the
---------
parties under this Agreement (other than Sections 11.2, 11.8, and 11.11 of this
------------- ---- -----
Agreement and Sections 5.2, 5.3 and 5.4 of the Coordinating Agreement) shall be
------------ --- ---
terminated without further liability of any party to the other, provided that
nothing herein shall relieve either party from liability for its willful breach
of this Agreement.
ARTICLE 10.
EXCLUSIVITY OF REMEDY
Section 10.1. Indemnification by Seller. Seller's sole and exclusive
-------------------------
indemnification obligations under this Agreement are set forth in the
Coordinating Agreement.
Section 10.2. Indemnification by Buyer. Buyer's sole and exclusive
------------------------
indemnification obligations under this Agreement are set forth in the
Coordinating Agreement.
Section 10.3. Exclusivity of Remedy. Except as provided in Section 9.3,
--------------------- -----------
with respect to any breach by either party of its representations, warranties,
covenants, or agreements in this Agreement, the respective Buyer or Seller
Ancillary Agreements, or the ROW Agreements and the transactions contemplated
hereby and thereby, the sole and exclusive remedy of the other party (in
contract, tort, for contribution, under Requirements of Law, or otherwise) shall
be the indemnification provided in the Coordinating Agreement. In view of this
exclusivity of remedy provision, Buyer and Seller covenant and agree for
themselves and their respective Affiliates that they will not bring, maintain,
join or prosecute any Action or other proceeding against the other or its
Affiliates for breach of this Agreement or indemnity therefor except as provided
in the Coordinating Agreement.
ARTICLE 11.
GENERAL PROVISIONS
Section 11.1. Notices. Any notice, request, instruction or other
-------
document to be given hereunder shall be in writing and: (a) delivered
personally; (b) sent by reputable overnight
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<PAGE>
courier; or (c) transmitted by facsimile, according to the instructions set
forth below. Such notices shall be sent to the following addresses and/or
facsimile numbers and shall be deemed given: (x) if delivered personally, at the
time delivered; (y) if sent by reputable overnight courier, at the time sent, or
(z) if transmitted by facsimile, at the time when receipt is confirmed by the
sending facsimile machine.
If to Seller, to:
Pacific Dunlop Limited
Level 41
101 Collins Street
Melbourne, Victoria 3000
Australia
Attention: Managing Director
Facsimile: 613-9270-7634
with a copy to:
Gardner, Carton & Douglas
321 N. Clark Street
Suite 3400
Chicago, Illinois 60610
United States of America
Attention: Mr. Robert J. Wilczek
Facsimile: 1-312-644-3381
If to Buyer, to:
c/o Exide Corporation
2901 Hubbard Road
Ann Arbor, MI 48105
Attention: General Counsel
Facsimile: (734) 827-2575
United States of America
with a copy to:
Kirkland & Ellis
200 East Randolph Drive
Chicago, Illinois 60601
Attention: Mr. Carter W. Emerson, P.C.
Facsimile: 312-861-2200
or to such other address as such party may indicate by a notice delivered to the
other parties hereto in accordance with the provisions of this Section 11.1.
------------
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<PAGE>
Section 11.2. Confidential Information. Each party agrees that it will
-------------------
treat in confidence all documents, materials and other information which it
shall have obtained regarding any of the other parties during the course of the
negotiations leading to the consummation of the transactions contemplated hereby
(whether obtained before or after the date of this Agreement), the investigation
provided for herein and the preparation of this Agreement and other related
documents ("Confidential Information"), and, in the event the transactions
contemplated hereby shall not be consummated, each party will return to the
other party all copies of nonpublic Confidential Information which have been
furnished in connection therewith. Confidential Information shall not be
communicated to any third Person (other than the parties' respective counsel,
accountants, financial advisors, or environmental consultants). No party shall
use any Confidential Information in any manner whatsoever except solely for the
purpose of evaluating the proposed transaction. Notwithstanding the foregoing,
after the Closing, Buyer may use or disclose any Confidential Information
related to GNB. The Seller shall not at any time after the Closing disclose any
Confidential Information relating to GNB. The obligation of each party to treat
Confidential Information in confidence shall not apply to any Confidential
Information which (i) is or becomes available to such party from a source other
than such party, (ii) is or becomes available to the public other than as a
result of disclosure by such party or its agents, (iii) is required to be
disclosed under applicable law or judicial process, but only to the extent it
must be disclosed, or (iv) as to which such party reasonably deems disclosure
necessary to obtain any of the consents or approvals contemplated hereby.
Section 11.3. No Public Announcement. Neither Buyer nor Seller shall,
----------------------
without the approval of the other party, issue any press release or other public
announcement concerning the transactions contemplated by this Agreement.
Notwithstanding the foregoing, either party may issue a press release or other
public announcement concerning the transactions contemplated by this Agreement
to the extent that such party or its Affiliates shall be so obligated by law, or
to comply with accounting, U.S. Securities and Exchange Commission, New York
Stock Exchange or Australian Stock Exchange disclosure obligations, provided
that such party shall be obligated to give the other party prior notice of such
press release or other public announcement if prior notice is commercially
feasible.
Section 11.4. Entire Agreement; Amendments. This Agreement, the
----------------------------
Coordinating Agreement, and the Exhibits and Schedules referred to herein and
therein and the Buyer Ancillary Agreements and the Seller Ancillary Agreements
contain the entire understanding of the parties hereto with regard to the
subject matter contained herein or therein, and supersede all prior written or
oral agreements, understandings or letters of intent between or among any of the
parties hereto. This Agreement shall not be amended, modified or supplemented
except by a written instrument signed by an authorized representative of each of
the parties hereto.
Section 11.5. Successors and Assigns.
----------------------
(a) The rights of each party under this Agreement and the Coordinating
Agreement shall not be assignable without the written consent of the other
party; provided, however, that no such assignment shall relieve the assigning
party from any of its duties or obligations under this Agreement or the
Coordinating Agreement.
-30-
<PAGE>
(b) This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their successors and permitted assigns. Nothing in this
Agreement, expressed or implied, is intended or shall be construed to confer
upon any Person other than the parties and successors and assigns permitted by
this Section 11.5 any right, remedy, benefit or claim under or
------------
by reason of this Agreement.
Section 11.6. Interpretation.
--------------
(a) Article titles and headings to sections herein are inserted for
convenience of reference only and are not intended to be part of or to affect
the meaning or interpretation of this Agreement. The Schedules and Exhibits
referred to herein shall be construed with and as an integral part of this
Agreement to the same extent as if they were set forth herein.
(b) This Agreement and the Schedules and Exhibits hereto have been
mutually prepared, negotiated and drafted by each of the parties hereto and
thereto. The parties agree that the terms of this Agreement shall be construed
and interpreted against each party in the same manner and that no such
provisions shall be construed or interpreted more strictly against one party on
the assumption that an instrument is to be construed more strictly against the
party which drafted the agreement.
Section 11.7. Waivers. Any term or provision of this Agreement may be
-------
waived, or the time for its performance may be extended, pursuant to a written
action by the party or parties entitled to the benefit thereof. Any such waiver
shall be validly and sufficiently authorized for purposes of this Agreement if,
as to any party, it is authorized in writing by an authorized representative of
such party. Subject to Sections 8.1 and 8.2, the failure of any party hereto to
------------ ---
enforce at any time any provision of this Agreement shall not be construed to be
a waiver of such provision, nor in any way to affect the validity of this
Agreement or any part hereof or the right of any party thereafter to enforce
each and every such provision. No waiver of any breach of this Agreement shall
be held to constitute a waiver of any other or subsequent breach.
Section 11.8. Expenses. Subject to the provisions of the Coordinating
--------
Agreement or the ROW Agreements, regardless of whether the transactions provided
for in this Agreement are consummated, each party hereto will pay its own costs
and expenses incident to the negotiation, preparation and performance of this
Agreement, including the fees, expenses and disbursements of its counsel,
financial advisors, and accountants. Neither GNB nor the Business has borne and
will not bear any such costs or expenses.
Section 11.9. Partial Invalidity. Wherever possible, each provision
-----------
hereof shall be interpreted in such manner as to be effective and valid under
applicable law, but in case any one or more of the provisions contained herein
shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect, such provision shall be ineffective to the extent, but only to the
extent, of such invalidity, illegality or unenforceability without invalidating
the remainder of such invalid, illegal or unenforceable provision or provisions
or any other provisions hereof, unless such a construction would be
unreasonable.
Section 11.10. Execution in Counterparts. This Agreement may be executed
-------------------------
in one or more counterparts, each of which shall be considered an original
instrument, and shall become
-31-
<PAGE>
binding when one or more counterparts have been signed by each of the parties
hereto and delivered to each of Seller and Buyer.
Section 11.11. Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with the internal laws of the State of Illinois, USA,
without giving effect to any choice of laws provisions which may direct the
application of the laws of another jurisdiction.
Section 11.12. Further Assurances and Cooperation.
----------------------------------
(a) From and after the date of this Agreement, upon the request of either
Seller or Buyer or any of their respective Affiliates, the other party and its
Affiliates shall execute and deliver such instruments, documents or other
writings as may be reasonably necessary or desirable to confirm and carry out
and to effectuate fully the intent and purposes of this Agreement.
(b) After the Closing, on reasonable advance notice, Buyer shall cause GNB
to provide Seller, Seller's Affiliates and any advisor retained by Seller or its
Affiliates with reasonable access to the management and properties, and books,
records, and documents (which were in existence on the Closing) of GNB, during
normal business hours and in a manner which does not unreasonably interfere with
the business of GNB, for any reasonable purpose including, but not limited to,
the fulfilment of Seller's responsibilities under Section 4.1(a) of the
Coordinating Agreement, the enforcement of Seller's and its Affiliates' rights
under Article 2 of the Coordinating Agreement and clause (iii) of Section 4.2(a)
of the Coordinating Agreement. As reasonably necessary, the Seller, the Seller's
Affiliates, and any advisor retained by Seller or its Affiliates shall be
entitled to make copies of such books, records and documents at their expense.
If Buyer shall desire at any time to dispose of any such books, records or
documents, Buyer shall, prior to such disposition, give Seller a reasonable
opportunity to segregate and remove such books, records and documents as Seller
may select. The obligations of Buyer pursuant to this Section 11.12
-------------
shall survive the Closing indefinitely.
Section 11.13. No Reliance. The provisions of this Agreement are intended
-----------
for the sole benefit of Buyer and Seller and shall not inure to the benefit of
any other Person, other than successors and permitted assigns of Buyer and
Seller, whether as third party or otherwise.
Section 11.14. Disclosure Schedules. The Disclosure Schedules are hereby
--------------------
incorporated by reference into and made a part of this Agreement. The inclusion
of any item in the Disclosure Schedules is intended to qualify the
representations and warranties contained in this Agreement, and to set forth
other information required by this Agreement. Disclosure of information in any
one of the Disclosure Schedules shall be deemed to be a disclosure with respect
to every Section of this Agreement notwithstanding the presence or absence of a
cross-reference to the Disclosure Schedules under other Sections of this
Agreement if the meaning of such disclosure in the context of such other Section
is reasonably ascertainable. Disclosure of information in the Disclosure
Schedules shall not be deemed to be an admission by Seller that such information
is material for the purposes of this Agreement.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed the day and year first above written.
SELLER:
PACIFIC DUNLOP HOLDINGS (HONG KONG) LIMITED
By its duly appointed attorney:
__________________________________________
Name: Martin M. Hudson
Title: Attorney in Fact
BUYER:
EXIDE HOLDING ASIA PTE. LIMITED
By its Director duly authorized:
Signature:________________________________
Name:_____________________________________
Title:____________________________________
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<PAGE>
ASSET PURCHASE AGREEMENT
Dated as of 28 June 2000
between
PACIFIC DUNLOP HOLDINGS (SINGAPORE) PTE LTD
as Seller
and
BLUEWALL PTE. LTD to be renamed
EXIDE SINGAPORE PTE LIMITED
as Buyer
<PAGE>
<TABLE>
<S> <C>
ARTICLE 1. DEFINITIONS............................................. 1
1.1. Definitions.................................................. 1
ARTICLE 2. PURCHASE AND SALE....................................... 6
2.1. Purchased Assets............................................. 6
2.2. Excluded Assets.............................................. 8
2.3. Assumed Liabilities.......................................... 8
2.4. Excluded Liabilities......................................... 9
2.5. Coordinating Agreement....................................... 10
2.6. Ownership and Risk........................................... 10
2.7. Taxes........................................................ 10
2.8. Defence of Actions........................................... 10
ARTICLE 3. PURCHASE PRICE.......................................... 11
3.1. Purchase Price............................................... 11
3.2. Allocation of Purchase Price and Assumed Liabilities......... 11
ARTICLE 4. CLOSING................................................. 11
4.1. Closing...................................................... 11
4.2. Documents to be delivered to Buyer........................... 11
4.3. Documents to be Delivered to Seller.......................... 13
4.4. Form of Documents............................................ 13
ARTICLE 5. REPRESENTATIONS AND WARRANTIES OF SELLER................ 13
5.1. Organization................................................. 13
5.2. Power and Authority; Agreement Binding....................... 14
5.3. Absence of Conflicts......................................... 14
5.4. No Litigation................................................ 14
5.5. No Violation................................................. 15
5.6. Operations Since June 30, 1999............................... 15
5.7. Taxes........................................................ 17
5.8. Title to Assets.............................................. 17
5.9. Real Property................................................ 17
5.10. Personal Property............................................ 18
5.11. Personal Property Leases..................................... 18
5.12. Governmental Permits......................................... 18
5.13. Intellectual Property........................................ 18
5.14. Employees.................................................... 19
5.15. Central Provident Fund Contributions......................... 19
5.16. Contracts.................................................... 20
5.17. Status of Contracts.......................................... 20
5.18. Environmental Matters........................................ 21
5.19. Insurance.................................................... 23
5.20. Product Warranties........................................... 23
5.21. No Advisor................................................... 23
5.22. Accounts and Records......................................... 23
5.23. No Misrepresentation......................................... 23
5.24. Purchased Assets............................................. 24
5.25. Material Consents............................................ 24
</TABLE>
i
<PAGE>
<TABLE>
<S> <C>
5.26. Powers of Attorney........................................... 24
ARTICLE 6. REPRESENTATIONS AND WARRANTIES OF BUYER................. 24
6.1. Organization................................................. 24
6.2. Power and Authority.......................................... 24
6.3. Agreement Binding............................................ 25
6.4. Absence of Conflicts......................................... 25
6.5. No Litigation................................................ 25
6.6. No Advisor................................................... 26
6.7. No Misrepresentation......................................... 26
ARTICLE 7. ACTION PRIOR TO THE CLOSING DATE........................ 26
7.1. Preserve Accuracy of Representations and Warranties.......... 26
7.2. Consents of Third Parties, Governmental Approvals............ 26
7.3. Operations Prior to the Closing Date......................... 28
7.4. Intercompany Agreements...................................... 29
7.5. Notification of Changes...................................... 29
7.6. Changes to Employment Conditions............................. 29
7.7. General...................................................... 29
ARTICLE 8. CONDITIONS TO CLOSING................................... 29
8.1. Conditions to the Obligations of the Buyer................... 29
8.2. Conditions to the Obligations of Seller...................... 31
ARTICLE 9. ADDITIONAL AGREEMENT OF THE PARTIES..................... 32
9.1. Taxes........................................................ 32
9.2. Employees and Employee Benefit Plans......................... 34
9.3. Post-Closing Remittances..................................... 35
9.4. Insurance.................................................... 35
ARTICLE 10. TERMINATION............................................. 36
10.1. Termination.................................................. 36
10.2. Notice of Termination........................................ 36
10.3. Effect of Termination........................................ 36
ARTICLE 11. EXCLUSIVITY OF REMEDY................................... 37
11.1. Indemnification by Seller.................................... 37
11.2. Indemnification by Buyer..................................... 37
11.3. Exclusivity of Remedy........................................ 37
ARTICLE 12. GENERAL PROVISIONS...................................... 37
12.1. Notices...................................................... 37
12.2. Confidential Information..................................... 39
12.3. No Public Announcement....................................... 39
12.4. Entire Agreement; Amendments................................. 39
12.5. Successors and Assigns....................................... 40
12.6. Interpretation............................................... 40
12.7. Waivers...................................................... 40
12.8. Expenses..................................................... 41
12.9. Partial Invalidity........................................... 41
12.10.Execution in Counterparts.................................... 41
12.11.Governing Law................................................ 41
</TABLE>
ii
<PAGE>
<TABLE>
<S> <C>
12.12. Further Assurances and Cooperation......................... 41
12.13. No Reliance................................................ 42
12.14. Disclosure Schedules....................................... 42
</TABLE>
EXHIBITS
Exhibit A Allocation of Purchase Price and Assumed Liabilities
SCHEDULES
1.1 Material Consents and Permitted Encumbrance
3.2 Purchase Price Allocation
5.1 Organization
5.3 Absence of Conflicts
5.4 No Litigation
5.5 No Violation
5.6(A) Operations Since June 30, 1999
5.6(B) Operations Since June 30, 1999
5.7 Taxes
5.8 Title to Assets
5.9 Real Property
5.10 Personal Property
5.11 Personal Property Leases
5.12(A) Governmental Permits
5.12(B) Governmental Permits
5.13(A) Intellectual Property
5.13(B) Intellectual Property
5.13(C) Intellectual Property
5.14(A) Employees
5.14(B) Employees
5.16(A) Contracts
5.17 Status of Contracts
5.18(A) Environmental Matters
5.18(B) Environmental Matters
5.18(C) Environmental Matters
5.18(D) Environmental Matters
5.18(E) Environmental Matters
5.18(F) Environmental Matters
5.18(G) Environmental Matters
5.18(J) Environmental Matters
5.19 Insurance
5.20 Product Warranties
7.2(b)(1) Consents of Third Parties, Governmental Approvals
7.3 Operations Prior to the Closing Date
iii
<PAGE>
7.4 Intercompany Agreements
iv
<PAGE>
ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT, dated as of 28 June 2000 (the "Agreement") is
executed by and among:
PACIFIC DUNLOP HOLDINGS (SINGAPORE) PTE LTD, a company incorporated in the
Republic of Singapore, having its registered address at 6 Loyang Way 1,
Singapore 508704 (the "Seller"); and BLUEWALL PTE. LTD TO BE RENAMED EXIDE
SINGAPORE PTE LIMITED a company incorporated in Singapore, registered number
200001442E and having its registered office at 9 Raffles Place, Republic Plaza
#34-00, Singapore 048619 (the "Buyer").
WHEREAS, Seller is engaged in the business of assembling, distributing and
selling industrial batteries in Singapore at and from various locations owned by
Seller or third parties (the "Business"); and
WHEREAS, Buyer desires to purchase from Seller, and Seller desires to sell to
Buyer, the Business and substantially all of the assets and properties owned by
the Seller and used exclusively in relation to the Business, all on the terms
and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, Buyer and Seller agree as follows:
ARTICLE 1.
DEFINITIONS
1.1. Definitions
-----------
In this Agreement, the following terms have the meanings specified or
referred to in this Section 1.1 and shall be equally applicable to both the
-----------
singular and plural forms. Any agreement referred to below shall mean such
agreement as amended, supplemented and modified from time to time to the
extent permitted by the applicable provisions thereof and by this
Agreement.
"Action" means any lawsuit, arbitration or regulatory governmental or other
proceeding or investigation, whether at law or in equity.
"Adjoining Properties" shall mean all sites or locations other than the
Leased Real Property or the PRP Sites to which Contaminants have migrated
from the Leased Real Property through air, soil, surface water or
groundwater.
"Affiliate" means, with respect to any Person, any other Person who
directly or indirectly controls, is controlled by or is under common
control with such Person.
<PAGE>
"Agreement" has the meaning specified in the first paragraph of this
Agreement.
"Assumed Liabilities" has the meaning specified in Section 2.3.
"Balance Sheets" means the balance sheets that are part of the Financial
Statements.
"Business" has the meaning specified in the second paragraph of this
Agreement.
"Business Day" means a day other than Saturday, Sunday or a day on which
United States national banks are closed.
"Buyer" has the meaning specified in the first paragraph of this Agreement.
"Buyer Ancillary Agreements" means all agreements, instruments and
documents being or to be executed and delivered by Buyer under this
Agreement.
"Closing"' has the meaning specified in Section 4.1.
"Closing Date" has the meaning specified in Section 4.1.
"Confidential Information" has the meaning specified in Section 12.2.
"Contaminant" means a solid, liquid, gas, odour, heat, sound, vibration,
radiation or substance which makes or may make the Leased Real Property or
the surrounding Environment:
(a) unsafe or unfit for habitation or occupation by persons or animals;
(b) degraded in its capacity to support plant life;
(c) otherwise Environmentally degraded; or
(d) do not comply with any Environmental Law.
"Contractor" means all persons, other than Seller Employees who have
performed or currently perform work for Seller under any current contract.
"Contractor Entitlements" means any remuneration, compensation or benefits
payable by Seller to or on behalf of or in respect of Contractors.
"Coordinating Agreement" means that certain Coordinating Agreement dated as
of 9 May 2000, between Pacific Dunlop Holdings (USA) Inc., and Exide
Corporation, as amended and supplemented from time to time.
2
<PAGE>
"Court Order" means any judgment, order, award or decree of any foreign,
federal, state or local court or tribunal or governmental agencies and any
award in any arbitration proceeding.
"Deemed Transferring Employees" means a Seller Employee who is an Employee
as defined in the Employment Act.
"Disclosure Schedules" means the Disclosure Schedules dated 12 June 2000,
as modified pursuant to Section 5.7 of the Coordinating Agreement.
"Employment Act" means the Employment Act, Chapter 91 of Singapore.
"Employment Benefit" means all wages, salary, remuneration, compensation
and benefits payable by Seller to or on behalf of or in respect of Seller
Employees.
"Employee Leave Benefit" means annual leave, long service leave and sick
leave.
"Encumbrance" means any lien, charge, security interest, mortgage, pledge,
power of sale, easement, encroachment, covenant, restriction on transfer or
other restriction on or defect in title or other encumbrances.
"Environment" means the physical factors of the surroundings of human
beings including, without limitation, the land, air, waters, atmosphere,
climate, sound, odours, taste and the biological factors of those
surroundings such as plants, animals and other forms of life.
"Environmental Law" means all Requirements of Law relating to pollution or
the regulation and protection of human health or the Environment, including
without limitation, those regarding or relating to emissions, discharges,
Releases or threatened Releases of Contaminants or otherwise relating to
the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Contaminants.
"Excluded Assets" has the meaning specified in Section 2.2.
"Excluded Liabilities" has the meaning specified in Section 2.4.
"Expenses" means any and all reasonable expenses incurred in connection
with investigating, defending or asserting any Action or overtly threatened
Action (including court filing fees, court costs, arbitration fees or
costs, witness fees, and reasonable fees and disbursements of legal
counsel, investigators, expert witnesses, accountants and other
professionals).
"Final Closing Date Balance Sheet" has the meaning specified in the
Coordinating Agreement.
"Financial Statements" has the meaning specified in the Coordinating
Agreement.
3
<PAGE>
"Governmental Body" means any Singapore, foreign, state or local
governmental authority, agency, or regulatory body.
"Governmental Permits" has the meaning specified in Section 5.12(a).
"Intellectual Property" has the meaning specified in Section 2.1(e).
"Intellectual Property Transfer/License Documents" has the meaning
specified in Section 4.2(e).
"Intercompany Agreements" means agreements between Seller and an Affiliate
of Seller in connection with the Business.
"Knowledge of the Seller" or similar phrases means matters actually known
to Thomas Minner, Thomas Smith, Thomas O'Hare, Mitchell Bregman, Barbara
Hatcher or Henry Lau.
"Knowledge of the Seller Regarding Environmental Matters" or similar
phrases means matters actually known to Barbara Hatcher or Henry Lau.
"Leased Real Property" has the meaning specified in Section 5.9(a).
"Losses" means losses, obligations, liabilities, settlement payments,
awards, judgments, fines, assessments, penalties, and damages.
"March 31, 2000 Balance Sheet" has the meaning specified in the
Coordinating Agreement, including the notes to such balance sheet.
"Material Adverse Effect" means any event, occurrence or condition (other
than as a result of general economic conditions or events or conditions
affecting the automotive and industrial battery industry as a whole) which
has, or could reasonably be expected to have, a material adverse effect on
the financial condition, assets, results of operations, Business, or
operations of the Business, taken as a whole.
"Material Consents" means those consents set forth on Schedule 1.1.
"Permitted Encumbrances" means the Encumbrances specifically set forth in
Schedule 1.1 hereto.
"Person" means any individual, corporation, partnership, limited liability
company or corporation, joint venture, association, joint-stock company,
trust, unincorporated organization or Governmental Body.
4
<PAGE>
"Principal US Agreement" means the Stock Purchase Agreement With Respect To
Pacific Dunlop GNB Corporation dated May 9, 2000 between Pacific Dunlop
Holdings (USA) Inc., as Seller; and Exide Corporation, as Buyer, as amended
and supplemented from time to time.
"PRP Sites" shall mean all sites (other than the Real Property and the
Adjoining Properties) with respect to which Seller, or any of its
successors or assignees have or may have liability under any Environmental
Law.
"Purchase Price" has the meaning specified in Section 3.1.
"Purchased Assets" has the meaning specified in Section 2.1.
"Receivables" has the meaning specified in Section 2.1(d).
"Release" includes any and all spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, dumping,
disposing and any other means by which a substance may be introduced into
or travel through the Environment.
"Remedial Action" shall include all actions required by a Court order or
otherwise by a Governmental Body to: (i) clean up, remove, remediate,
contain, treat, monitor, assess, evaluate or in any other way address
Contaminants; (ii) prevent or minimise the Release or threatened Release of
Contaminants; or (iii) investigate and determine if a remedial response is
needed and to design such a response and undertake post-remedial
investigation, monitoring, operation and maintenance.
"Requirements of Law" means any foreign, federal, state or local law,
statute, regulation, code or ordinance of any Governmental Body currently
in effect applicable to the operation of the Business.
"ROW Agreements" has the meaning specified in the Coordinating Agreement.
"Seller" means the party specified in the first paragraph of this Agreement
on the basis that the party's rights and obligations under this Agreement
are strictly limited to those of the Purchased Assets in which it has an
interest and those Assumed Liabilities and Seller Employees referrable to
it.
"Seller Agreements" has the meaning specified in Section 5.17.
"Seller Ancillary Agreements" means all agreements, instruments and
documents being or to be executed and delivered by the Seller under this
Agreement.
"Seller Employees" has the meaning specified in Section 9.2(a).
5
<PAGE>
"Tax" (and, with correlative meaning, "Taxes" and "Taxable") means any
federal, state, county, local or foreign income, alternative or add-on
minimum, gross income, gross receipts, capital gains, capital, property,
sales, use, transfer, license, excise, premium, lease, estimated,
environmental, registration, value added, stamp, real property, franchise,
employment, payroll, wage, withholding or minimum tax, ad valorem, or
customs duty and any other similar taxes or governmental charges, fees,
levies, assessments or liabilities of any kind whatsoever, whether computed
on a separate or consolidated, unitary or combined basis or in any other
manner, and includes any interest, penalty or fine, or addition to tax
imposed by any Governmental Body.
"Tax Return" means any return, report, computations and notices or similar
statement required to be filed with respect to any Taxes (including any
attached schedules) including, without limitation, any information return,
claim for refund, amended return and declaration of estimated Tax.
"Transferring Employee" means any Deemed Transferring Employee or any
Seller Employee who accepts the Buyer's offer of employment under Section
9.2(c).
ARTICLE 2.
PURCHASE AND SALE
2.1. Purchased Assets
----------------
Upon the terms and subject to the conditions of this Agreement, on the
Closing Date, Seller shall sell, transfer, assign, convey and deliver to
Buyer, and Buyer shall purchase from Seller, all of the rights, assets and
properties of Seller of every kind and description used in, consumed by or
otherwise relating exclusively to the Business, wherever located, real,
personal or mixed, tangible or intangible as such assets shall exist on the
Closing Date, including such assets reflected in the Final Closing Date
Balance Sheet, but excluding the Excluded Assets (herein collectively
called the "Purchased Assets"). The Purchased Assets shall include,
without limitation, all of the Seller's right, title and interest in and
to:
(a) Real Property. Subject to Section 7.2(b), all interest in the Leased
-------------
Real Property (if any) occupied by Seller exclusively in relation to
the Business, including all fixtures attached thereto;
(b) Machinery and Equipment. All machinery and equipment, including
-----------------------
machines, data processing hardware and software, vehicles, furniture,
fixtures, capital expenditures in process, tools, dies, moulds, and
similar tangible personal property, and all interest in any such
personal property leased from third parties owned or used by the
Seller exclusively in relation to the Business, including
specifically, but without limitation, those items listed and described
in Schedule 5.10 and Schedule 5.11;
6
<PAGE>
(c) Inventory. All inventories owned by the Seller exclusively in relation
---------
to the Business consisting of raw materials, work in progress and
finished goods and supplies as the same may exist on the Closing Date,
including goods in transit and stock ordered by and paid for by the
Seller prior to the Closing Date but not received by the Closing Date;
(d) Receivables. All notes, trade and other accounts receivable owed to
-----------
the Seller exclusively in relation to the Business as the same may
exist on the Closing Date (the "Receivables");
(e) Proprietary Rights. All patents, patent applications, patent
------------------
disclosures and inventions; trademarks, service marks, logos, trade
dress, designs, trade names, business names and any applications to
register any of the foregoing; copyrights and copyright registrations,
trade secrets, know-how and confidential business information,
computer software, data or documentation, and other proprietary rights
or any licences to and from any Person with respect to any of the
foregoing developed by or for Seller exclusively in relation to the
Business or employed or utilized by the Seller exclusively in the
conduct of the Business, and all other intellectual, industrial,
proprietary information, rights and interests (including common law
rights and interests) employed or utilized by the Seller exclusively
in the conduct of the Business including, without limitation, those
items listed in Schedule 5.13(A) (the "Intellectual Property");
(f) Executory Agreements. The rights of Seller to the extent such rights
--------------------
relate exclusively to the Business under any executory agreement to
which Seller is a party in relation to the Business (excluding any
agreement giving rise to an Excluded Liability) including, without
limitation, those listed or described on Schedule 5.16(A), and the
following, if any: any distribution agreement, licence agreement,
promissory note, guarantee, loan agreement, security agreement,
indemnity agreement, subordination agreement, indenture, mortgage,
lease (whether or not capitalized and including, without limitation,
those listed in Schedule 5.11), conditional sale or title retention
agreement, any purchase order or contract with any customer or
supplier of Seller relating exclusively to the Business to the extent
that such purchase order or contract is not fulfilled by Seller on the
Closing Date;
(g) Certain Rights of Seller. All claims, rights and causes of action of
------------------------
Seller against third Persons relating exclusively to the Business,
including without limitation, the proceeding by Seller against JRC
Tenaga Sdn Bhd in the Johor Bahru Sessions Court, and including
claims, rights and causes of action against third Persons arising
under warranties from vendors and others;
(h) Books and Records. Except as specified in Section 2.2(g), all Seller's
-----------------
books and records relating exclusively to the Business (including all
data and other information stored on discs, hard drives, tapes or
other media) including, without limitation, employee records and
copies of those books and records, to the extent they relate to
7
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the Business, except for those books and records which the Seller is
required by law to retain;
(i) Government Permits. All Governmental Permits held by the Seller in
------------------
relation to the Business, including those listed in Schedule 5.12(A)
or Schedule 5.18(B); and
(j) Other Assets. All other rights, assets and properties of Seller
------------
relating exclusively to the Business, except for Excluded Assets,
whether real, personal, tangible, intangible or mixed, including
books, records and files (including all personnel files), any prepaid
expenses, and any utility deposits, all except as specifically
excluded in Section 2.2.
2.2. Excluded Assets
---------------
Notwithstanding the provisions of Section 2.1, the Purchased Assets shall
not include the following (herein referred to as the "Excluded Assets"):
(a) Cash. All cash, cash equivalents, bank accounts, certificates of
----
deposit, investment securities, commercial paper and any other
marketable securities or similar investments of Seller;
(b) Corporate Records. All corporate minute books and stock transfer books
-----------------
and the corporate seals of Seller;
(c) Taxes. All refunds of any Taxes paid by the Seller, and all Tax
-----
records and Tax Returns with respect to periods ending on or before
the Closing Date, and all claims for Taxes paid by the Seller;
(d) Certain Rights of Seller. All agreements and all claims, rights and
------------------------
causes of action relating to Excluded Assets or relating to
liabilities and obligations not included in Assumed Liabilities;
(e) Intercompany Loans. Any liabilities or obligations owing to Seller by
------------------
any Affiliate of Seller that are not effectively eliminated by means
of intercompany adjustments effected in connection with the
preparation of the Final Closing Balance Sheet and the audit performed
in connection therewith;
(f) Insurance. All business insurance policies of Seller and all rights
---------
thereunder; and
(g) Books and Records. All books and records relating to any of the
-----------------
foregoing and originals of all other books and records which the
Seller is required by law to retain.
2.3. Assumed Liabilities
-------------------
On and from the Closing Date, Buyer shall assume and agree to discharge and
shall keep
8
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the Seller indemnified against the following obligations and liabilities of
Seller relating to the Business:
(a) Ordinary Course Liabilities. The current liabilities of Seller
---------------------------
relating to the Business or the Purchased Assets as of the Closing
Date to the extent provided for in the Final Closing Date Balance
Sheet;
(b) Executory Contracts. Liabilities, obligations, and commitments of
-------------------
Seller arising under the Seller Agreements, and all other contracts,
agreements, or commitments entered into in the ordinary course of
business to which Seller is a party in relation to the Business or by
which it or any of the Purchased Assets is bound that is not required
to be set forth on any Schedule to this Agreement;
(c) Sales Orders. All liabilities, obligations and commitments with
------------
respect to sales orders placed with Seller in the ordinary course of
business of the Business to the extent such orders have not been
fulfilled as of the Closing Date;
(d) Product Warranties. All obligations of Seller pursuant to product or
------------------
service guarantees or warranties (whether express or implied) or under
Seller's product return policies given in the ordinary course of
business of the Business by Seller including, without limitation, all
liabilities and obligations for product returns (regardless of whether
such products were sold before or after the Closing Date);
(e) Employees. Employee Leave Benefits and other entitlements due post
---------
Closing;
(f) Actions. Liabilities arising from the Actions referenced in the
-------
Disclosure Schedules and Expenses relating to such Actions; and
(g) Environmental Liabilities. All costs and liabilities of whatever
-------------------------
nature arising from or relating to matters disclosed in Schedule 5.18
of the Disclosure Schedules.
All of the foregoing liabilities and obligations to be assumed by Buyer
hereunder are referred to herein as the "Assumed Liabilities".
2.4. Excluded Liabilities
--------------------
Buyer shall not assume or be obligated to pay, perform or otherwise
discharge any liabilities or obligations of Seller other than the Assumed
Liabilities (all such liabilities and obligations not being assumed being
herein called the "Excluded Liabilities"). The Excluded Liabilities
include:
(a) Taxes. Any Taxes levied against Seller on or prior to the Closing Date
-----
or subsequent to the Closing Date but relating to periods ending on or
prior to the Closing Date, but only insofar as such Taxes have not
been reflected or reserved against in the Final Closing Date Balance
Sheet;
9
<PAGE>
(b) Intercompany Loans. Any liabilities or obligations owing to any
------------------
Affiliate of Seller that are not effectively eliminated by means of
intercompany adjustments effected in connection with the preparation
of the Final Closing Date Balance Sheet and the audit performed in
connection therewith; and
(c) Excluded Assets. Liabilities or obligations in respect of Excluded
---------------
Assets.
2.5. Coordinating Agreement
----------------------
The parties agree that nothing in this Agreement is intended to exclude, or
reduce the operation or effect of, the indemnities and limitations
contained in Article 4 of the Coordinating Agreement.
2.6. Ownership and Risk
------------------
Until Closing, the Seller remains the owner of and bears all risks in
connection with the Business and Purchased Assets and Assumed Liabilities.
On Closing, property in and risk of the Business and the Purchased Assets
and Assumed Liabilities passes to the Buyer.
2.7. Taxes
-----
On and from the Closing Date, Buyer agrees to discharge, in accordance with
Section 9.1(b), and shall keep the Seller indemnified against all current
liabilities for Taxes to the extent reflected or reserved against in the
Final Closing Date Balance Sheet.
2.8. Defence of Actions
------------------
In relation to each of the Actions referred to in Section 2.3(f), the
Seller must, using resources provided by the Buyer and subject to it being
indemnified by the Buyer against all costs, claims, liabilities and
expenses suffered or incurred by the Seller:
(a) use its best endeavours to conduct the Action in all respects in
accordance with the lawful and proper instructions and directions of
the Buyer and must promptly take all lawful and proper action
(including execution, lodgment and service of documents and
correspondence) required by the Buyer to avoid, defend, compromise or
settle the Action;
(b) not do any act other than as instructed or directed by the Buyer; and
(c) provide the Buyer and its representatives and advisors at all times
with full and free access (with the right to take copies) of all
documents and correspondence relevant to the Action.
10
<PAGE>
ARTICLE 3.
PURCHASE PRICE
3.1. Purchase Price
--------------
The purchase price (the "Purchase Price") shall be equal to One Million
Nine Hundred Thirty Four Thousand United States dollars (US$1,934,000)
(subject to the adjustments provided for in the Coordinating Agreement).
At the Closing, Buyer shall pay the Purchase Price to Seller by wire
transfer of immediately available funds to such bank account as Seller
shall direct in writing. After Closing, the Purchase Price shall be
adjusted pursuant to the Coordinating Agreement.
3.2. Allocation of Purchase Price and Assumed Liabilities
----------------------------------------------------
The Purchase Price and the value of the Assumed Liabilities shall be
allocated among the Purchased Assets as set forth in Exhibit A, attached
---------
hereto (subject to the adjustments provided for in the Coordinating
Agreement). The parties agree that the allocation set forth on Exhibit A,
----------
as amended and re-issued pursuant to the Coordinating Agreement will be
used by them and respected for all purposes, including income tax purposes,
and that the parties shall follow such allocation for all reporting
purposes.
ARTICLE 4.
CLOSING
4.1. Closing
-------
The closing of the purchase and sale of the Purchased Assets (the
"Closing") shall be consummated at 10:00 a.m. Chicago time on the last
business day of the month in which the last of the conditions specified in
Article 8 is satisfied or waived, at the offices of Gardner, Carton &
Douglas at 321 North Clark Street, in Chicago, Illinois, or at such other
time or place as shall be agreed upon by Buyer and Seller. Notwithstanding
the foregoing, if the date upon which the last of the conditions specified
in Article 8 is satisfied or waived is 5 (or fewer) Business Days before
the last day of the month, then the Closing shall be consummated on the
fifth (5/th/) Business Day following the date on which the last of such
conditions were satisfied or waived, or such other date as may be agreed
upon by Buyer and Seller. The time and date on which the Closing is
actually held is referred to herein as the "Closing Date". The Closing
shall be effective as of the close of business on the Closing Date.
4.2. Documents to be delivered to Buyer
----------------------------------
At the Closing, Seller shall deliver or cause to be delivered to Buyer:
(a) a certificate of Seller in a form reasonably satisfactory to Buyer
certifying as to the accuracy of the Seller's representations and
warranties at and as of the Closing and
11
<PAGE>
that Seller has performed and complied with all of the terms,
provisions and conditions to be performed and complied with by Seller
at or before the Closing;
(b) a certificate of the secretary or an assistant secretary of Seller in
a form reasonably satisfactory to Buyer dated the Closing Date,
certifying as to: (i) Seller's Memorandum and Articles of Association;
(ii) the resolutions of Seller's board of directors authorizing the
execution and performance of this Agreement and the transactions
contemplated hereby; and (iii) incumbency and signatures of the
officers executing this Agreement and any Seller Ancillary Agreement;
(c) transfer of ownership and registration forms for any vehicles and any
documents necessary to transfer title to other equipment included in
the Purchased Assets;
(d) all Material Consents (it being expressly understood that Seller shall
have no obligation to deliver to Buyer any consents other than the
Material Consents) and all assignments of other agreements which have
been obtained by the Closing Date provided always that it is agreed
that any foreign exchange hedging contracts and letters of credit are
not to be transferred to the Buyer which must make its own arrangement
in respect of the matters concerned with effect from Closing;
(e) documentation sufficient to convey by transfer or licence Intellectual
Property to Buyer from Seller and its Affiliates (the "Intellectual
Property Transfer/Licence Documents");
(f) the relevant prescribed form (Form D) notifying the Registry of
Businesses of the change of the proprietor(s) for all business names
included in the Purchased Assets;
(g) subject to Section 7.2, all necessary documents of title, transfer
documents (including registerable transfers, deeds of discharge of
Encumbrances and deeds of assignment, as the case may be), licences
and any other documents that may be necessary to transfer ownership of
the Business, the Purchased Assets and the Assumed Liabilities to
Buyer or to permit Buyer to continue to operate the Business
uninterrupted after the Closing;
(h) those of the Purchased Assets capable of transfer by delivery, the
title to which shall pass to the Buyer on delivery;
(i) originals or counterparts of all written agreements referred to in
Section 2.1(f) and other documents connected with the Business;
(j) all of the books, records, files and other relevant information
including all electronically stored information and documents relating
to the Business, the Purchased Assets and the Assumed Liabilities
including lists of customers, suppliers, employees, agents and
distributors; and
12
<PAGE>
(k) such other certificates and documents as Buyer or its counsel may
reasonably request to effect a transfer of the Purchased Assets.
4.3. Documents to be Delivered to Seller
-----------------------------------
At the Closing, Buyer shall, in addition to the payment under Section 3.1
above, deliver to Seller:
(a) a certificate of Buyer in a form reasonably satisfactory to Seller
certifying as to the accuracy of the Buyer's representations and
warranties at and as of the Closing and that Buyer has performed and
complied with all of the terms, provisions and conditions to be
performed and complied with by Buyer at or before the Closing;
(b) a certificate of the secretary or an assistant secretary of Buyer in a
form reasonably satisfactory to Seller, dated the Closing Date,
certifying as to: (i) Buyer's Memorandum and Articles of Association;
(ii) the resolutions of Buyer's board of directors authorizing the
execution and performance of this Agreement and the transactions
contemplated hereby; and (iii) incumbency and signatures of the
officers executing this Agreement and any Buyer Ancillary Agreement;
and
(c) such other certificates and documents as Seller or its counsel may
reasonably request to effect closing of this transaction.
4.4. Form of Documents
-----------------
The documents and instruments referred to in Sections 4.2 and 4.3 shall be
satisfactory, as to form, to counsel for the party to whom they are
delivered.
ARTICLE 5.
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
5.1. Organization
------------
Seller is a corporation duly organized, validly existing and is duly
authorised under the laws of Singapore. Seller is not in violation of any
provision of its Memorandum and Articles of Association. Seller is duly
qualified or licensed to do business and is in good standing as a foreign
corporation in each of the jurisdictions specified in Schedule 5.1. Seller
is not required in relation to the Business to be qualified or licensed to
do business as a foreign corporation in any jurisdiction other than those
specified in Schedule 5.1, except for those jurisdictions where the failure
to so qualify is not likely to have a Material Adverse Effect or hinder or
impair the ability of Seller to consummate the transactions contemplated by
this Agreement or the Seller Ancillary Agreements.
13
<PAGE>
5.2. Power and Authority; Agreement Binding
--------------------------------------
Seller has all requisite corporate power and authority to execute and
deliver this Agreement and the Seller Ancillary Agreements and to perform
its obligations hereunder and thereunder, to own or hold under lease its
properties and assets, to carry on the Business as currently conducted, and
to operate the properties and assets now being operated by it in relation
to the Business. Seller's execution of this Agreement has been duly
authorized and approved by all necessary corporate action. This Agreement
has been, and the Seller Ancillary Agreements will be, duly executed and
delivered by Seller and, assuming due authorization, execution, and
delivery by Buyer, is and will be the legal, valid and binding obligation
of Seller enforceable against Seller in accordance with its terms, subject
to general principles of equity and except as enforceability may be limited
by applicable bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium or other similar laws of general application relating to
creditors' rights generally.
5.3. Absence of Conflicts
--------------------
Except as set forth in Schedule 5.3, the execution, delivery and
performance of this Agreement and the Seller Ancillary Agreements, and the
consummation of the transactions contemplated hereby and thereby, will not:
(a) conflict with, result in a breach of the terms, conditions or
provisions of, or constitute a default, an event of default or an
event creating rights of acceleration, termination or cancellation, or
result in the creation or imposition or crystallisation of any
Encumbrance upon the Purchased Assets or Assumed Liabilities under:
(i) any note, instrument, contract, agreement, mortgage, indenture,
lease, licence or franchise to which Seller or any Affiliate of Seller
is a party or by which it or any of the assets is bound; (ii) any
Court Order; or (iii) any Requirements of Law; except for any of the
foregoing which, individually or in the aggregate, is or are not
likely to have a Material Adverse Effect or hinder or impair the
consummation of the transactions contemplated hereby or by the Seller
Ancillary Agreements; or
(b) require the approval, consent, authorization or act of, or the making
by Seller of any declaration, notification, filing or registration
with any Person, except as contemplated in Section 7.2 and otherwise,
except for any of the foregoing which, individually or in the
aggregate, is or are not likely to have a Material Adverse Effect or
materially hinder or impair the consummation of the transactions
contemplated hereby and thereby.
5.4. No Litigation
-------------
Except as set forth in Schedule 5.4, there is no Action pending or, to the
Knowledge of the Seller, threatened against Seller in relation to the
Business and there has not been, to the Knowledge of the Seller, any claim
asserted by any person that could lead to an Action.
14
<PAGE>
The Seller is not, in relation to the Business, subject to any currently
pending Court Order. Except as set forth in Schedule 5.4, to the Knowledge
of the Seller, there is no Action pending or threatened against any officer
or director of Seller arising out of his or her service in connection with
the Business.
5.5. No Violation
------------
Except as set forth in Schedule 5.5, Seller has complied and is in
compliance with all Court Orders and Requirements of Law which are
applicable to Seller in relation to the Business, except for such
Requirements of Law as to which noncompliance is not likely to have a
Material Adverse Effect.
5.6. Operations Since June 30, 1999
------------------------------
(a) Except as set forth in Schedule 5.6(A), or except as reflected in the
March 31, 2000 Balance Sheet since June 30, 1999, there has been no
material adverse change in the Business or Purchased Assets or Assumed
Liabilities, taken as a whole. The termination of any Intercompany
Agreement not listed on Schedule 7.4 will not have a Material Adverse
Effect.
(b) Except as set forth in Schedule 5.6(B), or except as reflected in the
March 31, 2000 Balance Sheet, since June 30, 1999, Seller has
conducted the Business only in the ordinary course. Specifically,
since June 30, 1999, except as set forth in Schedule 5.6(B), Seller
has not in relation to the Business:
(i) made any material change in operations;
(ii) made any capital expenditure or entered into any contract or
commitment therefor in excess of the capital expenditures
disclosed in the "Fiscal Year 2000 Open Sanction Summary"
attached to Schedule 5.7(B) to the Principal US Agreement;
(iii) sold, leased (as lessor), transferred or otherwise disposed of,
or imposed or suffered to be imposed any Encumbrance on, any of
the Purchased Assets, except for inventory and other personal
property sold, leased or otherwise disposed of for fair value
in the ordinary course of business consistent with past
practice and except for Permitted Encumbrances;
(iv) cancelled any debts owed to or claims held (including the
settlement of any Action) other than in the ordinary course of
business consistent with past practice;
(v) created, incurred or assumed, or agreed to create, incur or
assume, any indebtedness for borrowed money or entered into, as
lessee, any finance lease obligations or guaranteed any such
indebtedness or leases of others or
15
<PAGE>
made any loans other than in the ordinary course of business
consistent with past practice;
(vi) written off as uncollectible or accelerated or delayed
collection of notes or accounts receivable in advance of or
beyond their regular due dates or the dates when the same would
have been collected other than in the ordinary course of
business consistent with past practice;
(vii) delayed or accelerated payment of any accounts payable or other
liabilities of Seller beyond or in advance of their due date or
the date when such liabilities would have been paid other than
in the ordinary course of business consistent with past
practice;
(viii) made any increase in the current wages, bonuses and benefits of
its employees (other than any increases made in the ordinary
course of business consistent with past practice);
(ix) entered into or, except as set forth in Schedule 5.14(A),
amended any employment, severance or similar agreement or
arrangement or made any increases in the current wages, bonuses
and benefits of its employees (other than any increases made in
the ordinary course of business consistent with past practice);
(x) waived any rights or settled any claims, except for such
waivers or settlements granted or entered into in the ordinary
course of business;
(xi) made any change in any method of accounting;
(xii) suffered or incurred any damage, destruction, fire, explosion,
accident, flood or other casualty, loss or act of God (whether
or not covered by insurance) to any material operating asset or
group of operating assets;
(xiii) entered into or amended any purchase or sale contract outside
the ordinary course of business;
(xiv) suffered any amendment, termination, suspension or revocation
of any Governmental Permit;
(xv) joined any new or amended or modified any already existing
superannuation fund applicable to the Employees;
(xvi) amended its memorandum or articles of association;
(xvii) manufactured inventory in excess of its expected need; or
16
<PAGE>
(xviii) where applicable, agreed to do any of the foregoing.
5.7. Taxes
-----
Except as set forth in Schedule 5.7:
(a) Seller has accurately prepared and timely filed (including all
extensions) all Tax Returns to the extent they relate to the Business.
(b) All such Tax Returns have been prepared in compliance with applicable
Requirements of Law, to the extent they relate to the Business, are
true and correct and properly reflect the Taxes due for the periods
covered thereby.
(c) All Taxes due and payable by Seller have been properly paid.
(d) Seller has not in relation to the Business waived any law or
regulation fixing, or consented to the extension of, any period of
time for assessment of any Taxes which waiver or consent is currently
in effect nor requested or been granted an extension of time for
filing any Tax Return which has not yet been filed.
(e) There are no material elections, consents or agreements in relation to
the Business with tax authorities other than those reflected on tax
forms filed with tax authorities.
5.8. Title to Assets
---------------
Seller is the exclusive and absolute owner and has good title to or a valid
leasehold interest in, all of the personal property included in the
Purchased Assets free and clear of all Encumbrances, except for: (a)
Permitted Encumbrances; (b) the lien of current taxes not yet due and
payable, and (c) other exceptions disclosed in Schedule 5.8. Except as
disclosed in Schedule 5.8, the personal property included in the Purchased
Assets is usable in the ordinary course of business of the Business and
conforms to all Requirements of Law relating to its construction, use and
operation, except where such nonconformity is not likely to have a Material
Adverse Effect.
5.9. Real Property
-------------
(a) Schedule 5.9 sets forth a complete and accurate list including a brief
description of the material terms of all material leases, subleases or
similar agreements providing for the use of real property under which
Seller is lessee of, or holds or operates, any real property owned by
any third Person (the "Leased Real Property" and used in connection
with the Business).
(b) The occupation, possession and use of the Leased Real Property by
Seller has not been disturbed and, to the Knowledge of the Seller, no
claim has been asserted or
17
<PAGE>
threatened which is adverse to the rights of Seller to the continued
occupation, possession and use of the Leased Real Property, as
currently utilized.
5.10. Personal Property
-----------------
Schedule 5.10 contains a list of all machinery, equipment and vehicles
owned by Seller in relation to the Business having an original cost of
S$173,000.
5.11. Personal Property Leases
------------------------
Schedule 5.11 contains a brief description of each lease or other
agreement or right, whether written or oral (including in each case the
annual rental, the expiration date thereof and a brief description of the
property covered) under which Seller is lessee of, or holds or operates,
any machinery, equipment or vehicle owned by a third Person and used in
connection with the Business, except those which are terminable by Seller
without cost or penalty on 30 days' or less notice or which provide for
annual rentals of less than S$173,000.
5.12. Governmental Permits
--------------------
(a) Except as disclosed in Schedule 5.12(A), Seller owns, holds or
possesses all material licenses, certificates, franchises, permits,
privileges, immunities, approvals and other authorizations from a
Governmental Body which are necessary to entitle them to own or
lease, operate and use their assets and conduct the Business
substantially as currently operated (herein collectively called
"Governmental Permits"). Notwithstanding the foregoing, Governmental
Permits required under Environmental Laws are addressed solely in
Schedule 5.18(B).
(b) Except as set forth in Schedule 5.12(B):
(i) Seller has fulfilled and performed its obligations under each of
the Governmental Permits, except for such nonfulfillment or
nonperformance which is not likely to have a Material Adverse
Effect; and
(ii) no written notice of cancellation, revocation, suspension or
default or of any dispute concerning any Governmental Permit has
been received by Seller and, to the Knowledge of the Seller,
there is no basis for the issuance of such notice except as a
result of the consummation of the transactions contemplated
hereby or except as is not likely to have a Material Adverse
Effect.
5.13. Intellectual Property
---------------------
(a) Except as set forth on Schedule 5.13(A), there are no material
patents, patent applications, trademarks or trademark registrations,
service marks or service mark
18
<PAGE>
registrations, trade names, Internet domain names, business names, or
any applications to register any of the foregoing, copyrights or
copyright registrations, licences to or from any Person with respect
to any of the foregoing, used by Seller in the Business substantially
as currently conducted.
(b) Each item constituting part of the Intellectual Property has been, to
the extent indicated in Schedule 5.13(A), duly registered, filed or
issued, as the case may be, as is indicated in Schedule 5.13(A), and
such registrations, filings and issuances remain in full force and
effect.
(c) Except as set forth on Schedule 5.13(B), Seller owns and possesses
all right, title and interest in and to the Intellectual Property,
and has not received written notice of any claim by any Person
contesting the validity, enforceability, use, or ownership of any
Intellectual Property patent disclosures or inventions or asserting
that the Seller is infringing the intellectual property rights of
others. Schedule 5.13(C) sets forth all technology (including
Intellectual Property) owned by third parties and used by Seller in
the Business. To the Knowledge of the Seller, except as set forth in
Schedule 5.13(B), no Person is infringing the rights of the Seller
with respect to any Intellectual Property. Seller uses all reasonable
efforts to protect its trade secrets relating to the Business.
5.14. Employees
---------
(a) Excepted as described in Schedule 5.14(A), Seller is not a party to
or bound by any collective bargaining agreement, employment
agreement, severance agreement, consulting, independent contractor or
service agreement, deferred compensation agreement, confidentiality
agreement or covenant not to compete which is material to the
Business.
(b) Except as set forth in Schedule 5.14(B): In connection with the
Business (i) Seller is in compliance with all applicable Requirements
of Law with respect to employment, employment practices, terms and
conditions of employment and wages, overtime pay, and hours, except
for such noncompliance as is not likely to have a Material Adverse
Effect; (ii) Seller has not engaged in any unfair labor practice or
illegally discriminated with regard to any aspect of employment on
the basis of any legally prohibited category or classification; and
(iii) with respect to employees and former employees who rendered
services to, or participated in conduct or activities in connection
with Seller, Seller is not liable for any arrears of wages, salaries
or other payments.
5.15. Central Provident Fund Contributions
------------------------------------
Seller has made all the required statutory contributions under the Central
Provident Fund Act, Chapter 36 of Singapore.
19
<PAGE>
5.16. Contracts
---------
Except as set forth in Schedule 5.16(A), in connection with the Business,
Seller is not a party to or bound by:
(a) any consignment, distributor, dealer, manufacturer's representative,
sales agency, advertising representative or advertising or public
relations contract, agreement or commitment which is reasonably
anticipated by Seller to involve the payment of more than S$173,000
during Seller's current fiscal year;
(b) any contract, agreement or commitment regarding the sale or other
disposition of products or services by Seller or for the purchase of
raw materials, products or services by Seller which is reasonably
anticipated by Seller to involve the receipt or payment of more than
S$173,000 during Seller's current fiscal year;
(c) any guarantee or indemnification agreement for the benefit of any
Person made or given outside of the ordinary course of business;
(d) any contract, agreement or commitment which provides for the
incurrence by Seller of indebtedness for borrowed money;
(e) any partnership or joint venture agreement;
(f) any agreement, contract or commitment relating to capital
expenditures of an amount or value in excess of S$173,000 in relation
to the Business;
(g) any agreement that restricts or purports to restrict the business
activities of Seller or limits Seller's ability to engage in any line
of business or compete with any Person in relation to the Business;
(h) any material license of software or other intellectual property; or
(i) any agreement in relation to the Business that was not entered into
in the ordinary course of the business of the Business consistent
with past practice and that involved annual payments in excess of
S$173,000.
5.17. Status of Contracts
-------------------
Except as set forth in Schedule 5.17 or in any other Schedule hereto: (a)
each of the leases, contracts and other agreements of Seller listed in
Schedules 5.9, 5.11, 5.13, 5.14 and 5.16 (collectively, the "Seller
Agreements") constitutes a legal, valid and binding obligation of Seller
(subject to bankruptcy, insolvency, reorganization, moratorium and similar
laws of general application relating to or affecting creditors' rights and
to general equity principles) and is in full force and effect; and (b)
Seller is not, or, to the Knowledge of the Seller, alleged to be, in
material breach of, or material default under, any of the Seller
Agreements
20
<PAGE>
nor, to the Knowledge of the Seller, is any other party thereto in such
breach or default and, to the Knowledge of the Seller, no event has
occurred which the notice or lapse of time would constitute such a breach
or default or permit termination, modification or acceleration of any of
the Seller Agreements.
5.18. Environmental Matters
---------------------
Notwithstanding any other provision of this Agreement, this Section 5.18
contains the only representations or warranties of Seller with respect to
Environmental Law or Environmental matters, and no other statement in this
Agreement, in any Seller Ancillary Agreement or in any other document or
information delivered or given to or received by or on behalf of Buyer in
connection with the transactions contemplated by this Agreement shall be
deemed to be a representation or warranty relating to Environmental Law or
Environmental matters.
(a) Except as set forth in Schedule 5.18(A), Seller is, in relation to
the Business, in compliance with all applicable Environmental Laws
except for such noncompliance as is not likely to have a Material
Adverse Effect.
(b) Except as set forth in Schedule 5.18(B), Seller owns, holds or
possesses all material Governmental Permits required under
Environmental Laws necessary for the occupation and use of the Leased
Real Property and the operation of the Business substantially as
currently conducted. All Governmental Permits required under
Environmental Laws that are currently owned, held or possessed by
Seller in relation to the Business are listed in Schedule 5.18(B).
Except as set forth in Schedule 5.18(B), Seller is in compliance and
has for the past three (3) years complied, with all Governmental
Permits except for such non-compliance as is not likely to have a
Material Adverse Effect. Seller shall make commercially reasonable
efforts to transfer or cause to be transferred to Buyer all such
Governmental Permits at the Closing Date including:
(i) giving notice to all regulatory agencies with respect to the
change in ownership or control or responsible officials at the
Leased Real Property;
(ii) completing and submitting notices of termination; and
(iii) to the extent not transferred by the Closing Date, shall co-
operate fully with Buyer in obtaining the transfer of such
Governmental Permits as promptly thereafter as possible.
(c) Except as set forth in Schedule 5.18(C), Seller is not, in relation
to the Business, subject to any pending or, to the Knowledge of the
Seller Regarding Environmental Matters, threatened investigation by,
order from, claim by, statutory request for information from, or
continuing agreement with any Person respecting; (i) any violation of
Environmental Law or Governmental Permits, (ii) any Remedial Action,
or (iii) any claim of Losses and Expenses in each case arising from
the Release or
21
<PAGE>
threatened Release of a Contaminant or the presence of any Contaminant
on, in, at or beneath the Leased Real Property or the migration of any
Contaminant onto or from the Leased Real Property.
(d) Except as set forth in Schedule 5.18(D), Seller is not, in relation to
the Business, subject to any pending or, to the Knowledge of the
Seller Regarding Environmental Matters, threatened judicial or
administrative investigation, proceeding, order, notice of violation,
judgment, decree or settlement with any continuing obligation alleging
or relating to a violation of or liability under any Environmental Law
or Governmental Permits.
(e) Except as set forth in Schedule 5.18(E):
(i) Seller has not, in relation to the Business, reported a Release
pursuant to an Environmental Law;
(ii) Seller has not, in relation to the Business, filed a notice
with respect to the Contamination of land or the generation of
hazardous wastes that is required to be filed pursuant to an
Environmental Law; or
(iii) to the Knowledge of the Seller Regarding Environmental Matters,
there has not been any disposal by Seller or Release of any
Contaminants on, at, in, or beneath the Leased Real Property.
(f) Except as set forth in Schedule 5.18(F), Seller has not received
----------------
written notice under any Environmental Law to the effect that it is or
may be liable to any Person as a result of the generation, storage,
transportation, Release, arrangement for disposal or disposal of any
Contaminants on, at or, in any Real Property.
(g) Except as set forth in Schedule 5.18(G), to the Knowledge of the
Seller Regarding Environmental Matters, there are no underground
storage tanks (whether active or abandoned) located at, in, or beneath
the Leased Real Property.
(h) Except as disclosed in the Schedules to Section 5.18, to the Knowledge
of the Seller Regarding Environmental Matters, as of the Closing Date,
there is no condition existing on the premises constituting the Leased
Real Property that will give rise to any liability of Seller under any
Environmental Laws.
(i) Seller has made available to Buyer true and correct copies of all
material environmental audits and consultant's reports relating to the
past and current operations, properties and facilities of the Seller
with respect to the Business, or any of their respective predecessors,
which are in its possession or under its reasonable control.
22
<PAGE>
(j) To the Knowledge of the Seller Regarding Environmental Matters, the
sites identified on Schedule 5.18(J) constitute, and as such Schedule
----------------
is updated by Seller from time to time in its sole discretion prior
to the Closing Date, will constitute all PRP Sites as of the Closing
Date.
(k) Notwithstanding any other provision of this Agreement, no
representations and warranties are made or shall be deemed to apply
to the PRP Sites.
5.19. Insurance
---------
Seller has, and at all times has had, valid insurance coverage in respect
of the Business against all risks normally insured against by persons in
the same industry, underwritten by one or more well-established and
reputable insurers or adequately capitalised Affiliates. Schedule 5.19
contains a list of all insurance policies (specifying (i) the insurer,
(ii) the amount of the coverage, (iii) the type of insurance, (iv) the
policy number and (v) any currently pending claims thereunder) maintained
by or on behalf of Seller in connection with the Business or the Purchased
Assets. Seller has not failed to give any notice or present any claim
under any insurance policy in due and timely fashion.
5.20. Product Warranties
------------------
All of Seller's unexpired, express product warranties with respect to any
product that it manufactures or sells in connection with the Business or
that it has heretofore manufactured or sold in connection with the
Business are set forth in Schedule 5.20. Seller has not received written
notice of any claim and to the knowledge of the Seller, there are no
threatened claims against the Seller in relation to the Business based on
any product warranty (except claims outstanding as of June 30, 1999, not
exceeding the local currency equivalent of U.S.$200,000.
5.21. No Advisor
----------
Neither Seller nor any Affiliate of Seller nor any Person acting on its or
their behalf has retained any advisor, broker, investment banker or
financial advisor in connection with this Agreement or any transaction
contemplated hereby for which the Buyer may be liable.
5.22. Accounts and Records
--------------------
All the accounts, books, ledgers and financial and other material records
of the Business have been maintained accurately and in accordance with
generally accepted accounting practices.
5.23. No Misrepresentation
--------------------
To the Knowledge of the Seller, the representations and warranties of
Seller contained in this Agreement, the Disclosure Schedules attached
hereto, and the certificates and other
23
<PAGE>
instruments delivered by Seller pursuant hereto, do not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements contained herein or therein not misleading.
5.24. Purchased Assets
----------------
The Purchased Assets comprise all of the assets now utilised by the Seller
which are necessary to enable the Business to be carried on immediately
after Closing in substantially the same manner as immediately before the
date of this Agreement.
5.25. Material Consents
-----------------
Except for the Material Consents, there are no other consents or approvals
required by the Seller to consummate this Agreement which if not obtained
would have a material and adverse effect on the ability of the Buyer to
conduct the Business immediately after Closing in substantially the same
manner as immediately before the date of this Agreement.
5.26. Powers of Attorney.
------------------
As of Closing, there will not be any outstanding powers of attorney
executed on behalf of Seller other than with respect to the filing of
taxes, customs and similar matters and intellectual property
registrations.
ARTICLE 6.
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Seller as follows:
6.1. Organization
------------
Buyer is a corporation duly organized, validly existing and is duly
authorised under the laws of Singapore. Buyer is not in violation of any
provision of its Memorandum and Articles of Association. Buyer is duly
qualified to do business and is in good standing as a foreign corporation
in each of the jurisdictions in which Buyer's operations require that it
qualify to transact business as a foreign corporation, except for those
jurisdictions where the failure to so qualify is not likely to have a
material adverse effect on Buyer's business or financial condition or the
ability of Buyer to lawfully consummate the transactions contemplated by
this Agreement in all material respects.
6.2. Power and Authority
-------------------
Buyer has the full corporate power and authority to execute and deliver
this Agreement and the Buyer Ancillary Agreements, to perform its
obligations hereunder and thereunder, and to own and lease its property
and conduct its operation as currently conducted. Buyer's
24
<PAGE>
execution, delivery and performance of this Agreement has been duly
authorized and approved by all necessary corporate action.
6.3. Agreement Binding
-----------------
This Agreement and the Buyer Ancillary Agreements have been duly
executed and delivered by Buyer, and, assuming due authorization,
execution and delivery by Seller, is and will be the legal, valid and
binding obligation of Buyer enforceable in accordance with their
respective terms, subject to general principles of equity and except as
enforceability may be limited by applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium or other similar laws of
general application relating to creditor's rights generally.
6.4. Absence of Conflicts
--------------------
The execution and delivery of this Agreement and the Buyer Ancillary
Agreements and the consummation of the transactions contemplated hereby
will not:
(a) conflict with, result in a breach of the terms, conditions or
provisions of, or constitute a default, an event of default or an
event creating rights of acceleration, termination or
cancellation, or result in the creation or imposition of any
Encumbrance under: (i) any term or provision of the Memorandum
and Articles of Association of Buyer, (ii) any note, instrument,
contract, agreement, mortgage, indenture, lease, license or
franchise to which Buyer is a party of by which it is bound,
(iii) any Court Order, or (iv) any Requirements of Law; except in
each case, for any of the foregoing which, individually or in the
aggregate, is or are not likely to have a material adverse effect
on Buyer or its business taken as a whole or hinder or impair the
consummation of the transactions contemplated hereby; or
(b) require the approval, consent, authorization or act of, or the
making by Buyer of any declaration, notification, filing or
registration with, any Person, except in each case, for any of
the foregoing which, individually or in the aggregate, is or are
not likely to have a material adverse effect on Buyer or its
business taken as a whole or materially hinder or impair the
consummation of the transactions contemplated hereby.
6.5. No Litigation
-------------
There is no Action pending or, to the Knowledge of Buyer, threatened
which questions the legality or propriety of the transactions
contemplated by this Agreement or the Buyer Ancillary Agreements or
which would impair the consummation of the transactions contemplated
hereby and there has not been to the Knowledge of Buyer, any claim
asserted by any Person that could lead to such an Action.
25
<PAGE>
6.6. No Advisor
----------
Neither Buyer nor any Person acting on its behalf has retained any
advisor, broker, investment banker or financial advisor in connection
with this Agreement or any transaction contemplated hereby for which
Seller may be liable.
6.7. No Misrepresentation
--------------------
To the knowledge of Buyer, the representations and warranties of Buyer
contained in this Agreement and the certificates and other instruments
delivered by Buyer pursuant hereto do not include any untrue statement
of a material fact or omit to state a material fact necessary in order
to make the statements made not misleading.
ARTICLE 7.
ACTION PRIOR TO THE CLOSING DATE
Buyer and Seller covenant and agree to take the following actions between the
date hereof and the Closing Date:
7.1. Preserve Accuracy of Representations and Warranties
---------------------------------------------------
Buyer and Seller shall refrain from taking any action that would render
any representation or warranty contained in this Agreement inaccurate as
of the Closing Date. Buyer and Seller shall promptly notify the other of
any Action, investigation or other proceeding, that shall be instituted
or threatened against such party to restrain, prohibit or otherwise
challenge the legality of any transaction contemplated by this
Agreement.
7.2. Consents of Third Parties, Governmental Approvals
-------------------------------------------------
(a) Seller and Buyer shall act diligently and reasonably to secure,
before the Closing Date, the Material Consents and the consent,
approval or waiver from any party to any Seller Agreement required
to be obtained in contemplation or as a result of the transactions
contemplated hereby to secure for Buyer the Seller's rights
thereunder. Buyer shall cooperate with Seller in securing such
consents, approvals and waivers.
(b) During the period prior to the Closing Date, Seller and Buyer shall
act diligently and reasonably, and shall cooperate with each other,
to secure (i) any consents and approvals of any Governmental Body
required to be obtained in order to effect the consummation of the
transactions contemplated by this Agreement; (ii) the transfer or
grant to Buyer of all Governmental Permits required to allow Buyer
to conduct the Business; and (iii) in respect of the Leased Real
Property situate at and known as No. 6 Loyang Way #O2-02, the
consent in writing from the landlord of the Leased Real Property
(the "Landlord") and all other necessary consents (including but
not
26
<PAGE>
limited to the consent in writing of the Jurong Town Corporation
(collectively the "Lease Consents") to:
(aa) the creation of a new lease ("Buyer's New Lease") to be
entered into directly between Buyer and Landlord in respect
of such part of the Leased Real Property currently occupied
by Seller for the purpose of the Business ("Buyer's Required
Space") with an estimated floor area of 1390 square metres
as marked "GNB" on the plan attached in Schedule 7.2(b)(1)
hereto, the terms of Buyer's New Lease to be the same as the
terms of the Seller's existing lease of the Leased Real
Property dated 30 August 1996 ("Seller's Existing Lease")
save for (i) rental and outgoings which shall reflect the
rate of rental and outgoings as presently payable under the
Seller's Existing Lease pro-rated in respect of the Buyer's
Required Space and (ii) the term of the Buyer's New Lease
which shall commence on the Closing Date and shall terminate
on the same expiry date as the term under the Seller's
Existing Lease; and
(bb) creation of a new lease ("Seller's New Lease") to be entered
into directly between Seller and Landlord in respect of such
part of the Leased Real Property currently occupied by
Seller for the purpose of other businesses) of Seller (other
than the Business) with an estimated floor area of 110
square metres as marked "PACIFIC DUNLOP" on the plan
attached in Schedule 7.2(b)(1) hereto, the terms of Seller's
New Lease to be the same as the terms of the Seller's lease
of the Leased Real Property (save for rental and outgoings
which shall reflect the rate of rental and outgoings as
presently payable under that lease less the rental and
outgoings in respect of the Buyer's Required Space).
(c) Save for the Lease Consents to which Section 7.2(d) below applies,
to the extent that any of the consents, approvals or waivers
referred to in Section 7.2(a) or (b) have not been obtained as of
the Closing Date then, upon request by Buyer, for a period of
ending on March 31, 2001, Seller shall use its best efforts, with
Buyer reimbursing Seller for its out-of-pocket expenses and
indemnifying and holding harmless Seller for any liabilities or
obligations incurred by it, to:
(i) hold the benefit of the Seller Agreement and any other
consents, approvals or waivers in question for the benefit of
the Buyer and fully cooperate with Buyer in any reasonable and
lawful arrangements (including any arrangements to subcontract
the relevant Seller Agreement to Buyer) designed to provide
for Buyer the benefit of the relevant Seller Agreement and any
other consents, approvals or waivers; and
(ii) fully cooperate with Buyer in enforcing any and all rights of
Seller arising under the relevant Seller Agreement and any
other consents, approvals or waivers.
27
<PAGE>
If, after the above referenced period ending on March 31, 2001, any
consents, approvals or waivers have not been obtained, Buyer and
Seller will cooperate in any commercial reasonable arrangement to
obviate the need for such consent, approval or waiver, all at
Buyer's expense.
(d) To the extent that the Lease Consents are not obtained as of the
Closing Date, the Seller shall, pending receipt of the Lease
Consents make the Buyer's Required Space available to the Buyer for
the purpose of operating the Business as from the Closing Date,
subject to payment by Buyer of the amount of rent and other
outgoings for the period occupied by Buyer which is attributable to
Buyer's Required Space.
If by the date falling 6 months after the Closing Date (the "Lease
Consents Cut Off Date"), the Lease Consents have not been obtained
or have been refused, the Buyer may, at its sole discretion (where
the Lease Consents have not been obtained by the Lease Consents Cut
Off Date) and shall (where the Lease Consents have been refused on
or before the Lease Consents Cut Off Date) within a reasonable
period of time from the Lease Consents Cut Off Date or the receipt
of notice by the Buyer of the refusal whichever is later (as the
case may be) relocate to alternative premises in size and condition
similar to the Leased Real Property and location similar to the
Leased Real Property ("Alternative Premises").
The Seller shall reimburse the Buyer for an amount equal to the
excess (if any) of the rental and other outgoings (taken as a
whole) payable with respect to the Alternative Premises over the
rental and other outgoings payable with respect to the Buyer's
Required Space, but only for the period from the date of
commencement of the lease of the Alternative Premises until the
date of expiry of the Seller's Lease of the Leased Real Property.
7.3. Operations Prior to the Closing Date
------------------------------------
(a) During the period prior to the Closing Date, Seller shall conduct
the Business only in the ordinary course and substantially as
operated prior to the date hereof
(b) Notwithstanding Section 7.3(a), except as set forth in Schedule
7.3, as expressly contemplated by this Agreement, or with the
express prior written consent of Buyer, Seller shall not take any
of the actions set forth in Section 5.6(b); provided, however,
notwithstanding anything to the contrary herein, Seller will not
make and since May 9, 2000 has not made any capital expenditure in
excess of the local currency equivalent of US$250,000 (other than
as permitted by Section 7.3(b) of the Principal US Agreement)
without the prior written approval of Buyer.
28
<PAGE>
7.4. Intercompany Agreements
-----------------------
All of the Intercompany Agreements and intercompany accounts payable and
receivable, except for those set forth on Schedule 7.4, shall be
terminated or canceled at the Closing.
7.5. Notification of Changes
-----------------------
Each of Seller and Buyer shall promptly notify the other of any event
that causes any representation or warranty given by such party in
Articles 4, 5 and 6 to become untrue.
7.6. Changes to Employment Conditions
--------------------------------
Seller covenants with Buyer to ensure that the warranty in Section
5.6(b)(viii) will not be breached in any material respect between the
date of this Agreement and Closing.
7.7. General
-------
Each of the parties will use its reasonable best efforts to take all
action and to do all things necessary, proper, or advisable in order to
consummate and make effective the transactions contemplated by this
Agreement (including satisfaction, but not waiver, of the closing
conditions set forth below).
7.8. Preservation of Business
------------------------
Each of the parties shall use reasonable best efforts to keep their
businesses and properties substantially intact, including their present
operations, physical facilities, working conditions, and relationships
with lessors, licensors, suppliers, customers and employees.
ARTICLE 8.
CONDITIONS TO CLOSING
8.1. Conditions to the Obligations of the Buyer
------------------------------------------
The obligations of Buyer under this Agreement shall, at the option of
Buyer, be subject to the satisfaction, on or prior to the Closing Date,
of each of the following conditions:
(a) No Misrepresentation or Breach of Covenants and Warranties
----------------------------------------------------------
Seller shall have complied in all material respects with its
covenants and agreements herein and in the Coordinating
Agreement; each of the representations and warranties of Seller
contained in this Agreement shall be true and correct in all
material respects on the Closing Date as though made on the
Closing Date (except with respect to those representations and
warranties that speak as to a particular date or time, which only
need be true and correct as of such date or time), except for
29
<PAGE>
changes therein specifically permitted by this Agreement or
resulting from any transaction expressly consented to in writing
by Buyer; and there shall have been delivered to Buyer a
certificate to such effect, dated the Closing Date, signed by a
director of Seller.
(b) Closing Documents
-----------------
Buyer shall have received from Seller the closing documents
contemplated by Section 4.2.
(c) Necessary Approvals
-------------------
Seller and Buyer shall have received all approvals and actions of
or by all Governmental Bodies and any other Person which are
necessary to consummate the transactions contemplated hereby and
by the ROW Agreements.
(d) No Suit
-------
No Action by any Governmental Body shall be pending or threatened
questioning the legality of this Agreement or the consummation of
the transactions contemplated hereby in whole or in part.
(e) No Restraint
------------
No Court Order shall have been issued and be in effect which
restrains or prohibits any material transaction contemplated
hereby.
(f) Principal US Agreement
----------------------
The transactions contemplated by the Principal US Agreement shall
have closed simultaneously with the Closing.
(g) No Material Adverse Change
--------------------------
On the Closing Date, there shall not be a Material Adverse
Effect.
(h) Coordinating Agreement
----------------------
All conditions to Exide Corporation's obligations set forth in
Sections 5.5, 5.6 and 5.7(a) of the Coordinating Agreement shall
have been satisfied.
Notwithstanding the failure of any one or more of the foregoing
conditions, Buyer may, at its option, proceed with the Closing without
satisfaction, in whole or in part, of any one or more of such conditions
and without written waiver; provided however, that in so proceeding with
the Closing, and notwithstanding any other provision of this Agreement,
30
<PAGE>
Buyer shall be deemed to have waived any such failure and any rights or
remedies it may have against Seller by reason of such failure.
8.2. Conditions to the Obligations of Seller
---------------------------------------
The obligations of Seller under this Agreement shall, at the option of
Seller, be subject to the satisfaction, on or prior to the Closing Date,
of each of the following conditions:
(a) No Misrepresentation or Breach of Covenants and Warranties
----------------------------------------------------------
Seller shall have complied in all material respects with its
covenants and agreements herein and in the Coordinating
Agreement; each of the representations and warranties of Buyer
contained in this Agreement shall be true and correct in all
material respects on the Closing Date as though made on the
Closing Date (except with respect to those representations and
warranties that speak as to a particular date or time, which only
need be true and correct as of such date or time), except for
changes therein specifically permitted by this Agreement or
resulting from any transaction expressly consented to in writing
by Seller, and there shall have been delivered to Seller a
certificate to such effect, dated the Closing Date and signed by
the President or Vice President of Buyer.
(b) Closing Documents
-----------------
Seller shall have received from Buyer the closing documents
contemplated by Section 4.3.
(c) Payment of Purchase Price
-------------------------
Buyer shall have tendered payment of the Purchase Price.
(d) Necessary Approvals
-------------------
Seller and Buyer shall have received all approvals and actions of
or by all Governmental Bodies and any other Person which are
necessary to consummate the transactions contemplated hereby and
by the ROW Agreements.
(e) No Suit
-------
No Action by any Governmental Body shall be pending or threatened
questioning the legality of this Agreement or the consummation of
the transactions contemplated hereby in whole or in part.
31
<PAGE>
(f) No Restraint
------------
No Court Order shall have been issued and be in effect which
restrains or prohibits any material transaction contemplated
hereby.
(g) Principal US Agreement
----------------------
The transactions contemplated by the Principal US Agreement shall
have closed simultaneously with the Closing.
(h) No Material Adverse Change
--------------------------
On the Closing Date, there shall have been no event, occurrence
or condition (other than as a result of general economic
conditions or events affecting the automotive and industrial
battery business as a whole) which has, or could reasonably be
expected to have, a material adverse effect on the financial
condition, assets, results or operations, businesses, or
operations of Buyer taken as a whole.
(i) Coordinating Agreement
----------------------
All conditions to Pacific Dunlop Holdings (USA) Inc.'s
obligations set forth in Sections 5.5 and 5.7(b) of the
Coordinating Agreement shall have been satisfied.
Notwithstanding the failure of any one or more of the foregoing
conditions, Seller may, at its option, proceed with the Closing
without satisfaction, in whole or in part, of any one or more of
such conditions and without written waiver; provided, however,
that in so proceeding with the Closing, and notwithstanding any
other provision of this Agreement, Seller shall be deemed to have
waived any such failure and any rights or remedies it may have
against Buyer by reason of such failure.
ARTICLE 9.
ADDITIONAL AGREEMENT OF THE PARTIES
9.1. Taxes
-----
(a) Except to the extent reflected as a current liability on the
Final Closing Date Balance Sheet, Seller shall be liable for and
shall pay all Taxes (whether assessed or unassessed) applicable
to the Business or the Purchased Assets, in each case
attributable to all periods through to the Closing Date. Buyer
shall be liable for and shall (i) reimburse to Seller (in
accordance with Section 9.1(b)) all Taxes reflected as a current
liability on the Final Closing Date Balance Sheet; and (ii) pay
all Taxes (whether assessed or unassessed) applicable to the
operation of the Purchased Assets, in each case attributable to
periods beginning after the Closing Date.
32
<PAGE>
(b) Within 30 days of the final determination and agreement of the
Final Closing Date Balance Sheet in the manner provided in
Section 2.1 of the Coordinating Agreement, Buyer agrees to pay to
Seller (or as Seller directs in writing to Buyer) an amount which
equals the amount of the current liabilities for Taxes reflected
or reserved against in the Final Closing Date Balance Sheet.
Seller acknowledges and agrees that any such payment shall be in
full satisfaction and discharge of Buyer's obligations under
Section 2.7.
(c) Notwithstanding Section 9.1(a), any Tax attributable to the sale,
transfer or delivery of the Purchased Assets shall be borne and
paid in accordance with the provisions of Section 5.1 of the
Coordinating Agreement. Buyer and Seller agree to timely sign and
deliver such certificates or forms as may be necessary or
appropriate to establish an exemption from (or otherwise reduce),
or file Tax Returns with respect to, such Taxes.
(d) Seller or Buyer, as the case may be, shall provide reimbursement
for any Tax paid by one party, all or a portion of which is the
responsibility of the other party in accordance with the terms of
this Section 9.1. Within a reasonable time prior to the payment
of any said Tax, the party paying said Tax shall give notice to
the other party of the Tax payable and the portion which is the
liability of each party, although failure to do so will not
relieve the other party from its liability hereunder.
(e) Buyer shall promptly notify Seller in writing upon receipt by
Buyer or any of its Affiliates of notice of any pending or
threatened federal, state, local or foreign Tax audits,
examinations or assessments which may materially affect the Tax
liabilities for which Seller would be required to indemnify Buyer
pursuant to paragraph (a) of this Section 9.1. Seller shall have
the sole right to control any Tax audit or administrative or
court proceeding relating to taxable periods ending at the time
of or before the Closing at its expense, and to employ counsel of
its choice at its expense. Neither Buyer nor any of its
Affiliates may settle any Tax claim for any taxable year or
period ending at or before the time of the Closing (or for the
portion of any taxable year or period ending on the Closing)
which may be the subject of indemnification by Seller under
Section 9.1(a) without the prior written consent of Seller, which
consent shall not be unreasonably withheld.
(f) After the Closing, Seller and Buyer shall (and cause their
respective Affiliates to):
(i) make available to the other and to any taxing authority,
as reasonably requested, all information, records and
documents relating to Taxes relating to the Business, the
Purchased Assets or the Assumed Liabilities;
(ii) provide timely notices to the other in writing of any
pending or threatened Tax audits or assessments relating
to the Business, the Purchased Assets or the Assumed
Liabilities for taxable periods for which the other may
have a liability under this Section 9.1; and
33
<PAGE>
(iii) furnish the other with copies of all correspondence
received from any taxing authority in connection with any
Tax audit or information request with respect to any such
taxable period.
(iv) Buyer and Seller further agree, upon request, to use their
reasonable best efforts to obtain any certificate or other
document from any governmental authority or any other
Person as may be necessary to mitigate, reduce or
eliminate any Tax that could be imposed (including,
without limitation, with respect to the transactions
contemplated thereby).
9.2. Employees and Employee Benefit Plans
------------------------------------
(a) Prior to Closing, Seller shall provide Buyer a list of all
current employees of Seller who are solely or predominantly
engaged in the Business which shall include all employees who are
on annual leave, long service leave, sick leave, maternity leave
or are absent from work and entitled to reinstatement or
reemployment under any applicable statute, contract or policy
("Seller Employees").
(b) The Seller and Buyer shall cooperate to notify and consult Deemed
Transferring Employees on or as soon as practicable after the
date of this Agreement, but before Closing, on their transfer of
employment under the Employment Act.
(c) On or as soon as practicable after the date of this Agreement,
but before Closing, Buyer must send to each Seller Employee
except the Deemed Transferring Employees a letter in a form
agreed with Seller offering to employ the Seller Employee with
effect from Closing. Each offer must be for employment on
substantially the same terms and conditions under which the
Seller Employee is employed by Seller immediately before Closing
(including, but not limited to, those relating to retrenchment
and redundancy (in each case taking into account length of
service with Seller and superannuation)) and without loss of
continuity of employment for the purpose of all employee
entitlements except where the Seller Employee is legally entitled
to and in fact demands payment in cash on transfer.
(d) Each party must use its best endeavours to encourage all of the
Seller Employees to accept the offer so made.
(e) On or as soon as practicable after Closing, Seller must:
(i) release all Seller Employees accepting the offer of
employment from Buyer under Section 9.2(c), that release
to take effect as at the Closing Date; and
(ii) pay the Transferring Employees all Employment Benefits
(other than Employee Leave Benefits) due to or accrued by
them as at the Closing Date.
34
<PAGE>
(f) After Closing, Buyer must:
(i) pay the Transferring Employees all Employee Leave Benefits
and other entitlements due to them after the Closing Date as
and when they fall due; and
(ii) indemnify Seller against any liability for Employee Leave
Benefits and other entitlements due to or accrued by a
Transferring Employee under their terms of employment or
under the Employment Act after the Closing Date and against
all Actions in any way connected with the Buyer's employment
of a Transferring Employee or termination of that
employment.
9.3. Post-Closing Remittances
------------------------
If, after the Closing Date, Seller shall receive any remittance from any
account debtors with respect to any accounts or Receivables included in
the Purchased Assets, Seller shall endorse such remittance to the order
of Buyer and forward it to Buyer promptly following receipt thereof.
9.4. Insurance
---------
If in respect of the obligations and liabilities (including the Assumed
Liabilities) assumed by the Buyer under this Agreement Buyer suffers
after Closing any Losses or Expenses ("Insured Liabilities"), then:
(a) to the extent the Seller receives or recovers after Closing any
amounts in respect of such Insured Liabilities under any policies
of insurance maintained by Seller prior to Closing ("Relevant
Policy"), Seller shall promptly pay Buyer the lesser of the
amount of the Insured Liability paid by Buyer and the amount so
recovered by Seller, less all costs and expenses (including,
without limitation, any Taxes or increased premium costs)
incurred by Seller in connection with such recovery; and
(b) if permitted under the terms of the Relevant Policy and subject
to being indemnified by Buyer for all costs and expenses
(including, without limitation, any increased premium costs)
which may result, Seller will take such reasonable steps as Buyer
may request to ensure that Buyer is subrogated to and enjoys the
benefits of the rights of Seller under the Relevant Policies in
relation to the Insured Liability concerned.
35
<PAGE>
ARTICLE 10.
TERMINATION
10.1. Termination
-----------
Anything contained in this Agreement to the contrary notwithstanding,
this Agreement may be terminated at any time prior to the Closing Date:
(a) by the mutual written consent of Buyer and Seller;
(b) by Buyer or Seller if the Closing shall not have occurred on or
before December 31, 2000 unless:
(i) all conditions to Closing have previously been satisfied
or waived; and
(ii) the Closing has not then occurred solely because the date
for Closing specified in Section 4.1 has not yet occurred
and unless such failure to close is due primarily to the
breach by the party seeking termination of its
agreements, representations or warranties contained
herein;
(c) by Buyer in the event of any breaches in any material respect by
Seller of Seller's agreements, covenants, representations or
warranties contained herein, and which Seller has failed to
remedy or cure within twenty-one (21) days after receipt of
notice from Buyer requesting that such breaches be remedied or
cured;
(d) by Seller in the event of any breaches in any material respect by
Buyer of Buyer's agreements, covenants, representations or
warranties contained herein, which Buyer has failed to remedy or
cure within twenty-one (21) days after receipt of notice from
Seller requesting that such breaches be remedied or cured; or
(e) by Buyer or Seller if any court shall have issued a Court Order
or if any Governmental Body shall have issued a decree or ruling
or taken any other action permanently restraining, enjoining or
otherwise prohibiting the consummation of the transactions
contemplated hereby.
10.2. Notice of Termination
---------------------
Any party desiring to terminate this Agreement pursuant to Section 10.1
shall give written notice of such termination to the other parties to
this Agreement.
10.3. Effect of Termination
---------------------
In the event that this Agreement shall be terminated pursuant to this
Article 10, all further obligations of the parties under this Agreement
(other than Section 12.2, 12.8 and 12.11 of this Agreement and Sections
5.2, 5.3 and 5.4 of the Coordinating Agreement) shall be
36
<PAGE>
terminated without further liability of any party to the other, provided that
nothing herein shall relieve either party from liability for its willful breach
of this Agreement.
ARTICLE 11.
EXCLUSIVITY OF REMEDY
11.1. Indemnification by Seller
-------------------------
Seller's sole and exclusive indemnification obligations under this
Agreement are set forth in the Coordinating Agreement.
11.2. Indemnification by Buyer
------------------------
Buyer's sole and exclusive indemnification obligations under this
Agreement are set forth in the Coordinating Agreement.
11.3 Exclusivity of Remedy
---------------------
Except as provided in Section 10.3, with respect to any breach by either
party of its representations, warranties, covenants or agreements in this
Agreement, the respective Buyer Ancillary Agreements or Seller Ancillary
Agreements or the ROW Agreements, and the transactions contemplated
hereby and thereby, the sole and exclusive remedy of the other party (in
contract, tort, for contribution under Requirements of Law or otherwise)
shall be the indemnification provided in the Coordinating Agreement. In
view of this exclusivity of remedy provision, Buyer and Seller covenant
and agree for themselves and their respective Affiliates that they will
not bring, maintain, join or prosecute any Action or other proceeding
against the other or its Affiliates for breach of this Agreement except
as set out in the Coordinating Agreement.
ARTICLE 12.
GENERAL PROVISIONS
12.1. Notices
-------
Any notice, request, instruction or other document to be given hereunder
shall be in writing and: (a) delivered personally; (b) sent by reputable
overnight courier; or (c) transmitted by facsimile, according to the
instructions set forth below. Such notices shall be sent to the following
address and/or facsimile numbers and shall be deemed given: (x) if
delivered personally, at the time delivered; (y) if sent by reputable
overnight courier, at the time sent; or (z) if transmitted by facsimile,
at the time when receipt is confirmed by the sending facsimile machine.
37
<PAGE>
If to Seller, to:
Pacific Dunlop Holdings (Singapore) Pte Ltd
6 Loyang Way 2
Singapore 508704
Attention: Mr. Crispus Lee
Facsimile: 65 546 2766
with a copy to:
Pacific Dunlop Limited
Level 41, 101 Collins Street
Melbourne
Attention: Company Secretary
Facsimile: 61 3 9654 4184
If to Buyer, to:
c/o Exide Corporation
2901 Hubbard Road
Ann Arbor, Michigan 48105
United States of America
Attention: General Counsel
Facsimile: (734) 827-2575
with a copies to:
Linklaters
9 Raffles Place
9 Republic Plaza #34-00
Singapore 048619
Attention: Stephen Bull
Facsimile: 011 65 438 3811
and
Kirkland & Ellis
200 East Randolph Drive
Chicago, Illinois 60601
Attention: Mr. Carter W. Emerson, P.C.
Facsimile: 312-861-2200
or to such other address as such party may indicate by a notice delivered to the
other parties hereto in accordance with the provisions of this Section 12.1.
38
<PAGE>
12.2. Confidential Information
------------------------
Each party agrees that it will treat in confidence all documents,
materials and other information which it shall have obtained regarding
any of the other parties during the course of the negotiations leading to
the consummation of the transactions contemplated hereby (whether
obtained before or after the date of this Agreement), the investigation
provided for herein and the preparation of this Agreement and other
related documents ("Confidential Information") and, in the event the
transactions contemplated hereby shall not be consummated, each party
will return to the other party all copies of nonpublic Confidential
Information which have been furnished in connection therewith.
Confidential Information shall not be communicated to any third Person
(other than the parties' respective counsel, accountants, financial
advisors, or environmental consultants). No party shall use any
Confidential Information in any manner whatsoever except solely for the
purpose of evaluating the proposed transaction. Notwithstanding the
foregoing, after the Closing, Buyer may use or disclose any Confidential
Information related to Business. The Seller shall not at any time after
the Closing disclose any Confidential Information relating to the
Business. The obligation of each party to treat Confidential Information
in confidence shall not apply to any Confidential Information which (i)
is or becomes available to such party from a source other than such
party, (ii) is or becomes available to the public other than as a result
of disclosure by such party or its agents, (iii) is required to be
disclosed under applicable law or judicial process, but only to the
extent it must be disclosed, or (iv) as to which such party reasonably
deems disclosure necessary to obtain any of the consents or approvals
contemplated hereby.
12.3 No Public Announcement
----------------------
Neither Buyer nor Seller shall, without the approval of the other party,
issue any press release or other public announcement concerning the
transactions contemplated by this Agreement. Notwithstanding the
foregoing, either party may issue a press release or other public
announcement concerning the transactions contemplated by this Agreement
to the extent that such party or its Affiliates shall be so obligated by
law or to comply with accounting, U.S. Securities and Exchange
Commission, New York Stock Exchange, or Australian Stock Exchange
disclosure obligations, provided that such party shall be obligated to
give the other party prior notice of such press release or other public
announcement if prior notice is commercially feasible.
12.4. Entire Agreement; Amendments
----------------------------
This Agreement, the Coordinating Agreement, the ROW Agreements and the
Exhibits and Schedules referred to herein and therein and the Buyer
Ancillary Agreements and the Seller Ancillary Agreements contain the
entire understanding of the parties hereto with regard to the subject
matter contained herein or therein, and supersede all prior written or
oral agreements, understandings or letters of intent between or among any
of the parties hereto. This Agreement shall not be amended, modified or
supplemented except by a written instrument signed by an authorized
representative of each of the parties hereto.
39
<PAGE>
12.5. Successors and Assigns
----------------------
(a) The rights of each party under this Agreement and the
Coordinating Agreement shall not be assignable without the
written consent of the other party; provided however, that no
such assignment shall relieve the assigning party from any of its
duties or obligations under this Agreement or the Coordinating
Agreement.
(b) This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their successors and permitted assigns.
Nothing in this Agreement, expressed or implied, is intended or
shall be construed to confer upon any Person other than the
parties and successors and assigns permitted by this Section 12.5
any right, remedy, benefit or claim under or by reason of this
Agreement.
12.6. Interpretation
--------------
(a) Article titles and headings to sections herein are inserted for
convenience of reference only and are not intended to be part of
or to affect the meaning or interpretation of this Agreement. The
Schedules and Exhibits referred to herein shall be construed with
and as an integral part of this Agreement to the same extent as
if they were set forth herein.
(b) This Agreement and the Schedules and Exhibits hereto have been
mutually prepared, negotiated and drafted by each of the parties
hereto and thereto. The parties agree that the terms of this
Agreement shall be construed and interpreted against each party
in the same manner and that no such provisions shall be construed
or interpreted more strictly against one party on the assumption
that an instrument is to be construed more strictly against the
party which drafted the agreement.
12.7. Waivers
-------
Any term or provision of this Agreement may be waived, or the time for
its performance may be extended, pursuant to a written action by the
party or parties entitled to the benefit thereof. Any such waiver shall
be validly and sufficiently authorized for purposes of this Agreement if,
as to any party, it is authorized in writing by an authorized
representative of such party. Subject to Sections 8.1 and 8.2, the
failure of any party hereto to enforce at any time any provision of this
Agreement shall not be construed to be a waiver of such provision, nor in
any way to affect the validity of this Agreement or any part hereof or
the right of any party thereafter to enforce each and every such
provision. No waiver of any breach of this Agreement shall be held to
constitute a waiver of any other or subsequent breach.
40
<PAGE>
12.8. Expenses
--------
Subject to the provisions of the Coordinating Agreement or the ROW
Agreements, regardless of whether the transactions provided for in this
Agreement are consummated, each party hereto will pay its own costs and
expenses incident to the negotiation, preparation and performance of
this Agreement, including the fees, expenses and disbursements of its
counsel, financial advisors, and accountants.
12.9. Partial Invalidity
------------------
Wherever possible, each provision hereof shall be interpreted in such
manner as to be effective and valid under applicable law, but in case
any one or more of the provisions contained herein shall, for any
reason, be held to be invalid, illegal or unenforceable in any respect,
such provision shall be ineffective to the extent, but only to the
extent, of such invalidity, illegality or unenforceability without
invalidating the remainder of such invalid, illegal or unenforceable
provision or provisions or any other provisions hereof, unless such a
construction would be unreasonable.
12.10. Execution in Counterparts
-------------------------
This Agreement may be executed in one or more counterparts, each of
which shall be considered an original instrument, and shall become
binding when one or more counterparts have been signed by each of the
parties hereto and delivered to each of Seller and Buyer.
12.11. Governing Law
-------------
This Agreement shall be governed by and construed in accordance with the
internal laws of the State of Illinois, USA, without giving effect to
any choice of laws provisions which may direct the application of the
laws of another jurisdiction.
12.12. Further Assurances and Cooperation
----------------------------------
(a) From and after the date of this Agreement, upon the request of
either Seller or Buyer or any of their respective Affiliates, the
other party and its Affiliates shall execute and deliver such
instruments, documents or other writings as may be reasonably
necessary or desirable to confirm and carry out and to effectuate
fully the intent and purposes of this Agreement.
(b) After the Closing on reasonable advance notice, Buyer shall
provide Seller, Seller's Affiliates, and any advisor retained by
Seller or its Affiliates with reasonable access to the management
and properties, books, records, and documents (which were in
existence on the Closing) relating to the Purchased Assets or the
Business during normal business hours and in a manner which does
not unreasonably interfere with the Business for any reasonable
purpose including, but not limited to, the fulfillment of
Seller's responsibilities under Section 4.1(a) of the
Coordinating Agreement, the
41
<PAGE>
enforcement of Seller's and its Affiliates' rights under Article
2 of the Coordinating Agreement and clause (iii) of Section
4.2(a) of the Coordinating Agreement. As reasonably necessary,
Seller, Seller's Affiliates, and any advisor retained by Seller
or its Affiliates shall be entitled to make copies of such books,
records and documents at their expense. If Buyer shall desire at
any time to dispose of any of such books, records or documents,
Buyer shall, prior to such disposition, give Seller a reasonable
opportunity to segregate and remove such books and records as
Seller may select. The obligations of Buyer pursuant to this
Section 12.12(b) shall survive the Closing indefinitely.
12.13. No Reliance
-----------
The provisions of this Agreement are intended for the sole benefit of
Buyer and Seller and shall not inure to the benefit of any other Person,
other than successors and permitted assigns of Buyer and Seller, whether
as third party or otherwise.
12.14. Disclosure Schedules
--------------------
The Disclosure Schedules are hereby incorporated by reference into and
made a part of this Agreement. The inclusion of any item in the
Disclosure Schedules is intended to qualify the representations and
warranties contained in this Agreement, and to set forth other
information required by this Agreement. Disclosure of information in any
one of the Disclosure Schedules shall be deemed to be a disclosure with
respect to every Section of this Agreement, notwithstanding the presence
or absence of a cross-reference to Disclosure Schedules under other
Sections of this Agreement if the meaning of such disclosure in the
context of such other section is reasonably ascertainable. Disclosure of
information in the Disclosure Schedules shall not be deemed to be an
admission by Seller that such information is material for purposes of
this Agreement. Summaries or extracts of any documents, instruments, or
other agreements contained in the Disclosure Schedules are for the
convenience of reference only and are qualified in their entirety by
reference to the applicable document, instrument or other agreement so
summarized or extracted from.
42
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
the day and year first above written.
SELLER:
PACIFIC DUNLOP HOLDINGS (SINGAPORE) PTE LTD
By its duly appointed attorney:
_______________________________________
Name: Martin M. Hudson
Title: Attorney in Fact
BUYER:
BLUEWALL PTE. LTD
By its Director duly authorized:
Signature: ____________________________
Name: _________________________________
Title:_________________________________
43
<PAGE>
EXHIBIT A
--------------------------------------------------------------------------------
Purchase Price : US$ 1,934,000
Assumed Liabilities : US$ 1,600,000
---------
Total : US$ 3,534,000
=========
--------------------------------------------------------------------------------
Allocation to Purchased Assets
--------------------------------------------------------------------------------
Real Property US$ 13,083
--------------------------------------------------------------------------------
Machinery & Equipment US$ 24,003
--------------------------------------------------------------------------------
Inventory US$ 1,340,906
--------------------------------------------------------------------------------
Receivables US$ 1,628,436
--------------------------------------------------------------------------------
Other Assets US$ 527,572
--------------------------------------------------------------------------------
Total US$ 3,534,000
--------------------------------------------------------------------------------
44
<PAGE>
STOCK PURCHASE AGREEMENT
WITH RESPECT TO GNB TECHNOLOGIES (INDIA) PRIVATE LIMITED
Dated as of 28 June 2000
among
Pacific Dunlop Holdings (Singapore) Pte. Ltd., as Seller
and
Exide Holding Asia Pte. Limited, as Buyer
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C>
ARTICLE 1. DEFINITIONS................................................................................ 1
Section 1.1. Definitions........................................................................... 1
ARTICLE 2. PURCHASE AND SALE.......................................................................... 5
Section 2.1. Purchase and Sale of Shares........................................................... 5
Section 2.2. Purchase Price........................................................................ 5
ARTICLE 3. CLOSING.................................................................................... 6
Section 3.1. Closing............................................................................... 6
Section 3.2. Documents to be Delivered to Buyer.................................................... 6
Section 3.3. Documents to be Delivered to Seller................................................... 7
Section 3.4. Form of Documents..................................................................... 7
Section 3.5. Post Closing Matters.................................................................. 7
ARTICLE 4. REPRESENTATIONS AND WARRANTIES REGARDING SELLER............................................ 8
Section 4.1. Organization.......................................................................... 8
Section 4.2. Power and Authority................................................................... 8
Section 4.3. Agreement Binding..................................................................... 8
Section 4.4. Absence of Conflicts.................................................................. 8
Section 4.5. No Litigation......................................................................... 9
Section 4.6. Title to Shares....................................................................... 9
Section 4.7. No Advisor............................................................................ 9
ARTICLE 5. REPRESENTATIONS AND WARRANTIES REGARDING GNB............................................... 9
Section 5.1. Organization.......................................................................... 9
Section 5.2. Capitalization........................................................................ 10
Section 5.3. Subsidiaries and Investments.......................................................... 10
Section 5.4. Absence of Conflicts.................................................................. 10
Section 5.5. No Litigation......................................................................... 11
Section 5.6. No Violation.......................................................................... 11
Section 5.7. Operations Since June 30, 1999........................................................ 11
Section 5.8. Taxes................................................................................. 13
Section 5.9. Title to Assets....................................................................... 14
Section 5.10. Real Property......................................................................... 14
Section 5.11. Personal Property..................................................................... 14
Section 5.12. Personal Property Leases.............................................................. 14
Section 5.13. Governmental Permits.................................................................. 15
Section 5.14. Intellectual Property................................................................. 15
Section 5.15. Employees............................................................................. 15
Section 5.16. Employee Relations.................................................................... 16
Section 5.17. Commercial Contracts.................................................................. 16
Section 5.18. Status of Contracts................................................................... 17
Section 5.19. Environmental Matters................................................................. 17
Section 5.20. Insurance............................................................................. 18
Section 5.21. Product Warranties.................................................................... 19
Section 5.22. Bank Accounts, Guarantees and Powers.................................................. 19
Section 5.23. Accounts and Records.................................................................. 19
Section 5.24. No Misrepresentation.................................................................. 19
Section 5.25. Sufficiency of Assets................................................................. 19
</TABLE>
-i-
<PAGE>
<TABLE>
<S> <C>
Section 5.26. Powers of Attorney................................................................... 19
ARTICLE 6. REPRESENTATIONS AND WARRANTIES OF BUYER................................................... 20
Section 6.1. Organization......................................................................... 20
Section 6.2. Power and Authority.................................................................. 20
Section 6.3. Agreement Binding.................................................................... 20
Section 6.4. Absence of Conflicts................................................................. 20
Section 6.5. No Litigation........................................................................ 20
Section 6.6. Investment Representation............................................................ 21
Section 6.7. No Advisor........................................................................... 21
Section 6.8. No Misrepresentation................................................................. 21
ARTICLE 7. ACTION PRIOR TO THE CLOSING DATE.......................................................... 21
Section 7.1. Preserve Accuracy of Representations and Warranties.................................. 21
Section 7.2. Governmental Approvals............................................................... 21
Section 7.3. Operations Prior to the Closing Date................................................. 22
Section 7.4. Notification of Changes.............................................................. 22
Section 7.5. Satisfaction of Condition............................................................ 22
Section 7.6. Intercompany Agreements.............................................................. 22
Section 7.7. Preemptive Rights.................................................................... 22
Section 7.8. Insurance Matters.................................................................... 22
Section 7.9. General.............................................................................. 23
Section 7.10. Preservation of Business............................................................. 23
ARTICLE 8. CONDITIONS TO CLOSING..................................................................... 23
Section 8.1. Conditions to the Obligations of the Buyer........................................... 23
Section 8.2. Conditions to the Obligations of Seller.............................................. 24
ARTICLE 9. TERMINATION............................................................................... 25
Section 9.1. Termination.......................................................................... 25
Section 9.2. Notice of Termination................................................................ 26
Section 9.3. Effect of Termination................................................................ 26
ARTICLE 10. EXCLUSIVITY OF REMEDY..................................................................... 26
Section 10.1. Indemnification by Seller............................................................ 26
Section 10.2. Indemnification by Buyer............................................................. 26
Section 10.3. Exclusivity of Remedy................................................................ 26
ARTICLE 11. ADDITIONAL AGREEMENTS OF THE PARTIES...................................................... 27
Section 11.1. Taxes................................................................................ 27
ARTICLE 12. GENERAL PROVISIONS........................................................................ 29
Section 12.1. Notices.............................................................................. 29
Section 12.2. Confidential Information............................................................. 30
Section 12.3. No Public Announcement............................................................... 30
Section 12.4. Entire Agreement; Amendments......................................................... 31
Section 12.5. Successors and Assigns............................................................... 31
Section 12.6. Interpretation....................................................................... 31
Section 12.7. Waivers.............................................................................. 31
Section 12.8. Expenses............................................................................. 32
Section 12.9. Partial Invalidity................................................................... 32
Section 12.10. Execution in Counterparts............................................................ 32
Section 12.11. Governing Law........................................................................ 32
Section 12.12. Further Assurances and Cooperation................................................... 32
Section 12.13. No Reliance.......................................................................... 33
</TABLE>
-ii-
<PAGE>
<TABLE>
<S> <C>
Section 12.14. Disclosure Schedules................................................................. 33
</TABLE>
-iii-
<PAGE>
SCHEDULES
Schedule 5.2 Capitalization
Schedule 5.4 Absence of Conflicts
Schedule 5.5 No Litigation
Schedule 5.6 No Violation
Schedule 5.7 Operations since April 30, 1998
Schedule 5.8 Taxes
Schedule 5.9 Title to Assets
Schedule 5.10 Real Property
Schedule 5.11 Personal Property
Schedule 5.12 Personal Property Leads
Schedule 5.13 Governmental Permits
Schedule 5.14 Intellectual Property
Schedule 5.15 Employees
Schedule 5.16 Employee Relations
Schedule 5.17 Commercial Contracts
Schedule 5.18 Status of Contracts
Schedule 5.19 Environmental Matters
Schedule 5.20 Insurance
Schedule 5.21 Product Warranties
Schedule 5.22 Bank Accounts, Guarantees and Powers
Schedule 7.6 Intercompany Agreements
-iv-
<PAGE>
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT, dated as of 28 June 2000 (the "Agreement")
is executed by and among Pacific Dunlop Holdings (Singapore) Pte. Ltd., a
corporation incorporated under the laws of Singapore ("Seller") and Exide
Holding Asia Pte. Limited, a corporation incorporated under the laws of
Singapore and whose registered number is 200005013E ("Buyer").
WHEREAS, Seller owns the Shares (as defined herein) comprised in the
capital stock of GNB Technologies (India) Private Limited, a corporation incor
porated under the laws of India ("GNB");
WHEREAS, Buyer desires to purchase from Seller, and Seller desires to sell
to Buyer, the Shares all on the terms and subject to the conditions set forth
herein;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth Seller and Buyer agree as follows:
ARTICLE 1.
DEFINITIONS
Section 1.1. Definitions. In this Agreement, the following terms have
-----------
the meanings specified or referred to in this Section 1.1 and shall be equally
-----------
applicable to both the singular and plural forms. Any agreement referred to
below shall mean such agreement as amended, supplemented and modified from time
to time to the extent permitted by the applicable provisions thereof and by this
Agreement.
"Action" means any lawsuit, arbitration, or regulatory, governmental
or other proceeding or investigation whether at law or in equity.
"Adjoining Properties" shall mean all sites or locations other than
the Real Property or the PRP Sites to which Contaminants have migrated from the
Real Property through air, soil, surface water or groundwater.
"Affiliate" means, with respect to any Person, any other Person which
directly or indirectly controls, is controlled by or is under common control
with such Person.
"Agreement" has the meaning specified in the first paragraph of this
Agreement.
"Business" means the marketing and distribution of batteries and
allied products, parts and service for industrial applications as conducted by
GNB immediately prior to the Closing Date.
"Business Day" means a day other than Saturday, Sunday or a day on
which banks in India are closed.
<PAGE>
"Buyer" has the meaning specified in the first paragraph of this
Agreement.
"Buyer Ancillary Agreements" means all agreements, instruments and
documents being or required to be executed and delivered by Buyer under this
Agreement.
"Closing" has the meaning specified in Section 3.1.
"Closing Date" has the meaning specified in Section 3.1.
"Contaminant" means a solid, liquid, gas, odor, heat, sound,
vibration, radiation or substance which makes or may make the environment:
(a) unsafe or unfit for habitation or occupation by persons or
animals;
(b) degraded in its capacity to support plant life;
(c) otherwise environmentally degraded; or
(d) not comply with any Environmental Law.
"Coordinating Agreement" means that certain Coordinating Agreement
dated May 9, 2000 between Pacific Dunlop Holdings (USA) Inc. and Exide
Corporation, as amended and supplemented from time to time.
"Court Order" means any judgment, order, award or decree of any
foreign, federal, state, or local court, tribunal or governmental agency and any
award in any arbitration proceeding.
"Disclosure Schedules" means the Disclosure Schedules dated 12 June
2000 as modified pursuant to Section 5.7 of the Coordinating Agreement.
"Encumbrance" means any lien, charge, security interest, mortgage,
pledge, power of sale, easement, encroachment, covenant, restriction on transfer
or other restriction on or defect in title or other encumbrances.
"Environmental Law" means all Requirements of Law relating to
pollution or the regulation and protection of human health or the environment,
including, without limitation, those regarding or relating to emissions,
discharges, Releases or threatened Releases of Contaminants or otherwise
relating to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport, or handling of Contaminants.
"Expenses" means any and all reasonable expenses incurred in
connection with investigating, defending or asserting any Action or overtly
threatened Action (including court filing fees, court costs, arbitration fees or
costs, witness fees, and reasonable fees and disbursements of legal counsel,
investigators, expert witnesses, accountants and other professionals).
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<PAGE>
"Final Closing Date Balance Sheet" has the meaning specified in
Section 2.1(c) of the Coordinating Agreement.
"Financial Statements" has the meaning specified in the
Coordinating Agreement.
"GNB" has the meaning specified in the second paragraph of this
Agreement.
"Governmental Body" means any foreign, federal, state, or local
governmental authority, agency, or regulatory body.
"Governmental Permits" has the meaning specified in Section 5.13.
"Hebbar Shares" has the meaning specified in Section 5.2.
"Insurance Policies" has the meaning specified in Section 7.8(a).
"Insured Claims" has the meaning specified in Section 7.8(a).
"Intellectual Property" has the meaning specified in Section 5.14(a).
"Intercompany Agreements" means agreements between GNB and an
Affiliate of GNB.
"Interim Period" has the meaning specified in Section 11.1(b).
"June 30, 1999 Balance Sheet" has the meaning specified in the
Coordinating Agreement, including the notes to such balance sheet.
"Knowledge of the Seller" or similar phrases means matters actually
known to: Thomas Minner, Thomas Smith, Thomas O'Hare, Mitchell Bregman, Barbara
Hatcher, Sanjay Deshpande or Ranna Hebbar.
"Knowledge of the Seller Regarding Environmental Matters" or similar
phrases means matters actually known to Barbara Hatcher, Steve Emmons, or Ranna
Hebbar.
"Leased Real Property" has the meaning specified in Section 5.10.
"Losses" means losses, obligations, liabilities, settlement payments,
awards, judgments, fines, assessments, penalties, and damages.
"March 31, 2000 Balance Sheet" has the meaning specified in the
Coordinating Agreement, including the notes to such balance sheet.
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<PAGE>
"Material Adverse Effect" means any event, occurrence or condition
(other than as a result of general economic conditions or events or conditions
affecting the automotive and industrial battery industry as a whole) which has,
or could reasonably be expected to have, a material adverse effect on the
financial condition, assets, results of operations, Business, or operations of
GNB, taken as a whole.
"Person" means any individual, corporation, partnership, limited
liability company or corporation, joint venture, association, joint-stock
company, trust, unincorporated organization or Governmental Body.
"Pre-Closing Period" has the meaning specified in Section 11.1(b).
"Principal US Agreement" means the Stock Purchase Agreement with
respect to Pacific Dunlop GNB Corporation dated May 9, 2000 between Pacific
Dunlop Holdings (USA) Inc., as Seller, and Exide Corporation, as Buyer, as
amended and supplemented from time to time.
"PRP Sites" shall mean all (other than the Real Property and the
Adjoining Properties) with respect to which GNB or any of their successors or
assignees have or may have liability under any Environmental Law.
"Purchase Price" has the meaning specified in Section 2.2.
"Release" includes any and all spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, dumping,
disposing, and any other means by which a substance may be introduced into or
travel through the environment.
"Remedial Action" shall include all actions required by a Court Order
or otherwise by a Governmental Body to (i) clean up, remove, remediate, contain,
treat, monitor, assess, evaluate, or in any other way address Contaminants, or
(ii) prevent or minimize a Release or threatened Release of Contaminants.
"Requirements of Law" means any foreign, federal, state or local law,
statute, regulation, code or ordinance of any Governmental Body currently in
effect.
"ROW Agreements" has the meaning specified in the Coordinating
Agreement.
"Schedule" refers to a schedule in the Disclosure Schedules.
"Seller" has the meaning specified in the first paragraph of this
Agreement.
"Seller Ancillary Agreements" means all agreements, instruments and
documents being or required to be executed and delivered by the Seller under
this Agreement.
"Shares" has the meaning specified in Section 2.1.
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<PAGE>
"Short Period" has the meaning specified in Section 11.1(b).
"Tax" (and, with correlative meaning, "Taxes" and "Taxable") means any
federal, state, county, local or foreign income, alternative or add-on minimum,
gross income, gross receipts, capital gains, capital, property, sales, use,
transfer, license, excise, premium, lease, estimated, environmental,
registration, value added, stamp, real property, franchise, employment, payroll,
wage, withholding or minimum tax, ad valorem, or customs duty and any other
similar taxes or governmental charges, fees, levies, assessments or liabilities
of any kind whatsoever, whether computed on a separate or consolidated, unitary
or combined basis or in any other manner, and includes any interest, penalty or
fine, or addition to tax imposed by any Governmental Body.
"Tax Return" means any return, report or similar statement required to
be filed with respect to any Taxes (including any attached schedules),
including, without limitation, any information return, claim for refund, amended
return and declaration of estimated Tax.
ARTICLE 2.
PURCHASE AND SALE
Section 2.1. Purchase and Sale of Shares.
---------------------------
(a) On the terms and subject to the conditions of this Agreement, on the
Closing Date, Seller shall sell, transfer, assign, convey and deliver to Buyer,
and Buyer shall purchase from Seller, all of the issued and outstanding equity
shares of capital stock of GNB owned beneficially and of record by Seller (the
"Shares") free from Encumbrances together with all rights attaching to such
Shares at Closing.
(b) Buyer shall, from the Closing Date, be entitled to exercise all rights
attached to or accrued to the Shares including, without limitation, the right to
receive all dividends made or paid on or after the Closing Date.
Section 2.2. Purchase Price. The purchase price (the "Purchase Price")
--------------
shall be equal to One Thousand Six United States Dollars (US$1,006). At the
Closing, Buyer shall pay the Purchase Price to Seller by wire transfer of
immediately available funds to such bank account as Seller shall direct in
writing. After Closing, the Purchase Price shall be adjusted pursuant to the
Coordinating Agreement.
ARTICLE 3.
CLOSING
Section 3.1. Closing. The closing of the purchase and sale of the Shares
-------
(the "Closing") shall be consummated at 10:00 a.m. Chicago time on the last
Business Day of the month in which the last of the conditions specified in
Article 8 is satisfied or waived, at the offices of Gardner, Carton & Douglas
---------
at 321 North Clark Street, in Chicago, Illinois, U.S.A., or at such other time
or place as shall be agreed upon by Seller and Buyer. Notwithstanding the
foregoing, if the date upon which the last of the conditions specified in
Article 8 is satisfied or waived is five (5) or fewer Business Days before the
---------
last day of the month, then the Closing shall
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<PAGE>
be consummated on the fifth (5th) Business Day following the date upon which the
last of such conditions was satisfied or waived, or such other date as may be
agreed upon by Buyer and Seller. The time and date on which the Closing is
actually held is referred to herein as the "Closing Date." The Closing shall be
effective as of the close of business on the Closing Date.
Section 3.2. Documents to be Delivered to Buyer. At the Closing, Seller
----------------------------------
shall deliver to Buyer or as Buyer may direct:
(a) a duly executed and completed transfer of the Shares in favour of the
Buyer or as the Buyer may direct together with the relative share certificates
(or an indemnity in agreed a form reasonably satisfactory to the Buyer in
respect of any share certificates which are missing) and any power of attorney
under which such transfer has been executed;
(b) duly executed transfers of any of the shares held by nominees in favor
of Buyer or as Buyer may direct;
(c) duly executed counterparts of the Seller Ancillary Agreements;
(d) a closing certificate of the Seller in a form reasonably satisfactory
to the Buyer certifying as to the accuracy of the Seller's representations and
warranties at and as of the Closing and that the Seller has performed and
complied with all of the terms, provisions and conditions to be performed and
complied with by the Seller at or before the Closing;
(e) the written resignations of their respective offices executed as a deed
by each of the directors and officers (including the company secretary of GNB)
as may be required to resign by the Buyer of GNB effective as of the Closing
Date;
(f) documentation sufficient to convey by transfer or license certain
intellectual property to GNB from certain GNB Affiliates (the "Intellectual
Property Transfer/License Documents");
(g) a certificate of the secretary or an assistant secretary of Seller in a
form reasonably satisfactory to Buyer, dated the Closing Date, certifying as to:
(i) Seller's constituent document, (ii) the resolutions of Seller's board of
directors, authorizing the execution and performance of this Agreement, the
Seller Ancillary Agreements, and the transactions contemplated hereby; and (iii)
incumbency and signatures of its officers or representatives executing this
Agreement and any Seller Ancillary Agreement;
(h) a direction duly executed by Seller to Ranna Hebbar directing him to
hold on and from Closing the twenty-one shares in the capital of GNB held by
him, on behalf of and at the sole direction of Buyer; and
(i) such other certificates and documents as Buyer or its counsel may
reasonably request.
Section 3.3. Documents to be Delivered to Seller. Upon completion of all
-----------------------------------
the matters referred to in Section 3.2 (and only upon such completion), Buyer
-----------
shall be obliged to deliver to Seller:
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<PAGE>
(a) a closing certificate of Buyer in a form reasonably satisfactory to
Seller;
(b) duly executed counterparts of the Buyer Ancillary Agreements;
(c) a certificate of the secretary or an assistant secretary of Buyer in a
form reasonably satisfactory to Seller, dated the Closing Date, certifying as
to: (i) the resolutions of Buyer's board of directors, authorizing the
execution and performance of this Agreement, the Buyer Ancillary Agreements, and
the transactions contemplated hereby; and (ii) incumbency and signatures of its
officers or representatives executing this Agreement and any Buyer Ancillary
Agreement; and
(d) such other certificates and documents as Seller or its counsel may
reasonably request.
Section 3.4. Form of Documents. The documents and instruments referred
-----------------
to in Sections 3.2 and 3.3 shall be satisfactory as to form to counsel for the
------------ ---
party to whom they are delivered.
Section 3.5. Post Closing Matters.
--------------------
(a) The Seller hereby declares that for so long as it remains the
registered holder of any of the Shares after Closing it will:
(i) hold the Shares and the dividends and other distributions of
profits or surplus or other assets declared, paid or made in
respect of them after Closing and all rights arising out of
or in connection with them in trust for the Buyer and its
successors in title; and
(ii) deal with and dispose of the Shares and all such dividends,
distributions and rights as are described in Section
3.6(a)(i) as the Buyer or any such successor may direct.
(b)
(i) The Seller hereby appoints the Buyer as its lawful attorney
for the purpose of receiving notices of an attending and
voting all meetings of the members of GNB from Closing to
the date on which the Buyer or its nominee is entered in the
register of members of GNB as the holder of the Shares.
(ii) For such purpose the Seller hereby authorises:
(A) GNB to send any notices in respect of its holding of
Shares to the Buyer; and
(B) the Buyer to complete in such manner as it thinks fit
and to return proxy cards, consents to short notice and
any other document required to be signed by it in its
capacity as a member.
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<PAGE>
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES REGARDING SELLER
Seller represents and warrants to Buyer as follows:
Section 4.1. Organization. Seller is a corporation duly organized, validly
------------
existing and in good standing under the laws of Singapore.
Section 4.2. Power and Authority. Seller has the full corporate power and
-------------------
authority to execute and deliver this Agreement and the Seller Ancillary
Agreements and to perform its obligations hereunder and thereunder. Seller's
execution, delivery and performance of this Agreement and the Seller Ancillary
Agreements has been duly authorized and approved by all necessary corporate
action.
Section 4.3. Agreement Binding. This Agreement has been, and the
-----------------
Seller Ancillary Agreements will be, duly executed and delivered by Seller and,
assuming due authorization, execution, and delivery by Buyer, is and will be the
legal, valid and binding obligations of Seller enforceable against Seller in
accordance with their respective terms, subject to general principles of equity
and except as enforceability may be limited by applicable bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium or other similar
laws of general application relating to creditors' rights generally.
Section 4.4. Absence of Conflicts. The execution, delivery and
--------------------
performance of this Agreement and the Seller Ancillary Agreements and the
consummation of the transactions contemplated hereby and thereby, will not:
(a) conflict with, result in a breach of the terms, conditions or
provisions of, or constitute a default, an event of default or an event creating
rights of acceleration, termination or cancellation, or result in the
termination of or result in the creation or imposition or crystallisation of any
Encumbrance upon the Shares or any assets of GNB under, (i) any term or
provision of the Memorandum of Association or Articles of Incorporation of
Seller; (ii) any note, instrument, contract, agreement, mortgage, indenture,
lease, license, or franchise to which Seller or any Affiliate of Seller is a
party or by which it or any of its assets is bound; (iii) any Court Order; or
(iv) any Requirements of Law; except for any of the foregoing which,
individually or in the aggregate is or are not likely to have a Material Adverse
Effect or hinder or impair the consummation of the transactions contemplated
hereby; or
(b) require the approval, consent, authorization or act of, or the making
by Seller or any Affiliate of Seller of any declaration, notification, filing or
registration with any Person, except for governmental approvals and any of the
foregoing which, individually or in the aggregate, if not taken, is or are not
likely to have a Material Adverse Effect, or materially hinder or impair the
consummation of the transactions contemplated hereby.
Section 4.5. No Litigation. There is no Action pending or, to the Knowledge
-------------
of Seller, threatened which questions the legality or propriety of the
transactions contemplated by this
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<PAGE>
Agreement or the Seller Ancillary Agreements or which would impair the
consummation of the transactions contemplated hereby or thereby.
Section 4.6. Title to Shares. Subject to the provisions contained in
---------------
the Articles of Association of GNB regarding restriction on transfer of shares
and the terms of approval dated October 17, 1997 of the Secretariat of
Industrial Assistance requiring the Seller to disinvest 25% of the equity within
five to seven years form the date of the approval, Seller has good, valid and
marketable title to the Shares, free and clear of all Encumbrances, and has full
right and power to vote and dispose of such Shares as contemplated herein. The
Seller is not a party to any option, warrant, purchase right, or other contract
or commitment that could require the Seller to sell, transfer, or otherwise
dispose of any of the Shares (other than this Agreement). The Seller is not a
party to any voting trust, proxy, or other agreement or understanding with
respect to the voting of any of the Shares.
Section 4.7. No Advisor. Neither Seller nor any of its Affiliates nor
----------
any Person acting on its or their behalf, has retained any advisor, broker,
investment banker or financial advisor in connection with this Agreement or any
transaction contemplated hereby for which the Buyer or GNB may be liable.
ARTICLE 5.
REPRESENTATIONS AND WARRANTIES REGARDING GNB
Seller represents and warrants to Buyer as follows:
Section 5.1. Organization. GNB is a corporation duly organized,
------------
validly existing and is duly authorized under the laws of India. Seller has
delivered or made available to Buyer complete and correct copies of GNB's
organizational documents and amendments thereto as in effect on the date hereof
and has furnished or made available copies of the minute books and other
statutory registers of GNB. Such organizational documents are in full force and
effect. GNB is not in violation of any provision of its Memorandum of
Association or Articles of Association. GNB has all requisite corporate power
and authority to own or hold under lease its properties and assets and to carry
on its business as currently conducted and to operate the properties and assets
now being operated by it.
Section 5.2. Capitalization. The authorized capital of GNB consists of
--------------
Two Million (2,000,000) shares of common stock, par value INR10 per share. On
the date of the Closing, there will be One Million Five Hundred Forty Eight
Thousand Four Hundred Thirty Six (1,548,436) equity shares of the stock of GNB
issued and outstanding, One Million Five Hundred Forty Eight Thousand Four
Hundred Fifteen (1,548,415) of which are owned by the Seller and constitute the
Shares. All of the Shares are owned by Seller. As of the Closing, the Twenty
One (21) shares of issued and outstanding stock that are not owned by Seller
will be owned by Mr. Ranna Hebbar, an employee of GNB (the "Hebbar Shares").
The Shares and the Hebbar Shares have been duly authorized and validly issued,
are fully paid and non-assessable, and have not been issued in violation of any
preemptive or other rights under applicable law, GNB's organizational document,
or the terms of any subscription, option, warrant, right, agreement, commitment
or Court Order to which GNB is a party, or by which it is bound. Except as set
forth on Schedule 5.2, GNB has no outstanding subscriptions, options, warrants,
------------
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<PAGE>
rights, agreements or other commitments granting to any Person any interest in
or right to acquire any of its securities, including, without limitation, the
Shares and the Hebbar Shares, or any interest therein. GNB has not issued any
security convertible into, or exchangeable for, the Shares or the Hebbar Shares
or other capital shares, and there is no voting trust or other agreement or
understanding to which GNB or Seller is a party or by which either of them is
bound with respect to the voting of the Shares or the Hebbar Shares. GNB is not
under any obligation, whether contingent or otherwise, to issue or repurchase
any of its capital shares or to share or make any dividend or distribution
payments based on its revenues, profits or net income.
Section 5.3. Subsidiaries and Investments. GNB has no subsidiaries.
----------------------------
GNB does not own, directly or indirectly, any stocks, bonds or securities or any
equity or other proprietary interest in any Person.
Section 5.4. Absence of Conflicts. Except as set forth in Schedule
-------------------- --------
5.4, the execution, delivery, and performance of this Agreement and the Seller
Ancillary Agreements, and the consummation of the transactions contemplated
hereby and thereby, will not:
(a) conflict with, result in a breach of the terms, conditions or
provisions of, or constitute a default, an event of default or an event creating
rights of acceleration, termination or cancellation, or result in the
termination of, or result in the creation or imposition or crystallisation of
any Encumbrance upon the Shares or the Hebbar Shares or any assets of GNB under:
(i) any term or provision of the organizational documents of GNB, (ii) any note,
instrument, contract, agreement, mortgage, indenture, lease, license, or
franchise to which GNB is a party or by which it or any of its assets, is bound;
(iii) any Court Order; or (iv) any Requirements of Law; except for any of the
foregoing which, individually or in the aggregate, is or are not likely to have
a Material Adverse Effect or hinder or impair the consummation of the
transactions contemplated hereby and thereby; or
(b) require the approval, consent, authorization or act of, or the making
by GNB of any declaration, notification, filing or registration with any Person,
except, for any of the foregoing which, individually or in the aggregate, is or
are not likely to have a Material Adverse Effect or materially hinder or impair
the consummation of the transactions contemplated hereby and thereby.
Section 5.5. No Litigation. Except as set forth in Schedule 5.5: (a)
------------- ------------
there is no Action pending or, to the Knowledge of Seller, threatened against
GNB or any of its assets and there has not been, to the Knowledge of Seller, any
claim asserted by any Person that could lead to an Action, and (b) neither GNB
nor any of its assets is subject to any currently pending Court Order. Except as
set forth in Schedule 5.5, to the Knowledge of Seller, there is no Action
------------
pending or threatened against any officer or director of GNB arising out of his
or her service as an officer or director of GNB.
Section 5.6. No Violation. Except as set forth in Schedule 5.6: (a)
------------ ------------
GNB has complied and is in compliance with all Court Orders and Requirements of
Law which are applicable to GNB and its business, and (b) GNB has complied and
is in compliance with all Court Orders and Requirements of Law which are
applicable to GNB, except, in either case, for
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<PAGE>
such Requirements of Law as to which noncompliance is not likely to have a
Material Adverse Effect.
Section 5.7. Operations Since June 30, 1999.
------------------------------
(a) Except as set forth in Schedule 5.7(A), or as reflected in the March
---------------
31, 2000 Balance Sheet, since June 30, 1999, there has been no material adverse
change in the business, operations, assets, or financial condition of GNB taken
as a whole. The termination of any Intercompany Agreement not listed on
Schedule 7.6 will not have a Material Adverse Effect.
------------
(b) Except as set forth in Schedule 5.7(B), or as reflected in the March
---------------
31, 2000 Balance Sheet, since June 30, 1999, GNB has conducted its business only
in the ordinary course and has not:
(i) made any material change in operations;
(ii) made any capital expenditure or entered into any contract or
commitment therefor in excess of the capital expenditures in the
"Fiscal Year 2000 Open Sanction Summary" attached to Schedule
5.7(B) to the Principal US Agreement;
(iii) sold, leased (as lessor), assigned transferred or otherwise
disposed of, or imposed or suffered to be imposed any Encumbrance
on, any of the assets, except for inventory and other personal or
real property sold, leased or otherwise disposed of for fair
value in the ordinary course of business consistent with past
practice and except for Permitted Encumbrances (as defined in the
Principal US Agreement);
(iv) canceled any debts owed to or claims held (including the
settlement of any Action) other than in the ordinary course of
business consistent with past practice;
(v) created, incurred or assumed, or agreed to create, incur or
assume, any indebtedness for borrowed money or entered into, as
lessee, any capitalized lease obligations or guaranteed any such
indebtedness or leases of others or made any loans other than in
the ordinary course of business consistent with past practice;
(vi) written off as uncollectible or accelerated or delayed collection
of notes or accounts receivable generated by GNB in advance of or
beyond their regular due dates or the dates when the same would
have been collected other than in the ordinary course of business
consistent with past practice;
(vii) delayed or accelerated payment of any accounts payable or other
liabilities of GNB beyond or in advance of their due date or the
date when such liabilities would have been paid other than in the
ordinary course of business consistent with past practice;
(viii) made any distribution of assets (including payments of cash) to
any of its Affiliates other than pursuant to agreements entered
into in the ordinary course of business consistent with past
practice or declared or paid any dividends, (provided that Seller
shall have the right to remove and retain all cash held by GNB),
or
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<PAGE>
redeemed, reclassified or purchased or otherwise acquired any
shares of its capital stock or authorized or issued any shares of
its capital stock or any option, warrant or other right to
purchase or acquire any such shares;
(ix) entered into or except as set forth in Schedule 5.15, amended any
-------------
employment, severance or similar agreement or arrangement or made
any increases in the wages, bonuses, and benefits of its
employees (other than any increases made in the ordinary course
of business consistent with past practice);
(x) waived any rights or settled any claims, except for such waivers
or settlements granted or entered into in the ordinary course of
business;
(xi) made any change in any method of accounting;
(xii) suffered or incurred any damage, destruction, fire, explosion,
accident, flood or other casualty loss or act of God (whether or
not covered by insurance) to any material operating asset or
group of operating assets;
(xiii) entered into or amended any purchase or sale contract outside the
ordinary course of business;
(xiv) suffered any amendment, termination, suspension or revocation of,
any Governmental Permit;
(xv) adopted any Employee Plan or amended or modified any already
existing Employee Plan;
(xvi) amended its Memorandum of Association or its Articles of
Association; or
(xvii) manufactured inventory in excess of its expected needs; or
(xviii) where applicable, agreed to do any of the foregoing.
Section 5.8. Taxes.
-----
(a) GNB or its shareholders have accurately prepared and timely filed
(including all extensions) all Tax Returns required to be filed by such entity.
All such Tax Returns have been prepared in compliance with applicable
Requirements of Law and are true and correct and properly reflect the Taxes due
for the periods covered thereby.
(b) All Taxes due and payable by Seller have been properly paid.
(c) Except as disclosed in Schedule 5.8, neither GNB nor its shareholders
------------
have waived any law or regulation fixing, or consented to the extension of, any
period of time for assessment of any Taxes which waiver or consent is currently
in effect nor been requested or been granted an extension of time for filing any
Tax Return which has not yet been filed.
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<PAGE>
(d) Except as disclosed in Schedule 5.8, there are no material elections,
------------
consents or agreements with tax authorities other than those reflected on tax
forms filed by GNB or its shareholders with tax authorities.
(e) Except as disclosed in Schedule 5.8, GNB is not (and never has been) a
------------
party to any tax sharing agreement, and has not assumed the tax liability of any
other Person under contract.
(f) There are no Encumbrances on any of the assets of GNB with respect to
Taxes, other than liens not yet due and payable or for Taxes that are being
contested in good faith through appropriate proceedings and for which
appropriate reserves have been established.
(g) Except as set forth on Schedule 5.8, no deficiency or proposed
----
adjustment (which has not settled or otherwise resolved) for any amount of Tax
has been proposed, asserted or assessed by any taxing authority against GNB.
(h) Except as set forth on Schedule 5.8, there is no action, suit,
------------
assessment, taxing authority proceeding or audit now in progress, pending or, to
the Knowledge of Seller, threatened against or with respect to GNB.
(i) Except as set forth on Schedule 5.8, no claim has ever been made by a
------------
taxing authority in a jurisdiction where GNB, respectively, do not file Tax
Returns that such entity is or may be subject to Taxes assessed by such
jurisdiction.
(j) Except as set forth on Schedule 5.8, GNB will not be required (A) as a
------------
result of a change in method of accounting for a taxable period ending on or
prior to the Closing Date, to include any adjustment in taxable income for any
taxable period (or portion thereof) ending after the Closing Date, (B) as a
result of any Requirement of Law relating to taxation matters to include any
item of income in, or exclude any item of deduction from, taxable income for any
taxable period (or portion thereof) ending after the Closing Date, (C) as a
result of any Requirement Law relating to taxation matters, to include any item
of income in taxable income for any taxable period (or portion thereof) ending
after the Closing Date or (D) any installment sale made or prepaid income
attributable to a taxable period ending on or prior to the Closing Date.
(k) Except as set forth on Schedule 5.8, GNB has no obligation or liability
------------
for the payment of Taxes of any other Person, including, but not limited to the
following, a liability of GNB for the payment of any Tax arising (A) as a result
of being (or ceasing to be) a member of any Affiliated Group (or being included
(or required to be included) in any Tax Return relating thereto), (B) as a
result from any expressed or implied obligation to indemnify another person, and
(C) as a result from GNB succeeding to the Tax liability of any other person as
a successor, transferee or otherwise.
Section 5.9. Title to Assets. GNB is the exclusive and absolute owner
---------------
of and has good title to; or a valid leasehold interest to, all of the personal
property in India reflected in the June 30, 1999 Balance Sheet (other than the
property in India disposed of since the date of the June 30, 1999 Balance Sheet
in the ordinary course of business for fair value) in the amounts and categories
reflected therein, and all personal property in India acquired after the date of
the June
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<PAGE>
30, 1999 Balance Sheet, free and clear of all Encumbrances, except for:
(a) Permitted Encumbrances; (b) the lien of current taxes not yet due and
payable and (c) other exceptions disclosed in Schedule 5.9. Except as disclosed
------------
in Schedule 5.9, the personal property of GNB that is utilized in the operation
------------
of GNB's business is usable in the ordinary course of GNB's business and
conforms to all applicable statutes, ordinances and regulations relating to its
construction, use and operation, except where such nonconformity is not likely
to have a Material Adverse Effect.
Section 5.10. Real Property. GNB does not own any real property.
-------------
Schedule 5.10 sets forth a complete and accurate list, including a brief
-------------
description of the material terms of each lease or similar agreement under which
GNB is lessee of, or holds, or occupies, or operates, any real property owned by
any third Person (the "Leased Real Property"). GNB has good and valid leasehold
in all of the Leased Real Property leased by it, free and clear of all
Encumbrances except for Permitted Encumbrances. The occupation, possession and
use of the Leased Real Property by GNB has not been disturbed and, to the
Knowledge of Seller, no claim has been asserted or threatened which is adverse
to the rights of GNB to the continued occupation, possession and use of the
Leased Real Property, as currently utilized.
Section 5.11. Personal Property. Schedule 5.11 contains a list of all
----------------- -------------
machinery, equipment and vehicles owned by GNB having an original cost of Four
Million Four Hundred Sixty Thousand Indian Rupees (INR4,460,000) or more.
Section 5.12. Personal Property Leases. Schedule 5.12 contains a brief
------------------------ -------------
description of each lease or other agreement or right under which GNB is lessee
of, or holds or operates, any machinery, equipment or vehicle owned by a third
Person, except those which are terminable by GNB without cost or penalty on 30
days' or less notice or which provide for annual rentals of less than Four
Million Four Hundred Sixty Thousand Indian Rupees (INR4,460,000).
Section 5.13. Governmental Permits.
--------------------
(a) Except as disclosed in Schedule 5.13(A), GNB owns, holds or possesses
-----------------
all material licenses, franchises, permits, privileges, immunities, approvals
and other authorizations from a Governmental Body which are necessary to entitle
GNB to own or lease, operate and use its assets and conduct its operations
substantially as currently operated (herein collectively called "Governmental
Permits"). Notwithstanding the foregoing, Governmental Permits required under
Environmental Laws are addressed solely in Section 5.19(B).
---------------
(b) Except as set forth in Schedule 5.13(B): (i) GNB has fulfilled and
----------------
performed its obligations under each of the Governmental Permits, except for
such nonfulfillment or nonperformance which is not likely to have a Material
Adverse Effect; and (ii) no written notice of cancellation, revocation,
suspension or default or of any dispute concerning any Governmental Permit has
been received by GNB and, to the Knowledge of Seller, there is no basis for the
issuance of such notice except as a result of the consummation of the
transactions contemplated hereby or except as is not likely to have a Material
Adverse Effect.
Section 5.14. Intellectual Property.
---------------------
-14-
<PAGE>
(a) Except as set forth on Schedule 5.14(A), there are no material patents,
----------------
patent applications, trademarks or trademark registrations, service marks or
service mark registrations, trade names, Internet domain names, corporate names,
or any applications to register any of the foregoing; copyrights; or any license
to or from any Person with respect to any of the foregoing, used by GNB or
otherwise relating to the Business substantially as currently conducted by GNB
(collectively, the "Intellectual Property").
(b) Each item constituting part of the Intellectual Property has been, to
the extent indicated in Schedule 5.14(B), duly registered, filed or issued, as
----------------
the case may be, as is indicated in Schedule 5.14(B), and such registration,
----------------
filings and issuances remain in full force and effect.
(c) Except as set forth in Schedule 5.14(C), GNB owns and possesses all
----------------
right, title and interest in and to the Intellectual Property, and GNB has not
received written notice of any claim by any Person contesting the validity,
enforceability, use, or ownership of any Intellectual Property, patent
disclosures or inventions. Schedule 5.14(C), sets forth all technology
----------------
(including Intellectual Property) owned by third parties and used by GNB. To
the Knowledge of Seller, except as set forth in Schedule 5.14(C), no Person is
----------------
infringing on the rights of GNB with respect to any Intellectual Property. GNB
uses all reasonable efforts to protect its trade secrets.
Section 5.15. Employees. Except as described in Schedule 5.15, GNB is
--------- -------------
not required to contribute to any employee plan on behalf of its employees and
no employees of GNB are covered under any employee plan. Except as set forth in
Schedule 5.15, GNB is not a party to or bound by any collective bargaining
-------------
agreement, employment agreement, severance agreement, deferred compensation
agreement, confidentiality agreement or covenant not to compete which is
material to its business.
Section 5.16. Employee Relations.
------------------
(a) Except as set forth in Schedule 5.16(A): (i) GNB is in compliance with
----------------
all applicable Requirements of Law with respect to labor and employment; (ii)
GNB has not engaged in any unfair labor practice or illegally discriminated with
regard to any aspect of employment on the basis of any legally prohibited
category or classification; and (iii) with respect to employees and former
employees who rendered services to, or participated in conduct or activities in
connection with GNB, GNB is not liable for any arrears of wages, salaries or
other payments.
(b) Except as set forth in Schedule 5.16(B), there are no: (i) unfair labor
----------------
practice or discrimination charges or complaints pending or, to the Knowledge of
Seller, threatened against GNB before any Indian federal, state or local agency
or authority; (ii) complaints, charges or citations pending or, to the Knowledge
of Seller, threatened against GNB under any Indian state or local occupational
safety act or regulation; (iii) to the Knowledge of Seller, labor strike,
stoppage, or material controversies pending or threatened between GNB and its
employees or any labor union or organization representing or claiming to
represent such employees' interests; or (iv) collective bargaining agreement
currently being negotiated by GNB with respect to its employees.
Section 5.17. Commercial Contracts. Except as set forth in Schedule 5.17,
-------------------- -------------
GNB is not a party to or bound by:
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<PAGE>
(a) any consignment, distributor, dealer, manufacturer's representative,
sales agency, advertising representative or advertising or public relations
contract or agreement which is reasonably anticipated by GNB to involve the
payment of more than Four Million Four Hundred Sixty Thousand Indian Rupees
(INR4,460,000) per year;
(b) any contract, agreement or commitment regarding the sale or other
disposition of products or services by GNB, or for the purchase of raw
materials, products or services by GNB, which is reasonably anticipated by GNB
to involve the receipt or payment of more than Four Million Four Hundred Sixty
Thousand Indian Rupees (INR4,460,000) per year;
(c) any guarantee or indemnification agreement for the benefit of any
Person made or given outside of the ordinary course of business;
(d) any Tax sharing agreement;
(e) any contract, agreement or commitment which provides for the incurrence
by GNB of indebtedness for borrowed money or capitalized lease obligations;
(f) any partnership or joint venture agreement;
(g) any agreement, contract or commitment relating to capital expenditures
of an amount or value in excess of Four Million Four Hundred Sixty Thousand
Indian Rupees (INR4,460,000);
(h) any agreement that restricts or purports to restrict the business
activity of GNB or limits GNB's ability to engage in any line of business or
compete with any Person;
(i) any material license of software or other intellectual property; or
(j) any agreement that was not entered into in the ordinary course of GNB's
business consistent with past practice and that involves annual payments in
excess of Four Million Four Hundred Sixty Thousand Indian Rupees (INR4,460,000).
Section 5.18. Status of Contracts. Except as set forth in Schedule 5.18
------------------- -------------
hereto: (a) each of the leases, contracts and other agreements of GNB listed in
Schedules 5.10, 5.12, 5.14, 5.15 and 5.17 (collectively, the "GNB Agreements")
-------------- ---- ---- ---- ----
constitutes a legal, valid and binding obligation of GNB (subject to bankruptcy,
insolvency, reorganization, moratorium and similar laws of general application
relating to or affecting creditors' rights and to general equity principles) and
is in full force and effect; and (b) GNB is not, nor, to the Knowledge of
Seller, alleged to be, in material breach of, or material default under, any of
the GNB Agreements nor, to the Knowledge of Seller, is any other party thereto
in such breach or default and, to the Knowledge of the Seller, no event has
occurred which the notice or lapse of time would constitute such a breach or
default or permit termination, modification or acceleration of any of the GNB
Agreements.
Section 5.19. Environmental Matters. Notwithstanding any other provision
---------------------
of this Agreement, this Section 5.19 contains the only representations or
------------
matters, and no other statement in this Agreement, in any Seller Ancillary
Agreement or in any other document or information delivered or given to or
received by or on behalf of Buyer in connection with the transactions
contemplated
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<PAGE>
by this Agreement shall be deemed to be a representation or
warranty relating to Environmental Law or environmental matters.
(a) Except as set forth in Schedule 5.19(A), GNB is in compliance with all
----------------
applicable Environmental Laws except for such noncompliance is as not likely to
have a Material Adverse Effect.
(b) Except as set forth on Schedule 5.19(B), GNB owns, holds or possesses all
----------------
material Governmental Permits required under Environmental Laws necessary for
the occupation and use of the Leased Real Property and the operations of its
business substantially as currently conducted. All Governmental Permits
required under Environmental Laws that are currently owned, held, or possessed
by GNB are listed in Schedule 5.19(B). Except as disclosed on Schedule 5.19(B),
---------------- ----------------
GNB is in compliance and has for the past three (3) years complied, with all
Governmental Permits except for such noncompliance as is not likely to have a
Material Adverse Effect. Seller shall make commercially reasonable efforts to
transfer or cause to be transferred to Buyer all such Governmental Permits at
the Closing, including (i) giving notice to any Indian federal, state or local
regulatory agencies with respect to the change in ownership or control or
responsible officials at the Leased Real Property, (ii) completing and
submitting notices of termination, and (iii) to the extent not transferred by
the Closing Date, shall cooperate fully with Buyer in obtaining the transfer of
such Governmental Permits as promptly thereafter as possible.
(c) Except as set forth in Schedule 5.19(C), GNB is not subject to any pending
----------------
or, to the Knowledge of Seller Regarding Environmental Matters, threatened
investigation by, order from, claim by, statutory request for information from
or continuing agreement with any Person respecting: (i) any violation of
Environmental Law or Governmental Permits, (ii) any Remedial Action, or (iii)
any claim of Losses and Expenses, in each case arising from the release of a
Contaminant or the presence of any Contaminant onto or from the Leased Real
Property.
(d) Except as set forth in Schedule 5.19(D), GNB is not subject to any pending
----------------
or, to the Knowledge of Seller Regarding Environmental Matters, threatened
judicial or administrative investigation, proceeding, order, notice of
violation, judgment, decree or settlement with any continuing obligation
alleging or relating to a violation of or liability under any Environmental Law
or Governmental Permits.
(e) Except as set forth in Schedule 5.19(E), GNB has not received written
----------------
notice under any Environmental Law to the effect that it is or may be liable to
any Person as a result of the generation, storage, transportation, Release,
arrangement for disposal or disposal of or Release of any Contaminants on, at or
in any Leased Real Property.
(f) Except as set forth in Schedule 5.19(F), GNB has not reported a Release
----------------
pursuant to an Environmental Law or filed a notice with respect to the
contamination of land or the generation of hazardous wastes that is required to
be filed pursuant to an Environmental Law, and, to the Knowledge of the Seller
Regarding Environmental Matters, there has not been any disposal by GNB or
Release of any Hazardous Materials on, at, in or beneath any Leased Real
Property.
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<PAGE>
(g) To the Knowledge of Seller Regarding Environmental Matters, there are no
underground storage tanks (whether active or abandoned) located at, in or
beneath the Leased Real Properties.
(h) Seller has made available to Buyer true and correct copies of all material
environmental audits and consultant's reports relating to the past and current
operations, properties and facilities of GNB or any of their respective
predecessors, which are in its possession or under its reasonable control.
(i) To the Knowledge of Seller Regarding Environmental Matters, the sites
identified in the Disclosure Schedules constitute, and as the Disclosure
Schedules are updated by Seller from time to time in its sole discretion prior
to the Closing Date, will constitute all PRP Sites as of the Closing Date.
(j) Notwithstanding any other provision of this Agreement, no representations
and warranties are made or shall be deemed to apply to the PRP Sites.
Section 5.20. Insurance. Seller has, and at all times has had, valid
---------
insurance coverage in respect of the Business against all risks normally insured
against by Persons in the same industry, underwritten by one or more well-
established and reputable insurers or adequately capitalized Affiliates.
Schedule 5.20 contains a list of all insurance policies (specifying (i) the
-------------
insurer, (ii) the amount of coverage, (iii) the type of insurance, (iv) the
policy number and (v) any currently pending claims thereunder) maintained by or
on behalf of GNB on its properties, assets, business or personnel. GNB has not
failed to give any notice or present any claim under any insurance policy in due
and timely fashion. All premiums due under the policies listed on Schedule 5.20
-------------
have been paid or accrued for on the Financial Statements and all such policies
are in full force and effect and no notice of disallowance of any claim under
any insurance policy, whether or not currently in effect, has been received by
GNB. Other than (i) claims properly made against GNB in the ordinary course of
business pursuant to insurance programs written on a retrospective rating basis,
(ii) claims made as a result of premium audits relating to expired insurance
policies, (iii) deductible claims relating to losses that are incurred but not
reported, or losses that are known but not finally resolved, GNB has no
liability for or exposure to any premium expenses for expired policies and there
are not current claims by GNB under any such policy as to which coverage has
been questioned, denied or disputed by the underwriters of such policies.
Section 5.21. Product Warranties. GNB's unexpired, express product
------------------
warranties with respect to products that GNB manufacturers or sells or that it
has heretofore manufactured or sold are described in Schedule 5.21. Except as
-------------
set forth in Schedule 5.21, GNB has not received written notice of any claim
-------------
against GNB, based on any product warranty (except claims outstanding as of June
30, 1999, not exceeding Eight Million Nine Hundred Twenty Thousand Indian Rupees
(INR8,920,000) in the aggregate).
Section 5.22. Bank Accounts, Guarantees and Powers. Schedule 5.22 sets forth
------------------------------------ -------------
a list of all accounts, borrowing resolutions and deposit boxes maintained by
GNB at any bank or other financial institution and the names of the person
authorized to effect transactions in such accounts and pursuant to such
resolutions and with access to such boxes.
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<PAGE>
Section 5.23. Accounts and Records. All the accounts, books, ledgers and
--------------------
financial and other material records of the Business have been maintained
accurately and in accordance with generally accepted accounting principles.
Section 5.24. No Misrepresentation. To the Knowledge of Seller, the
--------------------
representations and warranties of Seller contained in this Agreement, the
Disclosure Schedules attached hereto, and the certificates and other instruments
delivered by Seller pursuant hereto, do not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
contained herein or therein not misleading.
Section 5.25. Sufficiency of Assets. GNB owns or leases or has the right to
---------------------
use all Leased Real Property, buildings, machinery, equipment, intellectual
property and other assets necessary for the conduct of the Business.
Section 5.26. Powers of Attorney. Except as set forth in Schedule 5.26, as
------------------ -------------
of Closing, there will not be any outstanding powers of attorney executed on
behalf of GNB other than with respect to the filing of taxes, customs and
similar matters and intellectual property registrations and carrying on the
business in ordinary course.
ARTICLE 6.
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Seller as follows.
Section 6.1. Organization. Buyer is a corporation duly organized, validly
------------
existing and is duly authorized under the laws of Singapore.
Section 6.2. Power and Authority. Buyer has the full corporate power and
-------------------
authority to execute and deliver this Agreement and the Buyer Ancillary
Agreements, to perform its obligations hereunder and thereunder. Buyer's
execution, delivery and performance of this Agreement has been duly authorized
and approved by all necessary corporate action.
Section 6.3. Agreement Binding. This Agreement has been and the Ancillary
-----------------
Agreements will be duly executed and delivered by Buyer, and assuming due
authorization, execution and delivery by Seller, is and will be the legal, valid
and binding obligations of Buyer enforceable in accordance with their respective
terms, subject to general principles of equity and except as enforceability may
be limited by applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other similar laws of general application relating
to creditors' rights generally.
Section 6.4. Absence of Conflicts. The execution, delivery and performance
--------------------
of this Agreement and the Buyer Ancillary Agreements and the consummation of the
transactions contemplated hereby and thereby, will not:
(a) conflict with, result in a breach of the terms, conditions or provisions
of, or constitute a default, an event of default or an event creating rights of
acceleration, termination or
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<PAGE>
cancellation, result in termination of or result in the creation or imposition
or crystallisation of any Encumbrance under: (i) any term or provision of the
organizational documents of Buyer, (ii) any note, instrument, contract,
agreement, mortgage, indenture, lease, license, franchise, permit or other
commitment to which Buyer is a party or by which it or any of its assets are
bound, (iii) any Court Order, or (iv) any Requirements of Law; except in each
case, for any of the foregoing which, individually or in the aggregate, is or
are not likely to have a material adverse effect on Buyer or its business taken
as a whole or hinder or impair the consummation of the transactions contemplated
hereby; or
(b) require the approval, consent, authorization or act of, or the making by
Buyer of any declaration, notification, filing or registration with, any Person,
except in each case, for any of the foregoing which, individually or in the
aggregate, if not taken, is or are not likely to have a material adverse effect
on the financial condition of Buyer or materially hinder or impair the
consummation of the transactions contemplated hereby.
Section 6.5. No Litigation. There is no Action pending or, to the knowledge of
-------------
Buyer, threatened which questions the legality or propriety of the transactions
contemplated by this Agreement or the Buyer Ancillary Agreements or which would
impair the consummation of the transactions contemplated hereby, and there has
not been, to the knowledge of Buyer, any claim asserted by any Person that could
lead to such an Action.
Section 6.6. Investment Representation. Buyer is acquiring the Shares for
-------------------------
investment and not with a view to the distribution thereof or dividing all or
any part of its interest therein with any other Person.
Section 6.7. No Advisor. Neither Buyer nor any Person acting on its behalf
----------
has retained any advisor, broker, investment banker or financial advisor in
connection with this Agreement or any transaction contemplated hereby for which
Seller may be liable.
Section 6.8. No Misrepresentation. To the knowledge of Buyer, the
--------------------
representations and warranties of Buyer contained in this Agreement, and the
certificates and other instruments delivered by Buyer pursuant hereto do not
include any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements made not misleading.
ARTICLE 7.
ACTION PRIOR TO THE CLOSING DATE
Buyer and Seller covenant and agree to take the following actions between the
date hereof and the Closing Date:
Section 7.1. Preserve Accuracy of Representations and Warranties. Buyer and
---------------------------------------------------
Seller shall, and Seller shall cause GNB to, refrain from taking any action that
would render any representation or warranty contained in this Agreement
inaccurate as of the Closing Date. Buyer and Seller shall promptly notify the
other of any Action, investigation, or other proceeding, that shall be
instituted or threatened against such party or in the case of Seller, against
GNB to
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<PAGE>
restrain, prohibit or otherwise challenge the legality of any transaction
contemplated by this Agreement.
Section 7.2. Governmental Approvals. During the period prior to the
----------------------
Closing Date, Seller and Buyer shall, and Seller shall cause GNB to, act
diligently and reasonably, and shall cooperate with each other, to secure any
consents and approvals of any Governmental Body required to be obtained in order
to effect the consummation of the transactions contemplated by this Agreement
and preserve for the benefit of GNB its rights under permits and agreements.
Section 7.3. Operations Prior to the Closing Date.
------------------------------------
(a) During the period prior to the Closing Date, Seller shall cause GNB to
operate and carry on its operations only in the ordinary course and
substantially as operated prior to the date hereof.
(b) Notwithstanding Section 7.3(a), except as set forth in Schedule 7.3(B) and
-------------- ---------------
expressly contemplated by this Agreement, or with the express prior consent of
Buyer, Seller shall not take and shall cause GNB not to take any of the actions
set out in Section 5.7(b); provided however, notwithstanding anything to the
--------------
contrary herein, Seller shall not make, and since May 9, 2000 has not made, any
capital expenditure in excess of the local currency equivalent of US$250,000
(other than those permitted by Section 7.3(b) of the Principal US Agreement)
without the prior written approval of Buyer.
Section 7.4. Notification of Changes. Each of Seller and Buyer shall
-----------------------
promptly notify the other of any event that causes any representation or
warranty given by such party in Articles 4, 5 and 6 to become untrue.
-------------------
Section 7.5. Satisfaction of Condition. Buyer and Seller shall use their
-------------------------
respective reasonable endeavors to secure the satisfaction of the conditions to
Closing contained in Section 8.2(g), provided that nothing in this Section 7.5
-------------- -----------
shall oblige Seller to agree to any variation in the terms of this Agreement or
the transactions contemplated thereby.
Section 7.6. Intercompany Agreements. All Intercompany Agreements and
intercompany accounts payable and receivable, except for those set out in
Schedule 7.6, shall be terminated or canceled at Closing.
------------
Section 7.7. Preemptive Rights. All Preemptive Rights existing under any of
-----------------
GNB's organizational documents shall be waived at Closing.
Section 7.8. Insurance Matters.
-----------------
(a) Seller agrees that with respect to any occurrence-based policies as to
which GNB is named insured or named as additional insured parties (the
"Insurance Policies"), it shall fully cooperate with Buyer (at Buyer's expense)
in taking all steps necessary to file and process any insurance claims for any
claims made after the Closing Date that relate to any acts, events or
occurrences prior to the Closing Date relating to the Business (the "Insured
Claims") that are insured under such policies. To the extent that any proceeds
relating to the Insured Claims are
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<PAGE>
received by Seller or any of Seller's Affiliates, Seller agrees to pay over such
proceeds promptly to Buyer.
(b) Buyer agrees that it shall pay any retrospective premium charge or
liability owed by Seller under the terms of such Insurance Policies (including
amounts owed under premium audits), subject to the following conditions (i)
Buyer shall only be obligated to pay such portion of a retrospective premium
charge or liability to the extent it exclusively relates to the Business, (ii)
Buyer shall have the right, upon reasonable request made to Seller, to audit any
retrospective premium policies and charges thereunder, and to object to any
proposed charge on the basis of such audit (in which case any dispute between
Seller and Buyer (not including any dispute between Buyer and any insurer) shall
be resolved by binding arbitration) and (iii) Buyer shall not be required to pay
any retrospective charge or liability with respect to any Insurance Policies to
the extent the overall maximum premium owed by all of the insured parties
thereon has previously been paid.
(c) Buyer acknowledges and agrees that neither Buyer nor GNB will have, after
the Closing Date, any rights under, and will not assert claims against, any
insurance policies insuring or naming Pacific Chloride, Inc., or any of its
predecessors or successors, as an insured or additional insured, nor will Buyer
or GNB assert rights to any settlements of claims under such policies.
Section 7.9. General. Each of the parties will use its reasonable best
-------
efforts to take all action and to do all things necessary, proper, or advisable
in order to consummate and make effective the transactions contemplated by this
Agreement (including satisfaction, but not waiver, of the closing conditions set
forth below).
Section 7.10. Preservation of Business. Each of the parties shall, and
------------------------
Seller shall cause GNB to, use reasonable best efforts to keep their businesses
and properties substantially intact, including their present operations,
physical facilities, working conditions, and relationships with lessors,
licensors, suppliers, customers and employees.
ARTICLE 8.
CONDITIONS TO CLOSING
Section 8.1. Conditions to the Obligations of the Buyer. The obligations of
------------------------------------------
Buyer under this Agreement shall, at the option of Buyer, be subject to the
satisfaction, on or prior to the Closing Date, of each of the following
conditions:
(a) No Misrepresentation or Breach of Covenants and Warranties. Seller shall
----------------------------------------------------------
have complied in all material respects with its covenants and agreements herein
and in the Coordinating Agreement. Each of the representations and warranties
of Seller contained in this Agreement and each of the Seller Ancillary
Agreements shall be true and correct in all material respects on the Closing
Date as though made on the Closing Date (except with respect to those
representations and warranties that speak as to a particular date or time, which
only need to be true and correct as of such date or time), except for changes
therein specifically permitted by this Agreement or resulting from any
transaction expressly consented to in writing by Buyer; and there shall have
been delivered to Buyer a closing certificate in a form reasonably satisfactory
to
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<PAGE>
the Buyer to such effect, dated the Closing Date, signed by the President or
Vice President of Seller;
(b) Closing Documents. Buyer shall have received from Seller the agreements
-----------------
and closing documents contemplated by Section 3.2.
-----------
(c) Necessary Approvals. The Seller and the Buyer shall have received all
-------------------
approvals and actions of or by all Governmental Bodies and any other Person
which are necessary to complete the transactions contemplated hereby and by the
ROW Agreements and preserve for the benefit of GNB its rights under the GNB
Agreements which are material to the operation of the Business.
(d) No Suit. No Action by any Governmental Body shall be pending or
-------
threatened questioning the legality of this Agreement or the consummation of the
transactions contemplated hereby in whole or in part.
(e) No Restraint. No Court Order shall have been issued and be in effect
------------
which restrains or prohibits any material transaction contemplated hereby.
(f) Principal US Agreement. The transactions contemplated by the Principal US
----------------------
Agreement shall have closed simultaneously with the Closing.
(g) No Material Adverse Change. On the Closing Date, there shall not be a
--------------------------
Material Adverse Effect.
(h) Coordinating Agreement. All conditions to Exide Corporation's obligations
----------------------
set forth in Sections 5.5, 5.6 and 5.7(a) of the Coordinating Agreement shall
have been satisfied.
Notwithstanding the failure of any one or more of the foregoing conditions,
Buyer may, at its option, proceed with the Closing without satisfaction, in
whole or in part, of any one or more of such conditions and without written
waiver; provided however, that in so proceeding with the Closing, and
notwithstanding any other provision of this Agreement, Buyer shall be deemed to
have waived any such failure and any rights or remedies it may have against
Seller by reason of such failure.
Section 8.2. Conditions to the Obligations of Seller. The obligations of
---------------------------------------
Seller under this Agreement shall, at the option of Seller, be subject to the
satisfaction, on or prior to the Closing Date, of each of the following
conditions:
(a) No Misrepresentation or Breach of Covenants and Warranties. Buyer shall
----------------------------------------------------------
have complied in all material respects with its covenants and agreements herein
and in the Coordinating Agreement. Each of the representations and warranties
of the Buyer contained in this Agreement and the Buyer Ancillary Agreements
shall be true and correct in all material respects on the Closing Date as though
made on the Closing Date (except with respect to those representations and
warranties that speak as to a particular date or time, which only need to be
true and correct as of such date or time), except for changes therein
specifically permitted by this Agreement or resulting from any transaction
expressly consented to in writing by Seller; and
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<PAGE>
there shall have been delivered to Seller a closing certificate in a form
reasonably satisfactory to the Seller to such effect, dated the Closing Date and
signed by the President or Vice President of the Buyer;
(b) Closing Documents. Seller shall have received from Buyer the agreements
-----------------
and closing documents contemplated by Section 3.3.
-----------
(c) Payment of Purchase Price. Buyer shall have tendered payment of the
-------------------------
Purchase Price.
(d) Necessary Approvals. Seller and Buyer shall have received all approvals
-------------------
and actions of or by all Governmental Bodies and any other Person which are
necessary to consummate the transactions contemplated hereby and by the ROW
Agreements and preserve for the benefit of Buyer its rights under agreements
which are material to the operation of its business;
(e) No Suit. No Action by any Governmental Body shall be pending or
-------
threatened questioning the legality of this Agreement or the consummation of the
transactions contemplated hereby in whole or in part.
(f) No Restraint. No Court Order shall have been issued and be in effect
------------
which restrains or prohibits any material transaction contemplated hereby.
(g) Principal US Agreement. The transactions contemplated by the Principal US
----------------------
Agreement shall have closed simultaneously with the Closing.
(h) No Material Adverse Change. On the Closing Date, there shall have been no
--------------------------
event, occurrence or condition (other than as a result of general economic
conditions or events affecting the automotive and industrial battery business as
a whole) which has, or could reasonably be expected to have, a material adverse
effect on the financial condition, assets, results or operations, businesses, or
operations of Buyer taken as a whole.
(i) Coordinating Agreement. All conditions to Pacific Dunlop Holdings (USA)
----------------------
Inc.'s obligations set forth in Sections 5.5 and 5.7(b) of the Coordinating
Agreement shall have been satisfied.
Notwithstanding the failure of any one or more of the foregoing conditions,
Seller may, at its option, proceed with the Closing without satisfaction, in
whole or in part, of any one or more of such conditions and without written
waiver; provided however, that in so proceeding with the Closing, and
notwithstanding any other provision of this Agreement, Seller shall be deemed to
have waived any such failure and any rights or remedies it may have against
Buyer by reason of such failure.
ARTICLE 9.
TERMINATION
Section 9.1. Termination. Anything contained in this Agreement to the
-----------
contrary notwithstanding, this Agreement may be terminated at any time prior to
the Closing Date:
(a) by the mutual written consent of Buyer and Seller;
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<PAGE>
(b) by Buyer or Seller if the Closing shall not have occurred on or before
December 31, 2000 unless: (i) all conditions to Closing have previously been
satisfied or waived, and (ii) the Closing has not then occurred solely because
the date for Closing specified in Section 3.1 has not yet occurred and unless
-----------
such failure to close is due primarily to the breach by the party seeking
termination of its agreements, representations or warranties contained herein;
(c) by Buyer in the event of any breaches in any material respect by Seller of
Seller's agreements, covenants, representations or warranties contained herein,
and which Seller has failed to remedy or cure within twenty one (21) days after
receipt of notice from Buyer requesting that such breaches be remedied or cured;
(d) by Seller in the event of any material breaches by Buyer of Buyer's
agreements, covenants, representations or warranties contained herein, which
Buyer has failed to remedy or cure within twenty one (21) days after receipt of
notice from Seller requesting that such breaches be remedied or cured; or
(e) by Buyer or Seller if any court shall have issued a Court Order or if any
Governmental Body shall have issued a decree or ruling or taken any other action
permanently restraining, enjoining or otherwise prohibiting the consummation of
the transactions contemplated hereby.
Section 9.2. Notice of Termination. Any party desiring to terminate this
---------------------
Agreement pursuant to Section 9.1 shall give written notice of such termination
-----------
to the other parties to this Agreement.
Section 9.3. Effect of Termination. In the event that this Agreement shall be
---------------------
terminated pursuant to this Article 9, all further obligations of the parties
---------
under this Agreement (other than Sections 12.2, 12.8, and 12.11 of this
------------- ---- -----
Agreement and Sections 5.2, 5.3 and 5.4 of the Coordinating Agreement) shall be
------------ --- ---
terminated without further liability of any party to the other, provided that
nothing herein shall relieve either party from liability for its willful breach
of this Agreement.
ARTICLE 10.
EXCLUSIVITY OF REMEDY
Section 10.1. Indemnification by Seller. Seller's sole and exclusive
-------------------------
indemnification obligations under this Agreement are set forth in the
Coordinating Agreement.
Section 10.2. Indemnification by Buyer. Buyer's sole and exclusive
------------------------
indemnification obligations under this Agreement are set forth in the
Coordinating Agreement.
Section 10.3. Exclusivity of Remedy. Except as provided in Section 9.3, with
--------------------- -----------
respect to any breach by either party of its representations, warranties,
covenants, or agreements in this Agreement, the respective Buyer Ancillary
Agreements or Seller Ancillary Agreements, or the ROW Agreements and the
transactions contemplated hereby and thereby, the sole and exclusive remedy of
the other party (in contract, tort, for contribution, under Requirements of Law,
or otherwise) shall be the indemnification provided in the Coordinating
Agreement. In view of this exclusivity of remedy provision, Buyer and Seller
covenant and agree for themselves and their
-25-
<PAGE>
respective Affiliates that they will not bring, maintain, join or prosecute any
Action or other proceeding against the other or its Affiliates for breach of
this Agreement or indemnity therefor except as provided in the Coordinating
Agreement.
ARTICLE 11.
ADDITIONAL AGREEMENTS OF THE PARTIES
Section 11.1. Taxes.
-----
(a) Neither Buyer nor Seller shall request a Tax audit of GNB and Buyer shall
not, without the prior written consent of Seller, extend any statute of
limitations with respect to GNB Taxes arising prior to the Closing.
Notwithstanding the provisions of Section 4.4 of the Coordinating Agreement,
-----------
Seller shall have the sole right to control any Tax audit or administrative or
court proceeding involving GNB relating to periods ending at the time of or
before the Closing, and to employ counsel of its choice at its expense, and
neither Buyer nor any of its Affiliates may settle any Tax claim for any taxable
year or period ending at or before the time of the Closing (or for the portion
of any taxable year or period ending on the Closing) without the prior written
consent of Seller, which consent may be withheld in Seller's sole discretion.
(b) For all taxable periods ending on or before the Closing Date, Seller shall
cause GNB to file any income tax return required under Indian law. Buyer shall
have the right to review and comment on any such Tax Returns prepared by Seller.
Except to the extent reflected as a liability on the Final Closing Date Balance
Sheet, Seller shall pay all Taxes that may be due after the Closing Date and are
allocable to the period prior to and including the Closing Date. In order
appropriately to apportion any of these Taxes relating to a period that includes
(but that would not, but for this section, close on) the Closing Date, the
parties hereto will, to the extent permitted by applicable law, elect with the
relevant taxing authorities to treat for all purposes the Closing Date as the
last day of a taxable period of GNB, and such period shall be treated as a
"Short Period" and a "Pre-Closing Period" for purposes of this Agreement. In
any case where applicable law does not permit the Closing Date to be treated as
the last day of a Short Period, then for purposes of this Agreement, the portion
of such Taxes that is attributable to the operations of GNB for such Interim
Period (as defined below), shall be (i) in the case of Taxes that are not based
on income or gross receipts, the total amount of such Taxes for the period in
question multiplied by a fraction, the numerator of which is the number of days
in the Interim Period, and the denominator of which is the total number of days
in the entire period in question, and (ii) in the case of Taxes that are based
on income or gross receipts, the Taxes that would be due with respect to the
Interim Period, if such Interim Period were a Short Period. "Interim Period"
means with respect to any Taxes imposed on GNB on a periodic basis for which the
Closing Date is not the last day of a Short-Period, the period of time beginning
on the first day of the actual taxable period that includes (but does not end
on) the Closing Date and ending on and including the Closing Date. Buyer shall
cause GNB to furnish information to the Seller to allow Seller to satisfy its
obligations under this section in accordance with past custom and practice.
Buyer shall cause GNB to file income tax returns, or shall include GNB in its
combined or consolidated income tax returns, for all periods other than periods
ending on or before the Closing Date. GNB and Buyer shall consult and cooperate
as to any elections to be made on returns of GNB for periods ending on or before
the Closing Date.
-26-
<PAGE>
(c) Except to the extent reflected as a liability on the Final Closing Date
Balance Sheet, Seller shall be liable for and shall pay all Taxes (whether
assessed or unassessed) applicable to the sale of Shares or the operations of
GNB through the Closing Date and all Taxes attributable to the Interim Period
described in Section 11.1(b). Buyer shall be liable for and shall pay (i) all
---------------
Taxes reflected as a liability on the Final Closing Date Balance Sheet; and (ii)
all Taxes (whether assessed or unassessed) applicable to the operation of GNB
attributed to all periods beginning after the Closing Date.
(d) Notwithstanding Section 11.1(c), any Tax attributable to the sale,
---------------
transfer or delivery of the purchased Shares or the underlying assets of GNB,
including any stamp duty (but in no event including any income Tax or any other
Tax based on net income) shall be borne and paid in accordance with the
provisions of Section 5.1 of the Coordinating Agreement. Buyer and Seller agree
to timely sign and deliver such certificates or forms as may be necessary or
appropriate to establish an exemption from (or otherwise reduce), or file Tax
Returns with respect to, such Taxes.
(e) After the Closing, Seller and Buyer shall (and shall cause their
respective Affiliates to):
(i) make available to the other and to any taxing authority as reasonably
requested all information, records, and documents relating to GNB and
preserve the same until the expiration of any applicable statute of
limitations or extensions thereof;
(ii) provide timely notices to the other in writing of any pending or
threatened Tax audits or assessments or taxing authority proceedings
relating to GNB for taxable periods for which the other may have a
liability under this Section 11.1; and
------------
(iii) furnish the other with copies of all correspondence received from any
taxing authority in connection with any Tax audit or information
request or show cause notice with respect to any such taxable period.
(iv) Buyer and Seller further agree, upon request, to use their reasonable
best efforts to obtain any certificate or other document from any
governmental authority or any other Person as may be necessary to
mitigate, reduce or eliminate any Tax that could be imposed (including,
without limitation, with respect to the transactions contemplated
thereby).
(f) After the Closing, Buyer shall (and shall cause its Affiliates to) pay to
Seller any refunds of or credits for Taxes (net of any Taxes owed resulting from
such refund or credit) relating to GNB for periods ending on or before the
Closing Date, provided that no payment shall be due to Seller resulting from
refunds reflected on the Closing Date Balance Sheet.
ARTICLE 12.
GENERAL PROVISIONS
SECTION 12.1. Notices. Any notice, request, instruction or other document to
-------
be given hereunder shall be in writing and: (a) delivered personally; (b) sent
by Federal Express or other similarly reputable overnight courier; or (c)
transmitted by facsimile, according to the
-27-
<PAGE>
instructions set forth below. Such notices shall be sent to the following
addresses and/or facsimile numbers and shall be deemed given: (x) if delivered
personally, at the time delivered; (y) if sent by Federal Express or other
similarly reputable overnight courier, at the time sent, or (z) if transmitted
by facsimile, at the time when receipt is confirmed by the sending facsimile
machine.
If to Seller, to:
Pacific Dunlop Limited
Level 41
101 Collins Street
Melbourne, Victoria 3000
Australia
Attention: Managing Director
Facsimile: (613) 9270 7634
with a copy to:
Gardner, Carton & Douglas
321 N. Clark Street
Suite 3400
Chicago, Illinois 60610
United States of America
Attention: Mr. Robert J. Wilczek
Facsimile: 312-644-3381
If to Buyer, to:
c/o Exide Corporation
2901 Hubbard Road
Ann Arbor, Michigan 48105
United States of America
Attention: General Counsel
Facsimile: (734) 827-2575
with copies to:
Linklaters
9 Raffles Place
Republic Plaza #34-00
Singapore 048619
Attention: Stephen Bull
Facsimile: 011 65 438 3811
and
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<PAGE>
Kirkland & Ellis
200 East Randolph Drive
Chicago, Illinois 60601
United States of America
Attention: Mr. Carter W. Emerson, P.C.
Facsimile: 312-861-2200
or to such other address as such party may indicate by a notice delivered to the
other parties hereto in accordance with the provisions of this Section 12.1.
------------
Section 12.2. Confidential Information. Each party agrees that it will treat
------------------------
in confidence all documents, materials and other information which it shall have
obtained regarding any of the other parties during the course of the
negotiations leading to the consummation of the transactions contemplated hereby
(whether obtained before or after the date of this Agreement), the investigation
provided for herein and the preparation of this Agreement and other related
documents ("Confidential Information"), and, in the event the transactions
contemplated hereby shall not be consummated, each party will return to the
other party all copies of nonpublic Confidential Information which have been
furnished in connection therewith. Confidential Information shall not be
communicated to any third Person (other than the parties' respective counsel,
accountants, financial advisors, or environmental consultants). No party shall
use any Confidential Information in any manner whatsoever except solely for the
purpose of evaluating the proposed transaction. Notwithstanding the foregoing,
after the Closing, Buyer may use or disclose any Confidential Information
related to GNB. Seller shall not at any time after the Closing disclose any
Confidential Information relating to GNB. The obligation of each party to treat
Confidential Information in confidence shall not apply to any Confidential
Information which (i) is or becomes available to such party from a source other
than such party, (ii) is or becomes available to the public other than as a
result of disclosure by such party or its agents, (iii) is required to be
disclosed under applicable law or judicial process, but only to the extent it
must be disclosed, or (iv) as to which such party reasonably deems disclosure
necessary to obtain any of the consents or approvals contemplated hereby.
Section 12.3. No Public Announcement. Neither Buyer nor Seller shall,
----------------------
without the approval of the other party, issue any press release or other public
announcement concerning the transactions contemplated by this Agreement.
Notwithstanding the foregoing, either party may issue a press release or other
public announcement concerning the transactions contemplated by this Agreement
to the extent that such party or their Affiliates shall be so obligated by law,
or to comply with accounting, U.S. Securities and Exchange Commission, New York
Stock Exchange or Australian Stock Exchange disclosure obligations, provided
that such party shall be obligated to give the other party prior notice of such
press release or other public announcement if prior notice is commercially
feasible.
Section 12.4. Entire Agreement; Amendments. This Agreement, the Coordinating
----------------------------
Agreement, the ROW Agreements and the Exhibits and Schedules referred to herein
and therein and the Buyer Ancillary Agreements and the Seller Ancillary
Agreements contain the entire understanding of the parties hereto with regard to
the subject matter contained herein or therein, and supersede all prior written
or oral agreements, understandings or letters of intent between or
-29-
<PAGE>
among any of the parties hereto. This Agreement shall not be amended, modified
or supplemented except by a written instrument signed by an authorized
representative of each of the parties hereto.
Section 12.5. Successors and Assigns.
----------------------
(a) The rights of each party under this Agreement and the Coordinating
Agreement shall not be assignable without the written consent of the other
party; provided, however, that no such assignment shall relieve the assigning
party from any of its duties or obligations under this Agreement or the
Coordinating Agreement.
(b) This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their successors and permitted assigns. Nothing in this
Agreement, expressed or implied, is intended or shall be construed to confer
upon any Person other than the parties and successors and assigns permitted by
this Section 12.5 any right, remedy, benefit or claim under or by reason of this
------------
Agreement.
Section 12.6. Interpretation.
--------------
(a) Article titles and headings to sections herein are inserted for
convenience of reference only and are not intended to be part of or to affect
the meaning or interpretation of this Agreement. The Schedules referred to
herein shall be construed with and as an integral part of this Agreement to the
same extent as if they were set forth herein.
(b) This Agreement and the Schedules hereto have been mutually prepared,
negotiated and drafted by each of the parties hereto and thereto. The parties
agree that the terms of this Agreement shall be construed and interpreted
against each party in the same manner and that no such provisions shall be
construed or interpreted more strictly against one party on the assumption that
an instrument is to be construed more strictly against the party which drafted
the agreement.
Section 12.7. Waivers. Any term or provision of this Agreement may be
-------
waived, or the time for its performance may be extended, pursuant to a written
action by the party or parties entitled to the benefit thereof. Any such waiver
shall be validly and sufficiently authorized for purposes of this Agreement if,
as to any party, it is authorized in writing by an authorized representative of
such party. Subject to Sections 8.1 and 8.2, the failure of any party hereto to
------------ ---
enforce at any time any provision of this Agreement shall not be construed to be
a waiver of such provision, nor in any way to affect the validity of this
Agreement or any part hereof or the right of any party thereafter to enforce
each and every such provision. No waiver of any breach of this Agreement shall
be held to constitute a waiver of any other or subsequent breach.
Section 12.8. Expenses. Subject to the provisions of Section 9.3 and of the
-------- -----------
Coordinating Agreement, regardless of whether the transactions provided for in
this Agreement are consummated, each party hereto will pay its own costs and
expenses incident to the negotiation, preparation and performance of this
Agreement, including the fees, expenses and disbursements of its counsel,
financial advisors, and accountants. GNB has not borne and will not bear any
such costs or expenses.
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<PAGE>
Section 12.9. Partial Invalidity. Wherever possible, each provision hereof
------------------
shall be interpreted in such manner as to be effective and valid under
applicable law, but in case any one or more of the provisions contained herein
shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect, such provision shall be ineffective to the extent, but only to the
extent, of such invalidity, illegality or unenforceability without invalidating
the remainder of such invalid, illegal or unenforceable provision or provisions
or any other provisions hereof, unless such a construction would be
unreasonable.
Section 12.10. Execution in Counterparts. This Agreement may be executed in
-------------------------
one or more counterparts, each of which shall be considered an original
instrument, and shall become binding when one or more counterparts have been
signed by each of the parties hereto and delivered to each of Seller and Buyer.
Section 12.11. Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with the internal laws of the State of Illinois, U.S.A.
without giving effect to any choice of laws provisions which may direct the
application of the laws of another jurisdiction.
Section 12.12. Further Assurances and Cooperation.
----------------------------------
(a) From and after the date of this Agreement, upon the request of either
Seller or Buyer or any of their respective Affiliates, the other party and its
Affiliates shall execute and deliver such instruments, documents or other
writings as may be reasonably necessary or desirable to confirm and carry out
and to effectuate fully the intent and purposes of this Agreement.
(b) After the Closing, on reasonable advance notice, Buyer shall cause GNB to
provide Seller, Seller's Affiliates (including but not limited to the Affiliate
referenced in Section 11.1), and any advisor retained by Seller or its
------------
Affiliates with reasonable access to the management and properties, and books,
records, and documents (which were in existence on the Closing) of GNB, during
normal business hours and in a manner which does not unreasonably interfere with
GNB, for any reasonable purpose including, but not limited to, the fulfillment
of Seller's responsibilities under Section 4.1(a) of the Coordinating Agreement
--------------
and the enforcement of Seller's and its Affiliates' rights under Article 2 of
---------
the Coordinating Agreement and clause (iii) of Section 4.2(a) of the
-------------
Coordinating Agreement. As reasonably necessary, Seller, Seller's Affiliates,
and any advisor retained by Seller or its Affiliates shall be entitled to make
copies of such books, records, and documents at their expense. If Buyer shall
desire at any time to dispose of any such books, records, or documents, Buyer
shall, prior to such disposition, give Seller a reasonable opportunity to
segregate and remove such books, records, and documents as Seller may select.
The obligations of Buyer pursuant to this Section 12.12(b) shall survive the
----------------
Closing indefinitely.
Section 12.13. No Reliance. The provisions of this Agreement are intended for
-----------
the sole benefit of Buyer and Seller and shall not inure to the benefit of any
other Person, other than successors and permitted assigns of Buyer and Seller,
whether as third party or otherwise.
Section 12.14. Disclosure Schedules. The Disclosure Schedules is hereby
--------------------
incorporated by reference into and made a part of this Agreement. The inclusion
of any item in the Disclosure Schedules is intended to qualify the
representations and warranties contained in this Agreement,
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<PAGE>
and to set forth other information required by this Agreement. Disclosure of
information in any one of the Disclosure Schedules shall be deemed to be a
disclosure with respect to every Section of this Agreement notwithstanding the
presence or absence of a cross-reference to the Disclosure Schedules under other
Sections of this Agreement if the meaning of such disclosure in the context of
such other Section is reasonably ascertainable. Disclosure of information in the
Disclosure Schedules shall not be deemed to be an admission by the Seller that
such information is material for the purposes of this Agreement.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed the day and year first above written.
SELLER:
PACIFIC DUNLOP HOLDINGS
(SINGAPORE) PTE. LTD.
By its duly appointed attorney:
_____________________________________________
Name: Martin M. Hudson
Title: Attorney in Fact
BUYER:
EXIDE HOLDING ASIA PTE. LIMITED
By its Director duly authorized:
Signature:___________________________________
Name:________________________________________
Title:_______________________________________
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<PAGE>
TRADEMARK PURCHASE AGREEMENT
Dated as of June 28, 2000
between
PD Licencing Pty Ltd, as Seller;
and
Exide Australia Pty Ltd, as Buyer.
<PAGE>
<TABLE>
<S> <C>
ARTICLE I. DEFINITIONS.................................................... 1
Section 1.1. Definitions................................................. 1
ARTICLE II. PURCHASE AND SALE.............................................. 2
Section 2.1. Sale of Trademarks.......................................... 2
Section 2.2. Assumed Liabilities......................................... 3
Section 2.3. Coordinating Agreement...................................... 3
Section 2.4. Ownership and Risk.......................................... 3
ARTICLE III. PURCHASE PRICE................................................. 3
ARTICLE IV. CLOSING........................................................ 3
Section 4.1. Closing..................................................... 3
Section 4.2. Documents to be Delivered to Buyer.......................... 4
Section 4.3. Documents to be Delivered to Seller......................... 4
Section 4.4. Form of Documents........................................... 4
ARTICLE V. REPRESENTATIONS AND WARRANTIES OF SELLER....................... 5
Section 5.1. Organization................................................ 5
Section 5.2. Power and Authority; Agreement Binding...................... 5
Section 5.3. Absence of Conflicts........................................ 5
Section 5.4. Title to Assets............................................. 6
Section 5.5. Trademarks.................................................. 6
Section 5.6. No Litigation............................................... 6
Section 5.7. No Advisor.................................................. 6
ARTICLE VI. REPRESENTATIONS AND WARRANTIES OF BUYER........................ 6
Section 6.1. Organization................................................ 6
Section 6.2. Power and Authority......................................... 7
Section 6.3. Agreement Binding........................................... 7
Section 6.4. Absence of Conflicts........................................ 7
Section 6.5. No Litigation............................................... 7
Section 6.6. No Advisor.................................................. 8
ARTICLE VII. ACTION PRIOR TO THE CLOSING DATE............................... 8
ARTICLE VIII. CONDITIONS TO CLOSING.......................................... 8
Section 8.1. Conditions to the Obligations of the Buyer.................. 8
Section 8.2. Conditions to the Obligations of Seller..................... 9
Section 8.3. Best Efforts................................................ 9
ARTICLE IX. TERMINATION.................................................... 9
Section 9.1. Termination................................................. 9
Section 9.2. Notice of Termination....................................... 10
Section 9.3. Effect of Termination....................................... 10
ARTICLE X. EXCLUSIVITY OF REMEDY.......................................... 10
Section 10.1. Indemnification by Seller................................... 10
Section 10.2. Indemnification by Buyer.................................... 11
Section 10.3. Exclusivity of Remedy....................................... 11
ARTICLE XI. GENERAL PROVISIONS............................................. 11
Section 11.1. Notices..................................................... 11
Section 11.2. Confidential Information.................................... 12
Section 11.3. No Public Announcement...................................... 13
Section 11.4. Entire Agreement; Amendments................................ 13
</TABLE>
<PAGE>
<TABLE>
<S> <C>
Section 11.5. Successors and Assigns...................................... 13
Section 11.6. Interpretation.............................................. 13
Section 11.7. Waivers..................................................... 14
Section 11.8. Expenses.................................................... 14
Section 11.9. Partial Invalidity.......................................... 14
Section 11.10. Execution in Counterparts................................... 14
Section 11.11. Governing Law............................................... 14
Section 11.12. Further Assurances and Cooperation.......................... 15
Section 11.13. No Reliance................................................. 15
Section 11.14. Disclosure Schedules........................................ 15
</TABLE>
<PAGE>
TRADEMARK PURCHASE AGREEMENT
This TRADEMARK PURCHASE AGREEMENT, dated as of June 28, 2000 (the "Agreement")
is executed by and between PD LICENCING PTY LTD, ACN 006 599 131, of Level 41,
101 Collins Street, Melbourne, Victoria 3000, Australia ("Seller"), and EXIDE
AUSTRALIA PTY LTD, ACN 093 272 005, a corporation incorporated under the laws of
the State of Victoria ("Buyer").
WHEREAS, Seller is legally and beneficially entitled to be registered as the
proprietor of certain trademarks used in the Business, as that term is defined
in the Coordinating Agreement; and
WHEREAS, Buyer desires to purchase from Seller, and Seller desires to sell to
Buyer, all of such trademarks on the terms and subject to the conditions set
forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, Buyer and Seller agree as follows:
ARTICLE I.
DEFINITIONS
Section 1.1. Definitions
-----------
In this Agreement, the following terms have the meanings specified or referred
to in this Section 1.1 and shall be equally applicable to both the singular and
-----------
plural forms. Any agreement referred to below shall mean such agreement as
amended, supplemented and modified from time to time to the extent permitted by
the applicable provisions thereof and by this Agreement.
"Action" means any lawsuit, arbitration, or governmental proceeding or
investigation, whether at law or in equity.
"Affiliate" means, with respect to any Person, any other Person which directly
or indirectly controls, is controlled by or is under common control with such
Person.
"Business Day" means a day other than Saturday, Sunday or a day on which United
States national banks are closed.
"Buyer Ancillary Agreements" means all agreements, instruments and documents
being or to be executed and delivered by Buyer under this Agreement.
"Coordinating Agreement" means that certain Coordinating Agreement dated as of
May 9, 2000 between Pacific Dunlop Holdings (USA) Inc, and Exide Corporation, as
amended and supplemented from time to time.
"Court Order" means any judgment, order, award or decree of any foreign,
federal, state or local court, tribunal or governmental agency and any award in
any arbitration proceeding.
<PAGE>
"Disclosure Schedules" means the Disclosure Schedules attached to and made a
part of this Agreement, as modified pursuant to Section 5.7 of the Coordinating
Agreement.
"Encumbrance" means any lien, charge, security interest, mortgage, pledge, power
of sale, easement, encroachment, covenant, restriction on transfer or other
restriction on use or defect in title or other encumbrances.
"Expenses" means any and all reasonable expenses incurred in connection with
investigating, defending or asserting any Action or overtly threatened Action
(including court filing fees, court costs, arbitration fees or costs, witness
fees, and reasonable fees and disbursements of legal counsel, investigators,
expert witnesses, accountants and other professionals).
"Governmental Body" means any foreign, Australian, state or local governmental
authority, agency, or regulatory body.
"Knowledge of the Seller" or similar phrases means matters actually known to:
Thomas Minner, Thomas Smith, Barbara Hatcher or Martin Hudson.
"Losses" means losses, obligations, liabilities, settlement payments, awards,
judgments, fines, assessments, penalties, and damages.
"Material Adverse Effect" means a material adverse effect on the financial
condition, results of operations or operations of the Business taken as a whole.
"Permitted Encumbrances" means the Encumbrances specifically set forth on
Schedule 1.1 hereto.
------------
"Person" means any individual, corporation, partnership, limited liability
company or corporation, joint venture, association, joint-stock company, trust,
unincorporated organization or Governmental Body.
"Requirements of Law" means any foreign, federal, state or local law, statute,
regulation, code or ordinance of any Governmental Body currently in effect.
"ROW Agreements" has the meaning specified in the Coordinating Agreement.
"Seller Ancillary Agreements" means all agreements, instruments and documents
being or to be executed and delivered by the Seller under this Agreement.
"US Agreement" means that certain Stock Purchase Agreement dated May 9, 2000
between Pacific Dunlop Holdings (USA) Inc. and Exide Corporation.
-2-
<PAGE>
ARTICLE II.
PURCHASE AND SALE
Section 2.1. Sale of Trademarks. Upon the terms and subject to the conditions
------------------
of this Agreement, on the Closing Date, Seller shall sell, transfer, assign,
convey and deliver to Buyer, and Buyer shall purchase from Seller, all of
Seller's right, title and interest in and all trademarks, service marks, logos
listed on Schedule 2.1 together with all of the goodwill associated therewith
------------
(the "Trademarks");
Section 2.2. Coordinating Agreement
----------------------
The parties agree that nothing in this Agreement is intended to exclude, or
reduce the operation or effect of, the indemnities and limitations contained in
Article 4 of the Coordinating Agreement.
Section 2.3. Ownership and Risk
------------------
Until Closing, the Seller remains the owner of and bears all risks in connection
with the Trademarks. On Closing, property in and risk of the Trademarks passes
to the Buyer.
ARTICLE III.
PURCHASE PRICE
The purchase price (the "Purchase Price") shall be equal to One Thousand United
States Dollars (US$1,000) (subject to the adjustments provided for in the
Coordinating Agreement). At the Closing, Buyer shall pay the Purchase Price to
Seller by wire transfer of immediately available funds to such bank account as
Seller shall direct in writing. After Closing, the Purchase Price shall be
adjusted pursuant to the Coordinating Agreement.
ARTICLE IV.
CLOSING
Section 4.1. Closing
-------
The closing of the purchase and sale of the Trademarks (the "Closing") shall be
consummated at 10:00 a.m. local Chicago time on the last business day of the
month in which the last of the conditions specified in Article 8 is satisfied or
waived, at the offices of Gardner, Carton & Douglas at 321 North Clark Street,
in Chicago, Illinois, or at such other time or place as shall be agreed upon by
Buyer and Seller. Notwithstanding the foregoing, if the date upon which the
last of the conditions specified in Article 8 is satisfied or waived is five (5)
(or fewer) Business Days before the last day of the month, then the Closing
shall be consummated on the fifth (5th) Business Day following the date on which
the last of such conditions were satisfied or waived, or such other date as may
be agreed upon by Buyer and Seller. The time and date on which the Closing is
actually held is referred to herein as the "Closing Date." The Closing shall be
effective as of the close of business on the Closing Date.
-3-
<PAGE>
Section 4.2. Documents to be Delivered to Buyer
----------------------------------
At the Closing, Seller shall deliver or cause to be delivered to Buyer:
(a) a certificate of the secretary or an assistant secretary of Seller in a
form reasonably satisfactory to Buyer certifying as to the accuracy of the
Seller's representations and warranties at and as of the Closing and that
Seller has performed and complied with all of the terms, provisions and
conditions to be performed and complied with by Seller at or before the
Closing;
(b) a certificate of the secretary or an assistant secretary of Seller in a
form reasonably satisfactory to Buyer dated the Closing Date, certifying as
to: (i) Seller's Memorandum and Articles of Association; (ii) the
resolutions of Seller's board of directors authorizing the execution and
performance of this Agreement and the transactions contemplated hereby; and
(iii) incumbency and signatures of the officers executing this Agreement
and any Seller Ancillary Agreement;
(c) documentation sufficient to convey by transfer the Trademarks to Buyer from
Seller; and
(d) such other documents as Buyer or its counsel may reasonably request to
effect a transfer of the Trademarks.
Section 4.3. Documents to be Delivered to Seller
-----------------------------------
At the Closing, Buyer shall, in addition to the payment under Section 3.1 above,
-----------
deliver to Seller:
(a) a certificate of the secretary or an assistant secretary of Buyer in a form
reasonably satisfactory to Seller certifying as to the accuracy of the
Buyer's representations and warranties at and as of the Closing and that
Buyer has performed and complied with all of the terms, provisions and
conditions to be performed and complied with by Buyer at or before the
Closing;
(b) a certificate of the secretary or an assistant secretary of Buyer in a form
reasonably satisfactory to Seller, dated the Closing Date, certifying as
to: (i) Buyer's Memorandum and Articles of Association; (ii) the
resolutions of Buyer's board of directors authorizing the execution and
performance of this Agreement and the transactions contemplated hereby; and
(iii) incumbency and signatures of the officers executing this Agreement
and any Buyer Ancillary Agreement;
(c) such other certificates and documents as Seller or its counsel may
reasonably request to effect closing of this transaction.
Section 4.4. Form of Documents
-----------------
The documents and instruments referred to in Sections 4.2 and 4.3 shall be
------------ ---
satisfactory as to form to counsel for the party to whom they are delivered.
-4-
<PAGE>
ARTICLE V.
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
Section 5.1. Organization
------------
Seller is a corporation duly organized, validly existing and in good standing
under the laws of the State of Victoria. Seller is not in violation of any
provision of its Memorandum and Articles of Association.
Section 5.2. Power and Authority; Agreement Binding
--------------------------------------
Seller has all requisite corporate power and authority to execute and deliver
this Agreement and the Seller Ancillary Agreements and to perform its
obligations hereunder and thereunder and to own or hold under lease or licence
its properties and assets. Seller's execution of this Agreement has been duly
authorized and approved by all necessary corporate action. This Agreement has
been and the Seller Ancillary Agreements will be duly executed and delivered by
Seller and, assuming due authorization, execution, and delivery by Buyer, is and
will be the legal, valid and binding obligation of Seller enforceable against
Seller in accordance with their respective terms, subject to general principles
of equity and except as enforceability may be limited by applicable bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium or other similar
laws of general application relating to creditors' rights generally.
Section 5.3. Absence of Conflicts
--------------------
Except as set forth in Schedule 5.3, the execution, delivery and performance of
------------
this Agreement and the Seller Ancillary Agreements, and the consummation of the
transactions contemplated hereby and thereby, will not:
(a) conflict with, result in a breach of the terms, conditions or provisions
of, or constitute a default, an event of default or an event creating
rights of acceleration, termination or cancellation, or result in the
termination of or result in the creation, imposition or crystallisation of
any Encumbrance upon the Trademarks under: (i) any note, instrument,
contract, agreement, mortgage, indenture, lease, license or franchise to
which Seller is a party or by which it or any of its assets is bound; (ii)
any Court Order; or (iii) any Requirements of Law; except for any of the
foregoing which, individually or in the aggregate, is or are not likely to
hinder or impair the consummation of the transactions contemplated hereby;
or
(b) require the approval, consent, authorization or act of, or the making by
Seller or any Affiliate of Seller of any declaration, notification, filing
or registration with any Person, except for any of the foregoing which,
individually or in the aggregate, if not taken, is or are not likely to
have a Material Adverse Effect or materially hinder or impact the
consummation of the transactions contemplated by this Agreement.
-5-
<PAGE>
Section 5.4. Title to Assets
---------------
Seller is the exclusive and absolute owner and has good title to all of the
Trademarks free and clear of all Encumbrances, except for: (a) Permitted
Encumbrances; and (b) other exceptions disclosed in Schedule 5.4.
------------
Section 5.5. Trademarks
----------
(a) Except as set forth on Schedule 2.1, there are no material trademarks or
------------
trademark registrations, service marks or service mark registrations, or
any applications to register any of the foregoing owned by Seller and
employed in the Business substantially as currently conducted.
(b) Except as noted on Schedule 2.1, each item constituting a Trademark has
------------
been duly registered, filed or issued, as the case may be, and such
registrations, filings and issuances remain in full force and effect.
(c) Except as set forth on Schedule 5.5(C), Seller owns and possesses all
---------------
right, title and interest in and to the Trademarks, and has not received
written notice of any claim by any Person contesting the validity,
enforceability, use, or ownership of any Trademarks. To the Knowledge of
Seller, except as set forth in Schedule 5.5(C), no Person is infringing the
--------------
rights of the Seller with respect to any Trademarks. Except as set forth
in Schedule 5.5(c), there are no material licenses to any Person with
respect to the Trademarks.
Section 5.6. No Litigation
-------------
There is no Action pending or, to the Knowledge of Seller, threatened which
questions the legality or propriety of the transactions contemplated by this
Agreement or the Seller Ancillary Agreements or which would impair the
consummation of the transactions contemplated hereby and there has not been to
the Knowledge of Seller, any claim asserted by any Person that could lead to
such an Action.
Section 5.7. No Advisor
----------
Neither Seller nor any Affiliate of Seller nor any Person acting on its or their
behalf has retained any advisor, broker, investment banker or financial advisor
in connection with this Agreement or any transaction contemplated hereby for
which Buyer may be liable.
ARTICLE VI.
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Seller as follows:
Section 6.1. Organization
------------
Buyer is a corporation duly organized, validly existing and in good standing
under the laws of the State of Victoria. Buyer is not in violation of any
provision of its Memorandum and Articles of Association. Buyer is duly
qualified to do business and is in good standing as a foreign
-6-
<PAGE>
corporation in each of the jurisdictions in which Buyer's operations require
that it qualify to transact business as a foreign corporation, except for those
jurisdictions where the failure to so qualify is not likely to have a material
adverse effect on Buyer's business or financial condition or the ability of
Buyer to lawfully consummate the transactions contemplated by this Agreement in
all material respects.
Section 6.2. Power and Authority
-------------------
Buyer has the full corporate power and authority to execute and deliver this
Agreement and the Buyer Ancillary Agreements, to perform its obligations
hereunder and thereunder, and to own and lease its property and conduct its
operations as currently conducted. Buyer's execution, delivery and performance
of this Agreement has been duly authorized and approved by all necessary
corporate action.
Section 6.3. Agreement Binding
-----------------
This Agreement and the Buyer Ancillary Agreements have been duly executed and
delivered by Buyer, and assuming due authorization, execution and delivery by
Seller, is and will be the legal, valid and binding obligation of Buyer
enforceable in accordance with their respective terms, subject to general
principles of equity and except as enforceability may be limited by applicable
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other
similar laws of general application relating to creditor's rights generally.
Section 6.4. Absence of Conflicts
--------------------
The execution, delivery and performance of this Agreement and the Buyer
Ancillary Agreements and the consummation of the transactions contemplated
hereby and thereby will not:
(a) conflict with, result in a breach of the terms, conditions or provisions
of, or constitute a default, an event of default or an event creating
rights of acceleration, termination or cancellation, result in termination
of or result in the creation or imposition of any Encumbrance under: (i)
any term or provision of the Memorandum and Articles of Association of
Buyer, (ii) any note, instrument, contract, agreement, mortgage, indenture,
lease, license or franchise to which Buyer is a party or by which it or any
of its assets are bound, (iii) any Court Order, or (iv) any Requirements of
Law; except in each case, for any of the foregoing which, individually or
in the aggregate, is or are not likely to have a material adverse effect on
Buyer or its business taken as a whole or hinder or impair the consummation
of the transactions contemplated hereby; or
(b) require the approval, consent, authorization or act of, or the making by
Buyer of any declaration, notification, filing or registration with, any
Person, except in each case, for any of the foregoing which, individually
or in the aggregate, if not taken, is or are not likely to have a material
adverse effect on Buyer or its business taken as a whole or materially
hinder or impair the consummation of the transactions contemplated hereby.
-7-
<PAGE>
Section 6.5. No Litigation
-------------
There is no Action pending or, to the knowledge of Buyer, threatened which
questions the legality or propriety of the transactions contemplated by this
Agreement or the Buyer Ancillary Agreements or which would impair the
consummation of the transactions contemplated hereby and there has not been to
the knowledge of Buyer, any claim asserted by any Person that could lead to such
an Action.
Section 6.6. No Advisor
----------
Neither Buyer nor any Affiliate of Buyer nor any Person acting on its or their
behalf has retained any advisor, broker, investment banker or financial advisor
in connection with this Agreement or any transaction contemplated hereby for
which Seller may be liable.
ARTICLE VII.
ACTION PRIOR TO THE CLOSING DATE
Buyer and Seller covenant and agree that between the date hereof and the Closing
Date, Buyer and Seller shall refrain from taking any action that would render
any representation or warranty contained in this Agreement inaccurate as of the
Closing Date, and Buyer and Seller shall promptly notify the other of any
Action, investigation, or other proceeding, that shall be instituted or
threatened against such party to restrain, prohibit or otherwise challenge the
legality of any transaction contemplated by this Agreement.
ARTICLE VIII.
CONDITIONS TO CLOSING
Section 8.1. Conditions to the Obligations of the Buyer
------------------------------------------
The obligations of Buyer under this Agreement shall, at the option of Buyer, be
subject to the satisfaction, on or prior to the Closing Date, of each of the
following conditions:
(a) No Misrepresentation or Breach of Covenants and Warranties. Seller shall
----------------------------------------------------------
have complied in all material respects with its covenants and agreements
herein; each of the representations and warranties of Seller contained in
this Agreement and each of the Seller Ancillary Agreements shall be true
and correct in all material respects on the Closing Date as though made on
the Closing Date (except to the extent that they expressly relate to an
earlier date), except for changes therein specifically permitted by this
Agreement or resulting from any transaction expressly consented to in
writing by Buyer; and there shall have been delivered to Buyer a
certificate to such effect, dated the Closing Date, signed by a director of
Seller.
(b) Closing Documents. Buyer shall have received from Seller and counsel to
-----------------
Seller the closing documents contemplated by Section 4.2.
-----------
(c) US Agreement. The transactions contemplated by the US Agreement shall have
------------
closed simultaneously with the Closing.
-8-
<PAGE>
Notwithstanding the failure of any one or more of the foregoing conditions,
Buyer may, at its option, proceed with the Closing without satisfaction, in
whole or in part, of any one or more of such conditions and without written
waiver; provided however, that in so proceeding with the Closing, and
notwithstanding any other provision of this Agreement, Buyer shall be deemed to
have waived any such failure and any rights or remedies it may have against
Seller by reason of such failure.
Section 8.2. Conditions to the Obligations of Seller
---------------------------------------
The obligations of Seller under this Agreement shall, at the option of Seller,
be subject to the satisfaction, on or prior to the Closing Date, of each of the
following conditions:
(a) No Misrepresentation or Breach of Covenants and Warranties. There shall
----------------------------------------------------------
have been no material breach by Buyer in the performance of any of its
covenants and agreements herein which shall not have been remedied or
cured; each of the representations and warranties of Buyer contained in
this Agreement shall be true and correct in all material respects on the
Closing Date as though made on the Closing Date (except to the extent that
they expressly relate to an earlier date), except for changes therein
specifically permitted by this Agreement or resulting from any transaction
expressly consented to in writing by Seller; and there shall have been
delivered to Seller a certificate to such effect, dated the Closing Date
and signed by the President or Vice President of Buyer.
(b) Closing Documents. Seller shall have received from Buyer and counsel to
-----------------
Buyer the closing documents contemplated by Section 4.3.
-----------
(c) Payment of Purchase Price. Buyer shall have tendered payment of the
-------------------------
Purchase Price.
(d) US Agreement. The transactions contemplated by the US Agreement shall have
------------
closed simultaneously with the Closing.
Notwithstanding the failure of any one or more of the foregoing conditions,
Seller may, at its option, proceed with the Closing without satisfaction, in
whole or in part, of any one or more of such conditions and without written
waiver; provided however, that in so proceeding with the Closing, and
notwithstanding any other provision of this Agreement, Seller shall be deemed to
have waived any such failure and any rights or remedies it may have against
Buyer by reason of such failure.
SECTION 8.3. Best Efforts
------------
The Seller and the Buyer will each use their best efforts to obtain the
satisfaction of the conditions in Section 8.1 and 8.2, respectively, and each
----------- ---
will, from time to time, upon request from the other, keep the other fully
informed as to the progress in obtaining this satisfaction of conditions.
-9-
<PAGE>
ARTICLE IX.
TERMINATION
SECTION 9.1. Termination
-----------
Anything contained in this Agreement to the contrary notwithstanding, this
Agreement may be terminated at any time prior to the Closing Date:
(a) by the mutual written consent of Buyer and Seller;
(b) by Buyer or Seller if the Closing shall not have occurred on or before
December 31, 2000 unless:
(i) all conditions to Closing have previously been satisfied or
waived; and
(ii) the Closing has not then occurred solely because the date for
Closing specified in Section 3.1 has not yet occurred.
-----------
and unless such failure to close is due primarily to the breach by the
party seeking termination of its representations and warranties contained
herein.
(c) by Buyer in the event of any material breaches by Seller of Seller's
agreements, representations or warranties contained herein, which Seller
has failed to remedy or cure within twenty-one (21) days after receipt of
notice from Buyer requesting that such breaches be remedied or cured; or
(d) by Seller in the event of any material breaches by Buyer of Buyer's
agreements, covenants, representations or warranties contained herein,
which Buyer has failed to remedy or cure within twenty-one (21) days after
receipt of notice from Seller requesting that such breaches be remedied or
cured; or
(e) by Buyer or Seller if any court shall have issued a Court Order or if any
Governmental Body shall have issued a decree or ruling or taken any other
action permanently restraining, enjoining or otherwise prohibiting the
consummation of the transactions contemplated hereby.
SECTION 9.2. Notice of Termination
---------------------
Any party desiring to terminate this Agreement pursuant to Section 9.1 shall
-----------
give written notice of such termination to the other parties to this Agreement.
SECTION 9.3. Effect of Termination
---------------------
In the event that this Agreement shall be terminated pursuant to this Article 9,
all further obligations of the parties under this Agreement (other than Sections
--------
11.2, 11.8 and 11.11 of this Agreement and Sections 5.2, 5.3 and 5.4 of the
---- -- ----- ------------------ ----
Coordinating Agreement) shall be terminated without further liability of any
party to the other, provided that nothing herein shall relieve either party from
liability for its willful breach of this Agreement.
-10-
<PAGE>
ARTICLE X.
EXCLUSIVITY OF REMEDY
SECTION 10.1. Indemnification by Seller
-------------------------
Seller's sole and exclusive indemnification obligations under this Agreement are
set forth in the Coordinating Agreement.
SECTION 10.2. Indemnification by Buyer
------------------------
Buyer's sole and exclusive indemnification obligations under this Agreement are
set forth in the Coordinating Agreement.
SECTION 10.3. Exclusivity of Remedy
---------------------
Except as provided in Section 9.3, with respect to any breach by either party of
-----------
its representations, warranties, covenants, or agreements in this Agreement, the
respective Buyer Ancillary Agreements or Seller Ancillary Agreements, the US
Agreement or the ROW Agreements, and the transactions contemplated hereby and
thereby, the sole and exclusive remedy of the other party (in contract, tort,
for contribution under Requirements of Law, or otherwise) shall be the
indemnification provided in the Coordinating Agreement. In view of this
exclusivity of remedy provision, Buyer and Seller covenant and agree for
themselves and their respective Affiliates that they will not bring, maintain,
join or prosecute any Action or other proceeding against the other or its
Affiliates for breach of this Agreement except as set out in the Coordinating
Agreement.
ARTICLE XI.
GENERAL PROVISIONS
SECTION 11.1. Notices
-------
Any notice, request, instruction or other document to be given hereunder shall
be in writing and: (a) delivered personally; (b) sent by reputable overnight
courier; or (d) transmitted by facsimile, according to the instructions set
forth below. Such notices shall be sent to the following addresses and/or
facsimile numbers and shall be deemed given: (x) if delivered personally, at the
time delivered; (y) if sent by reputable overnight courier, at the time sent, or
(z) if transmitted by facsimile, at the time when receipt is confirmed by the
sending facsimile machine.
-11-
<PAGE>
If to Seller, to:
PD Licencing Pty Ltd
c/- Pacific Dunlop Limited
Level 41
101 Collins Street
Melbourne, Victoria 3000
Australia
Attention: Company Secretary
Facsimile: (613) 9270 7300
with a copy to:
Gardner, Carton & Douglas
321 N. Clark Street
Suite 3400
Chicago, Illinois 60610
U.S.A.
Attention: Mr. Robert J. Wilczek
Facsimile: 312-644-3381
If to Buyer, to:
Exide Australia Pty Ltd
c/- Exide Corporation
2901 Hubbard Road
Ann Arbor, Michigan 48105
U.S.A.
Attention: General Counsel
Facsimile: 734-827-2575
with a copy to:
Kirkland & Ellis
200 E. Randolph Drive
Chicago, Illinois 60601
Attention: Mr. Carter W. Emerson P.C.
Facsimile: 312-861-2200
or to such other address as such party may indicate by a notice delivered to the
other parties hereto in accordance with the provisions of this Section 11.1.
------------
SECTION 11.2. Confidential Information
------------------------
Each party agrees that it will treat in confidence all documents, materials and
other information which it shall have obtained regarding any of the other
parties during the course of the negotiations leading to the consummation of the
transactions contemplated hereby (whether
-12-
<PAGE>
obtained before or after the date of this Agreement), the investigation provided
for herein and the preparation of this Agreement and other related documents
("Confidential Information"), and, in the event the transactions contemplated
hereby shall not be consummated, each party will return to the other party all
copies of nonpublic Confidential Information which have been furnished in
connection therewith. Confidential Information shall not be communicated to any
third Person (other than the parties' respective counsel, accountants, financial
advisors, or environmental consultants). No party shall use any Confidential
Information in any manner whatsoever except solely for the purpose of evaluating
the proposed transaction. Notwithstanding the foregoing, after the Closing,
Buyer may use or disclose any Confidential Information related to the Business.
The Seller shall not at any time after the Closing disclose any Confidential
Information relating to the Business. The obligation of each party to treat
Confidential Information in confidence shall not apply to any Confidential
Information which (i) is or becomes available to such party from a source other
than such party, (ii) is or becomes available to the public other than as a
result of disclosure by such party or its agents, (iii) is required to be
disclosed under applicable law or judicial process, but only to the extent it
must be disclosed, or (iv) as to which such party reasonably deems disclosure
necessary to obtain any of the consents or approvals contemplated hereby.
SECTION 11.3. No Public Announcement
----------------------
Neither Buyer nor Seller shall, without the approval of the other party, issue
any press release or other public announcement concerning the transactions
contemplated by this Agreement. Notwithstanding the foregoing, either party may
issue a press release or other public announcement concerning the transactions
contemplated by this Agreement to the extent that such party or its Affiliates
shall be so obligated by law, or to comply with accounting, Securities and
Exchange Commission, New York Stock Exchange or Australian Stock Exchange
disclosure obligations, provided that such party shall be obligated to give the
other party prior notice of such press release or other public announcement if
prior notice is commercially feasible.
SECTION 11.4. Entire Agreement; Amendments
----------------------------
This Agreement, the Coordinating Agreement, the US Agreement, the ROW Agreements
and the Exhibits and Schedules referred to herein and therein and the Buyer
Ancillary Agreements and the Seller Ancillary Agreements contain the entire
understanding of the parties hereto with regard to the subject matter contained
herein or therein, and supersede all prior written or oral agreements,
understandings or letters of intent between or among any of the parties hereto.
This Agreement shall not be amended, modified or supplemented except by a
written instrument signed by an authorized representative of each of the parties
hereto.
SECTION 11.5. Successors and Assigns
----------------------
(a) The rights of each party under this Agreement and the Coordinating
Agreement shall not be assignable without the written consent of the other
party; provided however, that no such assignment shall relieve the
assigning party from any of its duties or obligations under this Agreement
or the Coordinating Agreement.
-13-
<PAGE>
(b) This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their successors and permitted assigns. Nothing in this
Agreement, expressed or implied, is intended or shall be construed to
confer upon any Person other than the parties and successors and assigns
permitted by this Section 11.5 any right, remedy, benefit or claim under or
------------
by reason of this Agreement.
SECTION 11.6. Interpretation
--------------
(a) Article titles and headings to sections herein are inserted for convenience
of reference only and are not intended to be part of or to affect the
meaning or interpretation of this Agreement. The Schedules and Exhibits
referred to herein shall be construed with and as an integral part of this
Agreement to the same extent as if they were set forth herein.
(b) This Agreement and the Schedules and Exhibits hereto have been mutually
prepared, negotiated and drafted by each of the parties hereto and thereto.
The parties agree that the terms of this Agreement shall be construed and
interpreted against each party in the same manner and that no such
provisions shall be construed or interpreted more strictly against one
party on the assumption that an instrument is to be construed more strictly
against the party which drafted the agreement.
SECTION 11.7. Waivers
-------
Any term or provision of this Agreement may be waived, or the time for its
performance may be extended, pursuant to a written action by the party or
parties entitled to the benefit thereof. Any such waiver shall be validly and
sufficiently authorized for purposes of this Agreement if, as to any party, it
is authorized in writing by an authorized representative of such party. Subject
to Sections 8.1 and 8.2, the failure of any party hereto to enforce at any time
------------ ---
any provision of this Agreement shall not be construed to be a waiver of such
provision, nor in any way to affect the validity of this Agreement or any part
hereof or the right of any party thereafter to enforce each and every such
provision. No waiver of any breach of this Agreement shall be held to
constitute a waiver of any other or subsequent breach.
SECTION 11.8. Expenses
--------
Subject to the provisions of the Coordinating Agreement, and US Agreement or the
ROW Agreements, regardless of whether the transactions provided for in this
Agreement are consummated, each party hereto will pay its own costs and expenses
incident to the negotiation, preparation and performance of this Agreement,
including the fees, expenses and disbursements of its counsel, financial
advisors, and accountants.
SECTION 11.9. Partial Invalidity
------------------
Wherever possible, each provision hereof shall be interpreted in such manner as
to be effective and valid under applicable law, but in case any one or more of
the provisions contained herein shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect, such provision shall be ineffective to
the extent, but only to the extent, of such invalidity, illegality or
unenforceability without invalidating the remainder of such invalid, illegal or
unenforceable
-14-
<PAGE>
provision or provisions or any other provisions hereof, unless such a
construction would be unreasonable.
SECTION 11.10. Execution in Counterparts
-------------------------
This Agreement may be executed in one or more counterparts, each of which shall
be considered an original instrument, and shall become binding when one or more
counterparts have been signed by each of the parties hereto and delivered to
each of Seller and Buyer.
SECTION 11.11. Governing Law
-------------
This Agreement shall be governed by and construed in accordance with the
internal laws of the State of Illinois, USA, without giving effect to any choice
of laws provisions which may direct the application of the laws of another
jurisdiction.
SECTION 11.12. Further Assurances and Cooperation
----------------------------------
(a) From and after the date of this Agreement, upon the request of either
Seller or Buyer or any of their respective Affiliates, the other party and
its Affiliates shall execute and deliver such instruments, documents or
other writings as may be reasonably necessary or desirable to confirm and
carry out and to effectuate fully the intent and purposes of this
Agreement.
(b) After the Closing on reasonable advance notice, Buyer shall provide Seller,
Seller's Affiliates, and any advisor retained by Seller or its Affiliates
during normal business hours with reasonable access to the management,
properties, and books, records, and documents (which were in existence on
the Closing Date) relating to the Trademarks during normal business hours
and in a manner which does not unreasonably interfere with the business of
the Buyer for any reasonable purpose including, but not limited to, the
fulfillment of Seller's responsibilities under Section 4.1(a) of the
--------------
Coordinating Agreement, the enforcement of Seller's and its Affiliates'
rights under Article 2 of the Coordinating Agreement and clause (iv) of
Section 4.2(a) of the Coordinating Agreement. As reasonably necessary,
--------------
Seller, Seller's Affiliates, and any advisor retained by Seller or its
Affiliates shall be entitled to make copies of such books, records and
documents at their expense. If Buyer shall desire at any time to dispose of
any of such books, records or documents, Buyer shall, prior to such
disposition, give Seller a reasonable opportunity, to segregate and remove
such books and records as Seller may select. The obligations of Buyer
pursuant to this Section 11.12(b) shall survive the Closing indefinitely.
----------------
(c) Seller shall pay any and all registration, filing and related fees and
costs (including attorney's and agent's fees) associated with the
recordation of assignments of the Trademarks to Seller prior to the
transfer of such Trademarks to Buyer as contemplated hereby. Buyer shall
bear all such fees and costs associated with the recordation of the
assignments of the Trademarks to Buyer.
-15-
<PAGE>
SECTION 11.13. No Reliance
-----------
The provisions of this Agreement are intended for the sole benefit of Buyer and
Seller and shall not inure to the benefit of any other Person, other than
successors and permitted assigns of Buyer and Seller, whether as third party or
otherwise.
SECTION 11.14. Disclosure Schedules
--------------------
The Disclosure Schedules are hereby incorporated by reference into and made a
part of this Agreement. The inclusion of any item in the Disclosure Schedules
is intended to qualify the representations and warranties contained in this
Agreement, and to set forth other information required by this Agreement.
Disclosure of information in any one of the Disclosure Schedules shall be deemed
to be a disclosure with respect to every Section of this Agreement,
notwithstanding the presence or absence of a cross reference to the Disclosure
Schedules under other Sections of this Agreement if the meaning of such
disclosure in the context of such other section is reasonably ascertainable.
Disclosure of information in the Disclosure Schedules shall not be deemed to be
an admission by Seller that such information is material for purposes of this
Agreement. Summaries or extracts of any documents, instruments, or other
agreements contained in the Disclosure Schedules are for the convenience of
reference only and are qualified in their entirety by reference to the
applicable document, instrument or other agreement so summarized or extracted
from.
[THE REMAINDER OF THIS PAGE IS BLANK;
SIGNATURES APPEAR ON THE FOLLOWING PAGE]
-16-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
the day and year first above written.
SELLER:
PD LICENCING PTY LTD
By its duly appointed attorney:
Name:___________________________
Signature:______________________
BUYER:
EXIDE AUSTRALIA PTY LTD
By its duly appointed attorney:
Name:___________________________
Signature:______________________
-17-
<PAGE>
Schedule 1.1
------------
Permitted Encumbrances
----------------------
None
<PAGE>
Schedule 2.1
------------
[Attach Schedule of Trademarks]
<PAGE>
Schedule 5.3
------------
Conflicts
---------
None
<PAGE>
Schedule 5.4
------------
Other Exceptions to Title
-------------------------
The Trademarks have recently been transferred to Seller by Affiliates of
Seller. As of the date hereof and as at the Closing Date certain of the transfer
documents and certificates of ownership relating to the Trademarks may not have
been registered or recorded in all jurisdictions in which such registration or
recordation is required.
<PAGE>
Schedule 5.5(C)
---------------
Claims, Infringement, Etc.
--------------------------
None
